A third man will follow two of his comrades out of prison after the Constitutional Court ruled that an out-of-court statement by an accused cannot be used as evidence against a co-accused. The court on Thursday said the common law position that such statements are not admissible as evidence must be restored.This came as the court gave reasons for ordering the release of two men in March‚ were been sentenced to serve life terms following their conviction of the 2002 murder of a policeman in the North West.The convictions of Boswell Mhlongo and Alfred Nkosi were based on out-of-court statements by four co-accused that incriminated Mhlongo and Nkosi.In reaching its decision‚ the North West High Court in Mahikeng had relied on a case in which the Supreme Court of Appeal (SCA) held in 2002 that such statements were admissible in terms of the Evidence Amendment Act.However‚ that position was overturned by the SCA in another case last year‚ when it confirmed the common law prohibition against the use of extra-curial statements against co-accused.“Admitting extra-curial admissions against a co-accused unjustifiably offends against the right to equality before the law. If the extra-curial statements here are excluded‚ there is insufficient evidence to secure convictions against (Mhlongo and Nkosi)‚” acting Judge Leona Theron said in a unanimous judgment.In another judgment‚ the court also set aside the convictions and sentence of Thembekile Molaudzi‚ who was convicted together with Mhlongo and Nkosi based on admissions made by their co-accused. It ordered Molaudzi's immediate release from prison.The challenge facing the court in Molaudzi’s matter was that it had earlier dismissed his application for leave to appeal in 2013. The legal doctrine of res judicata bars continued litigation of the same case‚ on the same issues‚ between the same parties.Theron‚ in a unanimous judgment‚ said though the court had already ruled on the merits of Molaudzi’s application‚ courts had over time expressed the view that the doctrine of res judicata should not be applied rigidly.She said res judicata was recognised as necessary for legal certainty‚ but said many jurisdictions recognised this could not be absolute.“This is because ‘to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience’.”She said the Constitutional Court was empowered to vary orders in limited circumstances‚ essentially if the order was made in error.“The present case demonstrates exceptional circumstances that cry out for flexibility on the part of this court in fashioning a remedy to protect the rights of an applicant in the position of Mr Molaudzi.”..