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)