Authored By: Joseph Thabo Maluleke
University of Free State
Case Title & Citation
The case is titled S v Ndhlovu and Others. It carries the official citation 2002 (2) SACR 325 (SCA), and is also reported as 2002 (6) SA 305 (SCA) and [2002] 3 All SA 760 (SCA). This judgment came from the Supreme Court of Appeal following an appeal from the Witwatersrand Local Division of the High Court.
Court Name & Bench
The appeal was heard in the Supreme Court of Appeal of South Africa. The bench comprised Harms JA, Cameron JA and Heher AJA. Cameron JA delivered the principal judgment, which the other members of the court concurred in.
Date of Judgment
Judgment was delivered on 31 May 2002.
Parties Involved
The appellants were the four accused persons: Vusi Vincent Ndhlovu (accused 1), Bafana Godfrey Mthethwa (accused 2), Bongani Piet Masinga (accused 3) and Jabu ‘’Sweetdreams’’ Nkosi (accused 4). All were young men who had been convicted in the trial court of murder and robbery with aggravating circumstances, and they appealed both the convictions and the sentences imposed. The respondent was the State, represented by the prosecution, which opposed the main appeal but brought a limited cross-appeal seeking certain adjustments to the sentences (particularly in relation to the treatment of the minor accused).
Facts of the Case
The incident occurred on the evening of 17 January 1999 in Katlehong, on the East Rand. Johannes Jochemus Jansen van Rensburg, a 40-year-old man who was doing plumbing and sewerage work at a construction site, was approached by four assailants. They were armed with a firearm and an iron bar and demanded his cellular phone and any money he had. When the deceased resisted, the attackers hit him with the iron bar and then shot him once in the right shoulder. The wound severed major arteries and caused severe internal damage, leading to rapid blood loss and death. The robbers took his Nokia cell phone but overlooked cash that was still in his pockets.
The police investigation moved quickly. The following day, accused 3 (Masinga) was arrested in connection with a different incident. He cooperated with the authorities and guided them to the homes of the other three accused, to the individual who had bought the stolen cell phone for a small sum (R150 – South African Rands), and eventually to the murder weapon – a 9mm Lorcin pistol, hidden in a dustbin at accused 1’s home. Ballistics tests confirmed that this pistol fired the fatal shot. During the investigation, accused 3 made oral statements to the police that implicated all four in the robbery and the shooting. Accused 4 (Nkosi), who was 17 at the time of the offence, gave a written statement to a magistrate in which he admitted taking part in the planned robbery but claimed the shooting was unexpected and not part of the original plan.
The trial commenced in the High Court around April 2000. All four accused pleaded not guilty. They repudiated their earlier statements, alleging that they had been coerced or fabricated by the police, and each advanced an alibi or outright denial of involvement. The trial judge held a trial-within-a-trial to determine the admissibility of the disavowed statements. He ruled that they had been made freely and voluntarily, and admitted them as hearsay evidence against the co-accused under section 3 of the Law of Evidence Amendment Act 45 of 1988, on the basis that their probative value was high due to corroboration from physical evidence (the recovered firearm and cell phone details) and witness testimony. This evidence played a key role in the convictions. The accused were found guilty of murder and robbery with aggravating circumstances, and minimum sentences were imposed under the Criminal Law Amendment Act 105 of 1997.
Issues Raised
The central issue on appeal was whether extra-curial informal admissions or statements made by one accused, once disavowed at trial (and thus becoming hearsay), could properly be admitted as evidence against co-accused under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 in the interests of justice. A related question was whether such admission violated the accused’s constitutional right to a fair trial under section 35(3) of the Constitution, particularly the right to challenge evidence through cross-examination. The court also had to consider whether section 3(1)(b) or section 3(1)(c) governed admissibility when the maker of the statement testified but repudiated it, and whether, even without the disputed statements, the evidence established common purpose among all four accused in committing the crimes.
Arguments of the Parties
The appellants (the accused) contended that the common law rule prohibiting the use of one accused’s extra-curial statement against a co-accused remained binding. They argued that disavowal turned the statements into unreliable hearsay, and admitting them deprived the co-accused of any meaningful opportunity to cross-examine the maker. They submitted that the Law of Evidence Amendment Act did not expressly override this common law prohibition in joint trials, that the prejudice to fair trial rights was too substantial, and that the remaining circumstantial evidence—the recovery of the firearm, the cell phone transaction and identifications—was insufficient on its own to prove participation beyond reasonable doubt.
The respondent (the State) supported the trial court’s approach. It argued that section 3(1)(c) conferred a broad discretion to admit hearsay evidence whenever the interests of justice required it, and that the probative value of these statements was exceptionally high. The State pointed to strong corroboration from independent sources: ballistic confirmation of the weapon, the cell phone buyer’s identification of some of the accused, the logical sequence of arrests and pointing-out, and the spontaneous, detailed nature of the statements themselves. It maintained that the Act was constitutionally sound, that rigid exclusion of reliable evidence would defeat justice, and that common purpose could be inferred from the coordinated and violent attack even disregarding the disputed statements, relying on authority such as S v Mgedezi 1989 (1) SA 687 (A).
Judgment
The Supreme Court of Appeal dismissed the appellants’ appeals against conviction and sentence. It allowed a limited cross-appeal by the State on sentencing matters but largely upheld the trial court’s findings. The convictions for murder and robbery with aggravating circumstances were confirmed for all four accused. The sentences remained: life imprisonment for accused 1, 2 and 3 on the murder count (with concurrent 15-year terms for the robbery), shorter concurrent sentences for accused 1’s unlawful possession of a firearm and ammunition, and reduced sentences for accused 4 (who was a minor at the time of the offence) of 18 years for murder and 10 years for robbery, to run concurrently.
Legal Reasoning
Cameron JA set out the court’s reasoning in detail. He explained that section 3 of the Law of Evidence Amendment Act introduced a flexible, modern framework for hearsay that was intended to overcome the rigidity, inflexibility and occasional absurdity of the old common law rules. The court held that disavowed extra-curial informal admissions by one accused could be admitted against co-accused under section 3(1)(c) if the interests of justice so required, meaning the probative value of the evidence had to outweigh any prejudice to the accused. Factors to be weighed included the nature of the proceedings (criminal trial), the nature of the evidence (spontaneous, detailed first-hand statements), the purpose for which it was offered (to complete the evidential picture), its probative value (high due to corroboration), the reason it was hearsay (repudiation at trial), the prejudice to the opposing party (inability to cross-examine fully, but mitigated by other evidence), and any other relevant considerations (no suggestion of fabrication or police misconduct). The court clarified that when the declarant testifies but repudiates the prior statement, admissibility falls under the discretionary test in section 3(1)(c) rather than the more automatic provision in section 3(1)(b). This approach was found to be constitutional, as it allowed judicial discretion to safeguard fair trial rights while permitting reliable evidence to be considered. The judgment referred to precedents such as S v Yelani 1989 (2) SA 43 (A) on pointing-out and S v Ramavhale 1996 (1) SACR 639 (A) on the exercise of hearsay discretion. In obiter, the court stressed caution when dealing with evidence akin to accomplice testimony and confirmed that rulings on admissibility constitute appealable questions of law.
Conclusion and Observations
This case marked an important development in South African evidence law by expanding the scope for admitting reliable hearsay in criminal proceedings, particularly where strong corroboration exists. It promoted a pragmatic balance between the pursuit of truth and the protection of fair trial rights, and it influenced practice for over a decade. The decision was later reconsidered in S v Litako 2014 (2) SACR 431 (SCA), which reasserted stricter common law limits on the use of one accused’s statement against another. Looking back, the judgment in Ndhlovu reflects the post-constitutional effort to modernise evidence rules without sacrificing fundamental protections. In cases backed by solid independent evidence, as here, the flexible approach appears justified and fair, though it serves as a reminder of the need for careful judicial scrutiny to prevent undue prejudice in joint trials.
Bibliography
S v Ndhlovu and Others 2002 (2) SACR 325 (SCA); 2002 (6) SA 305 (SCA).
S v Ndhlovu and Others (327/01) [2002] ZASCA 70 (31 May 2002) <https://www.saflii.org/za/cases/ZASCA/2002/70.html> accessed 18 February 2026.
Law of Evidence Amendment Act 45 of 1988.
Constitution of the Republic of South Africa, 1996, s 35(3).
S v Litako and Others 2014 (2) SACR 431 (SCA).
S v Mgedezi 1989 (1) SA 687 (A).
S v Yelani 1989 (2) SA 43 (A).
S v Ramavhale 1996 (1) SACR 639 (A).
