Case Note: Khanye and Another v S [2017] ZACC 29

/ / 2017, Criminal Law


The matter concerns an application for leave to appeal by Samuel Khanye (the “First Applicant”) and Victor Moyo (the “Second Applicant”) against a judgment handed down in the North West High Court, Mafikeng (“High Court”). The High Court held that the Applicants and the 5 (five) co-accused (the “Co-accused”) were guilty, based on the doctrine of common purpose for:

  1. the murder of Dingaan Makuna, a Warrant Officer, (the “Deceased”);
  2. robbery with aggravating circumstances; and
  3. unlawful possession of firearms and ammunition.

On 03 August 2002 and as the Deceased returned home, 2 (two) men entered the house and shot the Deceased 3 (three) times. He was taken to hospital and died later that night. The Applicants and the Co‑accused were arrested and pleaded not guilty. However, they were later convicted of all of the above-mentioned charges.

The state furnished evidence of extra-curial statements made by the Applicants to the investigating officer and to a Magistrate. A number of the accused had identified the Deceased’s house and the bar where they had assembled prior to proceeding to the Deceased’s house.

The accused alleged that the statements had not been made freely and voluntarily and disputed their admissibility. The accused argued that the police had assaulted them, and promised to give them money and release them on bail if they provided the statements. Accordingly, they claimed that they had acted under duress when the statements were given and thus the statements were inadmissible. A-trial-within-a-trial was held and the High Court held that the statements were admissible and thus formed part of the evidentiary material.

The First Applicant stated that 2 (two) of the Co-accused asked if he knew where they could find an Isuzu bakkie. They gave him their contact details and told him to phone them when he located the bakkie so they could hijack it. A number of days later, the First Applicant saw a bakkie and telephoned the Co-accused to inform them of its location. They met the accused at a bar with a third Co-accused and he led them to the area in which the bakkie was previously located but they could not find it. He alleged that, thereafter, they dropped him at home. He also pointed out the house of the Deceased and the bar to the investigator. He testified that he pointed out the bar to the police because they had assaulted him and that the pointing out was done under duress.

The Second Applicant stated to the Magistrate that he was not aware of the murder of a police officer. The only evidence against him was contained in the extra-curial statements by the Co-accused. When testifying, he raised an alibi that he was at a party in Limpopo during the incident.


The CC held that the Application had to be determined, without any reference to the statements of the Co-accused and in doing so the court must look at the surrounding circumstances.

The CC held that the only direct evidence against the Applicants was the extra-curial statements of the Co-accused and without the statements the remaining evidence was insufficient to prove the charges.

Accordingly, the appeal was upheld and the convictions and sentences against the accused were set aside.


Extra-curial statements of an accused are inadmissible as evidence against a co-accused.

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