“I have been charged with assault and was represented by a legal practitioner during the trial. The State called only the complainant to testify and no evidence whatsoever was presented to the court in order to proof that I have assaulted the complainant. In actual fact, I was not even present during the time of the alleged assault. My version was put to the witness by my legal practitioner and now my legal practitioner intends to apply in terms of Section 174 of the criminal procedure act. What is this application”
Section 174 of the Criminal Procedure act, enables an accused to lodge an application to discharge the charge or charges levied against the accused, only after the close of the case for the State, meaning that only after the State has placed all its evidence and witnesses before the Court.
The Act provides that this relief is available to an accused, only if at the time of the closure of the State’s case, the evidence before the court is so weak that no reasonable court acting carefully, can find the accused guilty of the offence levied against him.
Simply put, if the State as not made out a prima facia case against the accused during its evidence, the court can, based on this discharge the charges levied against the accused.
The reason why the Section was included into the Criminal Procedure Act, is to ensure that the accused constitutional right to a fair trial is protected by in the event that the State has failed to establish a prima facia (on face value) case against the accused, that the accused is not required to defend himself against allegations not proven by the State.
In essence, this Section protects the constitutional presumption that an accused is innocent until proven guilty of the offence.
In the matter of S v Mpetha and Others 1983 (4) SA 262 (C), the court held that a discharge should only be granted where there is truly no such evidence. Similarly, in R v Kritzinger and Others 1952 (2) SA 401 (W) at 406A, it was held that a discharge may be refused even where the state’s evidence appears weak, provided that there remains a reasonable possibility that defence evidence might strengthen the state’s case.
This principle evolved further in S v Lubaxa 2001 (2) SACR 703 (SCA), which formulated a two-stage test:
- Is there evidence on which a reasonable court might convict?
- If not, is there a reasonable possibility that the defence evidence might supplement the state’s case?
If either question is answered in the affirmative, the discharge must be refused.Normally, when the court exercises its discretion as to grant an application in terms of section 174, the credibility of the witnesses of the State is not part of the consideration of the Court.
However, in the matter of S v Mpetha and Others it was held that credibility plays a very limited roll and the evidence can only be ignored if it is of such poor quality that no reasonable man, acting carefully could possibly accept it.
This case confirms that although credibility only plays a limited roll, the Court cannot ignore the fact that if the State’s evidence is poor, the accused must be acquitted.
Section 174 is a handy tool in arsenal of any defence attorney, but should it be used only in instances where the State could not reasonably proof its case against the accused and should not be used as a tactic to defeat the justice system as this will lead to an injustice being done not only to the law itself but to the victims of the crime.
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