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What happens to a criminal trial, when the complainant dies?
14 September 2018  | Puleng Valentine Tladi

In order for the state to stop prosecution or the Court to grant a discharge, it will depend on the charges brought against the Accused, the facts of the case, the nature of the evidence or whether or not there is an admission. I am of the opinion that ultimately it depends on whether or not the State has sufficient evidence to prove its case beyond reasonable doubt.

In instances where the accused was charged with attempted murder and the complainant (deceased) made statements pointing out the Accused as his/her attacker, after he/she was stabbed and the medical evidence of the witnesses corroborates prosecution version, the State will have no alternative, but to continue  with the prosecution. Whether or not the state will continue with the lesser charge of attempted murder or change the charge-sheet and add the charge of murder depends on the cause of death. S v Qolo (1965 (1) SA 174 (VOLUME1).  

The second instance is where the Accused is charged with Theft and the complainant has given evidence in chief but dies before cross-examination, the Court may grant a Discharge on application launched by the accused in terms of section 174 of the Criminal Procedure Act 51 of 1977 or the State may withdraw the charges brought against the Accused. The legal issue will be s 35(3) (i) of the Constitution of the Republic of South Africa of 1996, which provides that an accused person has the right to adduce and challenge evidence and the issue of ownership. S v Msimango and Another (187/2005) [2009] ZAGPJHC 34; [2009] 4 All SA 529 (GSJ) ; 2010 (1) SACR 544 (GSJ) (27 July 2009)      

Reference List:   

s v Qolo (1965) (1) SA 174(volume 1)   

S v Msimango and Another (187/2005) [2009] ZAGPJHC 34; [2009] 4 All SA 529 (GSJ) ; 2010 (1) SACR 544 (GSJ) (27 July 2009)      

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