251

Section 174 of the Criminal Procedure Act:

Is it time for its abolition?
Managay Reddy
School of Law, University of Kwazulu-Natal
OPSOMMING
Artikel 174 prosedure van die Strafproseswet
Alhoewel nuttig, staan artikel 174 prosedure van die Strafproseswet die
gevaar om misbruik te word as ’n aanspreeklikheids-
vermydingsmeganisme, ten koste van die wyer belang van geregtigheid.
Dit kan geargumenteer word dat daar reeds gewysdes is waarin hierdie
gevaar verwerklik is: Die hoë-profiel saak S v Dewani, waarin die artikel
174 prosedure suksesvol ingespan om die drie beskuldigdes se ontslag te
bewerkstellig, kan dien as voorbeeld. Hierdie artikel spoor die oorsprong
van artikel 174 van die Strafproseswet in Suid-Afrikaanse reg na, en toon
aan dat die omstandighede wat in die verlede aanleiding gegee het tot die
skep van artikel 174, nie meer teenwoordig is nie. In die lig van hierdie
afwesigheid van geskiedkundige regverdigingsfaktore, en bedag op die
gebrek aan sekerheid in die regterlike uitoefening van die ontslag-toets,
assesseer hierdie artikel die nut, nodigheid, en gepastheid van die artikel
174 prosedure in huidige Suid-Afrikaanse reg. Ten einde emuleer-waardige
beste praktyk te vind, word Kanadese and Engelse benaderings tot die
ontslag-prosedure onder die loep geneem.

1 Introduction
Amongst the litany of fair trial rights that exist in South African criminal
and procedural law is the presumption of innocence. This right provides
that an accused person is presumed to be innocent until proven guilty.
The presumption of innocence obliges the state to show guilt beyond a
reasonable doubt in order for an accused to be convicted. Therefore, for
a conviction to ensue the state is required, at the close of its case, to have
rebutted the presumption of innocence by leading sufficient evidence
against the accused, upon which a reasonable person could convict.
A failure by the state to mount sufficient evidence for a conviction at
the close of its case, gifts the accused the opportunity to escape having
to be put on their defence. This gift takes the form of a procedural device
in the Criminal Procedure Act,1 namely section 174, which provides:
“If, at the close of the case for the prosecution at any trial, the court is of the
opinion that there is no evidence that the accused committed the offence
referred to in the charge or any offence of which he may be convicted on the
charge, it may return a verdict of not guilty.”

If the application of the provisions of section 174 favour the accused they
are discharged from prosecution without having to testify – but with the

1 Act 51 of 1977 (hereafter the CPA).

How to cite: Reddy ‘Section 174 of the Criminal Procedure Act: Is it time for its abolition?’
2018 De Jure 251-270
http://dx.doi.org/10.17159/2225-7160/2018/v51n2a4
252 2018 De Jure

same advantages as would have accrued if the trial had run its course and
if they had been acquitted.
The article traces the origin and application of section 174 of the
Criminal Procedure Act in South African law and shows that the
circumstances which warranted the adoption of the section 174
procedure are no longer present. Therefore, in light of the absence of the
historical factors justifying the procedure, and mindful of the lack of
certainty in the judicial application of the test for a discharge, an
assessment is conducted of the utility, need and appropriateness of the
procedure in current South African law. The Canadian and English
approaches to the procedure are scrutinised briefly, with a view to
understanding its application in these jurisdictions, and for guidance on
best practices worthy of emulation.
The section 174 procedure, although useful, risks morphing into a
process to avoid accountability – so compromising the broader interests
of justice. Arguably, there are cases where this risk has materialised: In S
v Dewani,2 it was successfully employed by a high-profile defence team
to see the three accused in a murder trial acquitted. The judgment and
order of the court drew harsh media and public criticism, which, it is
submitted, may not have been wholly unjustified from a legal
perspective. The argument may be warranted that the court in Dewani
deviated so drastically from the parameters of the test for a discharge in
terms of section 174 of the CPA, that a miscarriage of justice occurred in
that an accused person against whom a prima facie case had been made
was acquitted without having been put his defence.
The decision in Dewani has further lent credence to the perception that
justice through the courts exists only for the wealthy. It is commonplace
that the public has an interest in the proper trial of accused persons.
Acknowledgement of this is evident in South African legislation,
jurisprudence and policy which recognise the interests of victims at the
trial stage. Legal decision-making and conclusions which compromise
these interests pose problems in the context of a system aimed at serving
such interests. This is particularly so when these decisions and
conclusions are founded on an over-zealous approach to the application
of existing principles.
At the very least, therefore, there is a need to clarify the parameters of
the test and the judicial inquiry that needs to occur when a section 174
application is made. Furthermore, although section 174 remains a
valuable tool in the fair trial rights’ arsenal, South African courts seem to
have misconstrued what is required of the state when it closes its case,
and of the judges when they assess whether evidence exists at this stage.
Applications of the test inherent in section 174 have been inconsistent
and have resulted in the exploitation of legal loopholes which then
triumph over the goals of the criminal justice system.

2 [2014] JOL 32655 (WCC).

 Section 174 of the Criminal Procedure Act: Is it time for its abolition? 253

2 Development of the Section 174 Procedure

The discharge procedure was absent in South African criminal law at the
turn of the twentieth century, but in 1917 it was imported into South
African law from nineteenth century English law.3 In its original form in
civil courts, the plaintiff was required only to show that there was “a
scintilla of evidence” against the defendant to avoid his or her claim
being dismissed.4 The standard of proof was subsequently raised to
evidence which would be considered sufficient by a reasonable person
for a conviction.5 A failure to meet the standard resulted in the defendant
being granted absolution from the instance.
In English criminal law, following a successful submission by the
defence that there was “no case to answer”, the court would return a
verdict of not guilty, without requiring the defence to advance its case.6
In 1981, the English Criminal Court of Appeal made it clear that the
question to be asked by a trial court when faced with a submission of no
case to answer, is whether evidence exists on which a jury, directed
properly, could properly convict. Naturally, as it is rare for the state to
present no evidence at all, such an interpretation might render the
procedure empty of usefulness in most cases. The Criminal Court of
Appeal, therefore, clarified by stating that: where the judge concludes
that the Crown’s evidence is such that a jury could not make a conviction
based on evidence at its highest, it is the judge’s duty on a submission
being made to stop the case, but where Crown evidence depends on an
assessment of the witness’s reliability or on matters within the province
of a jury and where one possible view of the facts suggests evidence on
which a jury could make a conviction then the judge should allow the
matter to go to trial by jury, and with borderline cases left to the
discretion of the judge.7
The discharge procedure evidently arose out of the need to protect the
integrity of the judicial process when it was being administered by
laypersons. As a result, the test for discharge arose out of the need to
protect the role of juries as triers of fact. This was set out in a speech from
the House of Lords in a civil action:
“The Judge has a certain duty to discharge and the jurors have another and a
different duty. The Judge has to say whether any facts have been established
by evidence from which negligence may be reasonably inferred; those jurors
have to say whether from those facts submitted to them, negligence ought to

3 R v Smith 1912 AD 386; s 221(3) of Act 31 of 1917. When the Criminal

Procedure Act 56 of 1955 was enacted, the same procedure was
incorporated under s 157(3). It now finds expression in s 174 of the
Criminal Procedure Act 51 of 1977.
4 Ferrand v Bingley Township District Local Board (8 T.L.R) 71.
5 Ibid.
6 R v Fardully 1914 AD 186. Even at this stage, the judicial comment as to the
standard was that the evidence must be so weak that it would be wholly
unreasonable for the jury to convict.
7 R v Galbraith [1981] 2 All ER 1060, 1061.
254 2018 De Jure

be inferred. It is, in my opinion, of the greatest importance in the

administration of justice that these separate functions should be maintained,
and should be maintained distinct.”8

For this reason, at the close of the Crown’s case, judges in England were
authorised to decide whether evidence existed upon which a conviction
could be made, based on a clinical legal inquiry: Was there evidence led
which, if accepted, would satisfy the elements for guilt? The inquiry was
not, and has never been whether the evidence was cogent, plausible or
constituted proof of guilt beyond a reasonable doubt. The role of a judge
in an English criminal court (of first instance) and the limitations on their
functions were expressed thus: even if the judge considered that, because
of inconsistencies, the evidence could not support a conviction, he
should leave the matter to the jury; and the judge’s obligation lies with
cases where the necessary minimum evidence to establish the facts of
the crime has not been called, and it is not his responsibility to weigh the
evidence and stop the case if he thinks the witness is lying – which is the
function of the jury.9

2.1 Early Stages of Development

In the South African context, the earliest interpretations of the procedure
by the Appellate Division left very little space for judicial discretion when
faced with an application for discharge at the close of the state’s case.
The position was that if there was no evidence of the accused’s guilt on
the charge or a competent charge, then the judge was required to
discharge the accused from prosecution – removing his case from further
consideration and thus rendering a verdict of not guilty.10
The Appellate Division’s resolute approach appeared, however, to
have waivered in 1919 and thereafter, when it adopted the position that
judges had a discretion on whether to grant the application for
discharge.11 The reason for the shift is unclear.12
Later, in 1925, the Appellate Division explained that the words “no
evidence” do not mean “no evidence at all” – but rather “no evidence on
which a reasonable court, acting carefully, might convict”.13 This

8 Metropolitan Railway Co v Jackson (1877) 3 A.C 193 (HL) 197.

9 R v Barker (1977) 65 Cr App R 287, 288. See, also: R v Galbraith (above)
1062.
10 R v Louw 1918 AD 344; R v Thielke 1918 AD 373.
11 R v Lakatula 1919 AD 362, 364; R v Abrahamson 1920 AS 283, 285.
12 That is, it is not obviously political nor did it coincide with a drastic change
to the bench at the time, nor did it follow legislative changes.
13 R v Shein 1925 AD 6 (W).
 Section 174 of the Criminal Procedure Act: Is it time for its abolition? 255

interpretation is perhaps the only aspect of the section 174 procedure

that has remained stable and consistent in its application.14

2.2 Judicial Discretion to Grant or Refuse an Application

for Discharge
Until the decision of the Supreme Court of Appeal (SCA) in S v Lubaxa,15
the judicial approach to the existence of a judicial discretion in deciding
applications for discharge was unclear – with each court taking a
different approach.
At the conservative end of the spectrum was the view that even where
the state had failed to make out a case against a single accused person,
a court had a discretion to refuse an application for discharge on the basis
that the accused, if he testified, may lead evidence adverse to his cause.
This was expressed in S v Shuping,16 in which Hiemstra CJ rendered a
judgment intended to provide guidance to the magistrates’ courts when
faced with section 174 applications. This he did by formulating a two-part
test. First, he adopted the test formulated years earlier in S v Shein,17
namely: Is there sufficient evidence upon which a reasonable person
might convict? He then added a second leg to the test: Even if not, is there
a reasonable possibility that the defence evidence might supplement the
state’s case? He referred to the second leg of the test as the ‘discretionary
component’. The court reasoned that this reasonable possibility could be
inferred by the nature of cross-examination, a plea explanation, or from
the existence of multiple accused persons.18
In applying his newly formulated test to the accused in Shuping,
Hiemstra CJ found that the version of the state’s key witness was
uncorroborated by physical evidence which ought to have been available,
and was further contradicted by other witnesses. He concluded that the
evidence was insufficient for a reasonable person to convict all of the
accused. Despite this finding, he also made use of part two of his test,
and concluded that the application for discharge ought not to have been
granted. To support this stance he said that where a case continued
against one or more of several accused, it was unwise to discharge the
others at that stage as they might be incriminated by those against whom
the case continues – and it could appear that the discharge was
premature and that there was a miscarriage of justice.19
Clearly, the new constitutional dispensation would affect South
African criminal law and procedure, and it did so in respect of section

14 R v Herholdt (3) 1956 (2) SA 722 (W); S v Mpeta 1983 (4) SA 262; S v
Shuping 1983 (2) SA 119 (B); S v Phuravhatha 1992 (2) SACR 544 (V); S v
Lubaxa 2001 (2) SACR 703 (SCA).
15 2001 (2) SACR 703 (SCA).
16 1983 (2) SA 119 (B).
17 Shein supra.
18 Shuping 148.
19 Shuping 148.
256 2018 De Jure

174 applications. There have been several rights-based critiques of the

Shuping test – more so in respect of the discretionary component.
At the vanguard was S v Mathebula,20 decided under the interim
Constitution, in which the High Court declared it would be grossly unfair
after the prosecution had failed to prove any evidence against an
accused, for the court not to acquit him on the possibility of future
evidence being tendered by him or a co-accused.21 The case, however,
involved the rare instance where there was no evidence against the
accused, and must therefore be distinguished from cases where there is
some evidence, or where the evidence is of a questionable quality.
Essentially, Mathebula stressed that to afford a judge the discretion
(contained in the second leg of the test in Shuping) in instances where the
state does not adduce sufficient evidence upon which a reasonable
person could reasonably convict, would be a violation of the right to be
presumed innocent and the right against self-incrimination (including the
right not to testify and to remain silent).
In S v Lubaxa the SCA jettisoned the second part of the Shuping test
from South African law. Although the court acknowledged the pre-
existing constitutional arguments against the Shuping test as set out in
Mathebula above, it advanced different reasons for its conclusion. It
maintained that to force a full trial in the hope that an accused would
incriminate themselves where the state’s evidence had failed to do so,
was a violation of the right to dignity and personal freedom, which,
according to the court, were already embodied in common law
principles. The main principle in question is that there should be
‘reasonable and probable’ cause to believe that an accused is guilty of an
offence – before initiating a prosecution. The court considered that the
constitutional protection accorded to dignity and freedom appeared to
underpin this position. Therefore, if a prosecution is not to commence
without that minimum of evidence, it should cease when the evidence
falls below the threshold.22
The rule which emerged from Lubaxa was that a single accused is
entitled to be discharged at the close of the case for the prosecution, if
there is no possibility of a conviction other than if he enters the witness
box and incriminates himself.23 It would seem there was no longer a
judicial discretion in such cases. The SCA was, however, explicit in
stating that the removal of a judicial discretion (i.e. part two of the
Shuping test) did not necessarily apply in cases involving multiple
accused persons where an accused could be implicated by his co-

20 1997 (1) SACR 10 (W).

21 Mathebula 147.
22 Lubaxa para 19. In discussing the court’s duty to discharge an
unrepresented accused mero motu, it hinted at its inclination, referring to
“the profound sense of injustice that is evoked by the spectacle of an
accused bringing about his own conviction solely through his unfamiliarity
with legal procedure” (para 17).
23 Lubaxa para 18.
 Section 174 of the Criminal Procedure Act: Is it time for its abolition? 257

accused. The court specifically indicated that it is important to distinguish

between the state’s case being supplemented by defence evidence in the
form of an accused person incriminating himself, and where there are
multiple accused and one is incriminated by his co-accused.24
The SCA therefore purposely left room for a modicum of judicial
discretion in cases involving multiple accused – by stating that the issue
of whether and in what circumstances a trial court should discharge an
accused who might be incriminated by a co-accused, cannot be
answered in the abstract. For a fair trial to ensue and the interests of
justice to be served, this question should be determined on a case-by-
case basis, with reference to the particular circumstances of each case.25
While the SCA was open to the need to assess the appropriate judicial
response in each case involving multiple accused persons, it was resolute
in laying down a blanket rule in cases relating to a single accused – and
removed judicial discretion in every case involving a single accused.
However, this may have been somewhat over-enthusiastic, for (to use the
court’s words) “one can envisage circumstances in which to [discharge
an accused] would compromise the proper administration of justice”.26
One such circumstance was demonstrated in R v Mall27 where, although
the accused stood trial alone, he was alleged to have acted together with
accomplices28 who did not stand trial with the accused but instead gave
evidence against him. Because of the rule which requires corroboration
of accomplice testimony by a non-accomplice, the only way the
prosecution could elicit such corroboration was through the accused’s
own testimony. The court adopted the view that in instances where the
only way for the state to make its case would be if an accused were to
enter the witness stand and risk incriminating himself – then the accused
should be discharged. The court therefore discharged the accused as he
was the only person, other than the accomplices, who could corroborate
their versions.
The Mall case – decided decades before Lubaxa – adopted an approach
similar to that in Lubaxa. However, this approach is at odds with the
balanced approach required in the pursuit of justice. Moreover, it could
lead to the absurd result where each time a court is faced with an
individual accused who committed an offence with one or more other
people who have turned state witness/es, in instances where nobody else
knew of their plan or of the offence that had been committed, then that
individual accused can never be convicted unless he is tried with at least
one of his accomplices. Based on these reasons, it is unfortunate that the
SCA did not recognise that the need for judicial discretion could also arise
in respect of a single accused person.

24 Lubaxa para 15.

25 Lubaxa paras 20–21.
26 Ibid.
27 1960 (2) All SA 403 (N).
28 Ibid at 407. See, also, R v Herholdt (above) 273.
258 2018 De Jure

It is unclear what the SCA would decide now if faced with a challenge
to judicial discretion in cases involving multiple accused. The English
position is favourable to an accused in this situation. It holds that an
accused person is entitled, as of right, to a discharge if there is no
evidence against him and, if this is refused him and he is later convicted
as a consequence of evidence given by his co-accused, his appeal will
succeed.29 Mathebula, discussed above, also supports this position – but
only in instances where there is absolutely no evidence against the
accused.
Despite the rule which emerged in Lubaxa it is often ignored that the
SCA ultimately did not grant the application for discharge in that case.
The court found that evidence of the commission of the crimes (robbery
and murder under the doctrine of common purpose), and the arrival of
Lubaxa with the other accused and their continued association until after
the commission of the crime, constituted sufficient evidence upon which
a reasonable court may convict (i.e. sufficient evidence for the state to
avoid a discharge). As the court explained, “[I]f anything was lacking in
the evidence at that stage it was an innocent explanation”.30
This statement appears to lie at the heart of the section 174 enquiry.
This, together with an appreciation of the appropriate approach to the
question of whether there is sufficient evidence upon which a reasonable
person would convict, is what South African courts appear to be missing.
Courts are failing to distinguish between spurious state cases in which
there is actually no case to answer, and cases where the evidence
presented proves the elements of the offence sufficiently for a reasonable
person to convict on. It is submitted that it was the inability of the court
to make this distinction in S v Dewani, which led to a miscarriage of
justice in that matter.

2.3 The Question of Evidence at the Close of the State’s

Case
It is trite law that the standard which the state evidence must meet at the
close of its case, in order to avoid an accused being discharged, is lower
than the standard that it must meet to secure the accused’s conviction.31
For example, in R v Louw32 the Appellate Division rejected an argument
by the defence that the accused should have been discharged at the close
of the state’s case, because “the evidence produced at the trial was so
inconsistent with the innocence of the accused”.33 In dismissing this
approach, the Court said that it does not follow that because in a certain
view of the facts the evidence might suggest innocence, the accused
must be acquitted, and that the jury may (and did) not take that view.34

29 R v Abbot 1955 (2) AER 899 (CCA).

30 Lubaxa para 24.
31 Lubaxa 2001 (2) SACR 703 (SCA).
32 R v Louw 1918 AD 344.
33 Louw 352.
34 Louw (above) 353. See also Thielke (above) 375, 379; Lakatula 365–366.
 Section 174 of the Criminal Procedure Act: Is it time for its abolition? 259

This was also the case in R v Shein,35 where the court found that
existence of the following evidence on a count of arson was sufficient to
refuse a discharge at the close of the state’s case: (i) clear evidence that
the fire was deliberate; and (ii) circumstantial evidence that the accused
had committed the crime (including motive and presence at the property
around the time the fire would have been set). The accused did present
alternative versions, but suggested mistakes or inconsistencies in the
eye-witness accounts of his presence, at the key times, on the property.
The court was firm, however, and maintained that these were matters of
assessment which involved the evaluation and weighing up of evidence.
The imperfections in the state’s evidence did not necessarily mean that
there was no evidence upon which a reasonable person might convict.
The court accordingly stated that the test was for an absence of evidence
probative of the crime.36 In other words, the judge had to determine
whether the facts necessary to sustain a particular charge or claim have
been shown, and the jury was to determine whether those facts having
been shown, were sufficient to warrant a conviction.37
Acknowledging the standard in theory, the courts however appear to
have fallen short in practice. Even the court in Shuping38 would not have
needed to devise a second leg to the discharge inquiry if it had taken the
correct approach – that is, if it had confined itself to determining the
existence of evidence upon which an accused might be convicted. In
Shuping, there was evidence in the form of an eye-witness account which
was not disqualified. That the witness was a single eye-witness, or given
that there was no corroborating evidence, or that aspects of her
testimony were contradicted by other eye-witnesses (as Hiemstra CJ
noted)39 – did not mean that there did not exist admissible evidence
probative of the elements of theft.
The approach to evidence at the stage of an application for discharge
was well articulated in S v Cooper.40 The court stated it was the duty of
the judge to determine the presence or absence of facts suitable to be
considered by the jury, and, if such facts existed, then the jury had to
evaluate the evidence in reaching a final decision in the matter. The court
was explicit in stating it was neither the task nor the responsibility of the
judge to evaluate the evidence. It should be noted that this is also the
post-constitutional approach – as was illustrated in Lubaxa above.
The only exception to this rule in South African law is that a court may
discharge an accused when the state’s evidence is of such poor quality
that no reasonable man acting carefully could convict thereon.41 This
exception which permits a limited probe into credibility, appears to be a

35 Shein 10-11.
36 Ibid.
37 See Thielke (above) 375, 379.
38 Shuping 121.
39 Ibid.
40 [1974] 3 All SA 253 (T) 266.
41 Schwartz 2001 (1) SACR 334 (W).
260 2018 De Jure

difficult line to tread – as courts have employed the concession to venture

into detailed ‘weighing up’ exercises. It is submitted that this is neither
within their remit nor competence at the stage of the close of the state’s
case.

2.4 Recent Cases Which Confused the Issue

The decision of the court in S v Agliotti42 warrants the conclusion that the
court was confused about the limitations of the inquiry into credibility at
the stage of the section 174 application – when it concluded that the
state’s key witness lacked credibility to such an extent that a discharge
of the accused was merited. This conclusion and some of the court’s
other findings reached after it had engaged in a lengthy and
inappropriate credibility analysis (and had seemingly capitulated to the
defence’s conjecture), are matters of concern when due regard is taken
of the relatively low standard the state’s evidence must meet in order to
avoid discharge.43 In this case, the sole concern of the court in deciding
if a discharge was justified, ought to have been whether there was
sufficient evidence (the evidence taken at its highest) on which a
reasonable court would convict. Had it made this restricted inquiry, it
would likely have found that there was evidence, albeit inconsistent, that
the accused had been part of a conspiracy to commit murder, and that
the only aspect missing was an innocent explanation from him.
In S v Dewani, the Cape High Court considered a section 174
application by one of the accused. The accused had been charged with
five counts of conspiracy, kidnapping, robbery with aggravating
circumstances, murder, and obstructing the administration of justice. His
alleged accomplices – far poorer than he and therefore accessing an
entirely different level of legal representation – had entered into plea and
sentence agreements. In order to sustain the charges against the accused
who was alleged to have masterminded the criminal plan, the state had
been required to prove that the accused had entered into a conspiracy

42 S v Agliotti 2012 (1) SACR 559 (GSJ).

43 For instance, the court discussed the credibility of the witnesses in the
following manner: “The startling similarities of the statements of Sanders,
Nassif and others as well as the attribution of certain phrases to wrong
people as well as the utilisation of incorrect dates and times indicates that
there could have been collusion between them in the compilation of those
statements. This impacts negatively on their credibility as witnesses and on
the fairness of this trial. The timing of the supplementary affidavit by Nassif
and its content which belatedly tend to implicate the accused herein point
to a predetermined or premeditated course of action to implicate this
accused in the crimes set out in the indictment. I cannot see any reason
why, if the contents of this affidavit were true, they would not have been
part of the section 204 statement that Nassif deposed to on 8 November
2006 or the statement he made on 10 November 2005. They sound to me
to be recent fabrications and the defence’s charge that they were specially
invited or put to Nassif by the investigators or the prosecutors at the time
for him only to glorify same with his signature may have a ring of truth to
it.” Agliotti paras 285–286.
 Section 174 of the Criminal Procedure Act: Is it time for its abolition? 261

agreement with one of the alleged accomplices, Tongo.44 The court duly
noted that “[i]t is common cause that the only witness who could
implicate the accused was Tongo (who was an accomplice witness)”.45 It
consequently approached Tongo’s evidence with caution, and required
that it be corroborated. Certain CCTV footage existed which the state
tendered in corroboration of Tongo’s evidence of a meeting with the
accused. Quite bizarrely, the court found that the CCTV footage did not
meet the required standard for corroboration. This is a clear misdirection
on the facts by the court, even on authority cited in the judgment:
“It must be emphasised immediately that by corroboration is meant other
evidence which supports the evidence of the complainant, and which render
the evidence of the accused less probable, on the issues in dispute” (original
emphasis).46

Tongo had testified that he had met with the accused on specific
occasions and that the accused asked him to arrange or commit the
murder of his wife in exchange for money. The CCTV footage revealed
that meetings took place between the two at the times and in the places
alleged by Tongo.47 The CCTV footage could not of course confirm what
was said during those meetings.
It is therefore unclear on what basis the CCTV footage failed to
corroborate the accomplice’s testimony. In addition, where an accused
is known only by one person to have committed a crime, and where
there is CCTV footage at least confirming the probability of the witness’s
version, the Court surely cannot be so circumspect in its approach to
allow for the accused to avoid trial – merely because he managed to keep
secret and guarded his involvement in a crime. The court was
accordingly wrong to find that the CCTV footage did not corroborate
Tongo’s version, because the tape could not reveal “what was said during
those events”.48 It is submitted that that evidence equated to sufficient
circumstantial evidence to warrant placing the accused on his defence.
If, after his defence, the court was persuaded by the accused’s
explanation regarding his meeting with Tongo, the payment made to
him, and the telephone calls placed by him – then it could discharge the
accused. However, the testimony led by the state together with the
objective supporting evidence tendered and the series of seemingly
strange coincidences – cried out for an “innocent explanation” by the
accused. To have discharged the accused under these circumstances
amounted to a misdirection on the law which hamstrung the state.
The court was equally wrong to dismiss Tongo’s evidence because of
certain contradictions, mistakes and (in its view) inadequate

44 S v Dewani [2014] JOL 32655 (WCC) para 5.

45 Idem para 16. See, also para 23.1.
46 S v Gentle cited in Dewani para 19.
47 Dewani para 21.
48 The court found the same in respect of a telephone call which was proved
to have taken place, though the content could not be revealed – as with the
CCTV footage.
262 2018 De Jure

explanations for the mistakes. In a clear misapplication of the law and a

misjudgment of its role at the stage of discharge, the court had found that
in Tongo’s case, there were manifest material contradictions and
inconsistencies in his evidence and several improbabilities, of sufficient
degree as to render his evidence suspect.49 However, this ought not to
have formed the basis on which to find that the evidence carried no
weight to place the accused on his defence. This is compounded by the
court stating at the end that “In making this finding to reject the witness
evidence, I take into account that all three witnesses (…) are intelligent
people, and therefore more than capable of attempting to twist their
version to implicate the accused”.50 To add insult to injury, the court
even found that there were aspects of Tongo’s evidence which implicate
the accused.51 Surely this finding, followed by corroboration, was where
the inquiry should have ended, as the application of the cautionary rule
– which is a weighing up mechanism – had no place at this stage of the
proceedings.
Although the court acknowledged the rule that evidence adduced by
the state should only be ignored if it is of such poor quality that no
reasonable person could accept it, it evidently failed to appreciate the
nature of this requirement in its analysis at the close of the state’s case.52
Had the court applied the test correctly, it would have found: (i) evidence
existed in this case in the form of an accomplice whose evidence, taken
at its highest, was not so far-fetched or inadequate that a reasonable
person would not believe it; (ii) there was corroboration of this evidence
in terms of the legal requirements; and (iii) the evidence tended to show
a conspiracy agreement between the accused and Tongo. This is what
the state needed to show, perhaps not for conviction – but to avoid
discharge. Instead, the court tried the facts, and discharged the accused
at the close of the state’s case after having conducted an evaluation of the
evidence. Courts, it is submitted, are not entitled to discharge an accused
simply because the state’s case is weak.

49 S v Dewani para 23.1.105.

50 Dewani para 24.4.
51 Dewani para 23.1.107.
52 This is evident in the following statement of the court: “As pointed out
above, Mr. Tongo is a single witness who is also an accomplice witness. As I
have noted earlier, in these circumstances the court must look for
corroboration of his evidence. On the cases referred to above it is clear that
such corroboration must be corroboration implicating the accused.
Mr. Mopp attempted to persuade me that I could find corroboration in the
circumstantial evidence. This evidence, such as it is, he was constrained to
concede does not implicate the accused. Regrettably, there are many
unanswered questions about what exactly happened on the fateful night.
(…) In the light of the analysis of the State case there is no evidence upon
which a reasonable court, acting carefully, can convict the accused, and I
am obliged to follow the established legal principles regarding a discharge.
The law is clear: the evidence of the accused – if he does not incriminate
himself can never strengthen the State’s case. Even if the accused is
therefore a wholly unsatisfactory witness – I will still be left with a weak
State case which cannot on any basis pass legal muster.” See: Dewani para
24.7.
 Section 174 of the Criminal Procedure Act: Is it time for its abolition? 263

By contrast, the correct approach was displayed in Masondo v S, where

Kgomo J decided an application for discharge in accordance with the
prevailing international and local standards which the state must meet.
In refusing to resort to probabilities, the judge said that:
“The gist of the matter herein is that as opposed to situations where there is
no evidence on record, in this case there is indeed evidence led against him
which, if found to be cogent and credible, may amount to a prima facie case
against him. I must make it clear that I am not saying the accused’s guilt on
these two counts have been proved beyond reasonable doubt. I am saying the
evidence led, when juxtaposed to the forensic evidence and the evidence of
pointing out which has already been accepted against accused 2 is such that
it calls for reply.”53

There are clearly differing views of judicial power at this stage of a trial,
or at least the full extent of the credibility inquiry which judges are
required to undertake. A similar situation of differing judicial practices
occurred in England, and was settled in R v Galbraith.54 In this case the
Criminal Court of Appeal (CCA) attempted to settle a dispute about
whether the test for discharge was “no evidence” or whether a judge
should stop the case if – in their view – it would be unsafe (alternatively
unsafe or unsatisfactory) for the jury to convict. The court wisely noted
that there were risks inherent in such wording which could lead to a
deviation from the true purpose of the procedure and compromise the
integrity of the jury system. It felt that a judge could hardly be blamed for
evaluating the prosecution’s evidence if he were to be obliged to consider
whether a conviction would be ‘unsafe’ or ‘unsatisfactory’.55 The CCA
therefore clarified the approach by refusing to grant a discharge – even
where evidence and aspects of the record were favourable to the accused
and possibly exculpatory, including internal inconsistencies in witness
testimony and the inability of witnesses to identify the accused in
identity parades.56 The court considered that the jury should be left to
evaluate the weight on which the Crown had based its case. It found that
Galbraith was not a case which could justify the judge stating that the
Crown’s evidence, at its best, was such that the jury, properly directed,
could not convict on it.57
This attitude of the English criminal courts encompasses the very
essence of what is being submitted – that the judge’s role in assessing a
section 174 application is not to assess credibility. This was most
explicitly stated by Lord Devlin when he said:
“[T]here is in truth a fundamental difference between the question whether
there is any evidence and the question whether there is enough evidence. I
can best illustrate the difference by an analogy. Whether a rope will bear a
certain weight and take a certain strain is a question that practical men often

53 Masondo (above) paras 43–44.

54 R v Galbraith [1981] 1 WLR 1039.
55 Galbraith (above) 1062.
56 1062–1063.
57 1063.
264 2018 De Jure

have to determine by using their judgment based on their experience. But

they based their judgment on the assumption that the rope is what it seems
to the eye to be and that it has no concealed defects. It is the business of the
manufacturer of the rope to test it, strand by strand if necessary, before he
sends it out to see that it has no flaw; that is a job for an expert. It is the
business of the judge as the expert who has a mind trained to make
examinations of the sort to test the chain of evidence for the weak links
before he sends it out to the jury; in other words, it is for him to ascertain
whether it has any reliable strength at all and then for the jury to determine
how strong it is …”.58

The Canadian decision of Perry v The King,59 which still holds sway
today, set the same standard. In Perry the court stated that the criterion
to determine whether an accused should be put on his defence, is
whether the evidence is such that, in the “absence of contradiction or
explanation”, “a jury might reasonably and properly convict upon”.60
The question of credibility is excluded to the extent that an accused may
not be discharged if there is admissible evidence which could, if believed,
result in a conviction.61
Foreign jurisdictions therefore do not consider the credibility of
witnesses at such an early stage, and applications for discharge are dealt
with on the basis of whether the prosecution’s evidence, if believed,
would secure a conviction. It is submitted that, given the proven inability
of judges to limit their credibility inquiry, this practice should be strictly
emulated in South Africa, and the credibility assessment in section 174
applications should be abandoned. Currently, the credibility inquiry
appears to be a uniquely South African problem.

3 Current Relevance of Section 174

The historical context for the discharge procedure no longer exists: The
discharge procedure emerged at a time and as a result of jury trials, and
where there lay no appeal against factual findings.62 In South Africa, the
circumstances have since changed dramatically. Although an appeal on
factual findings by the state is not permitted, a trial court’s misdirection
on facts is appealable. More significantly, the jury system was abolished
some decades ago.63 However, this does not necessarily mean that the
section 174 application procedure is now superfluous and without value.
The question therefore is whether the procedure remains relevant under
the current circumstances, and, if so, determining the optimal way in
which it should be applied.

58 Lord Devlin, 8th Hamlyn Lecture “Trial by Jury” 1956.

59 82 Can C.C. 240.
60 Ibid at 242.
61 United States of America v Shepard [1977] 2 S.C.R 1067, 1080. See, also:
Mezzo v The Queen [1986] 1 S.C.R 802, 842; R v Charemski [1998] 1 S.C.R
679, para 26.
62 Cooper 268.
63 Abolition of Juries Act 34 of 1969.
 Section 174 of the Criminal Procedure Act: Is it time for its abolition? 265

There are several aspects which require consideration when deciding

if the discharge procedure still serves a purpose – despite the historical
problems it sought to address no longer being in existence:
From an efficacy perspective, section 174 has practical usefulness in
nipping problematic or frivolous prosecutions in the bud: it “cuts off the
tail of a superfluous process”.64 The drawbacks involved in having to
resort to an appeal process in every instance of a frivolous prosecution
are obvious. Therefore, it is preposterous for a person against whom
there is no evidence, to be forced through an appeal process (including
the time, expense and burden on the courts) in order to rectify so basic
an error. Hence, section 174 provides for an exception to the normal trial
procedure – primarily to relieve the trial court of the burden of
mechanistically having to continue with a pointless trial when, evidently,
a conviction will not be possible. As a result, a core function of section
174 is to “save time and effort, (and) not to complicate the court’s
task”.65
From a constitutional outlook, section 174 could be said to protect an
accused against the risk of incriminating himself in instances where the
state had not met the minimum standard it is required to meet for a
prima facie case. Whether this right against self-incrimination should be
regarded as inviolable is a separate question. Arguably, there are
instances which would warrant the exercise of a judge’s discretion in
favour of the state. For example, where the state has adduced evidence
against the accused in the form of satisfactory accomplice testimony,
which need only be corroborated by a non-accomplice.
Furthermore, if the reasoning from Lubaxa were to be applied, the
section 174 procedure is justifiable on the common law principle that
there must be reasonable and probable cause to believe an accused is
guilty, before initiating a prosecution.66 It can be argued that in the
absence of a discharge procedure, an accused need only stand up and
close his or her case without leading evidence. However, in dismissing
this proposition as unrealistic, a sympathetic court in Lubaxa noted that
it is “simplistic” to expect an accused person whose application for
discharge was denied, to simply take the liberty gamble of closing his or
her case without leading evidence, where he is of the view that the state
has not met the standard required to show guilt.67 The court also
considered that there are very few accused in this country qualified to

64 Masondo para 38.

65 Hiemstra's Criminal Procedure, 2008, 22.
66 See, also: Agliotti para 269, where the court refers to the purpose of the
procedure in promoting orderly and fair criminal justice.
67 Lubaxa (above) para 16.
68 Ibid. The last sentence of this paragraph suggests that the court is equally
sympathetic to represented and unrepresented accused. It is worth noting
how differently represented and unrepresented accused experience the
legal system, and the task of a person defending himself or herself is vastly
different from a represented accused whose lawyer may well be up to the
266 2018 De Jure

make such a decision – especially since most of them are unrepresented

at their trials.68
The acknowledgement of how difficult it is to take the decision to close
one’s case without leading evidence, finds credence in the prevailing
attitude that an accused’s silence (even if as a result of poor judgment or
advice) may in certain circumstances, to some extent be used against
him when factual findings are being made. This arises from the nature of
trial proceedings in an adversarial criminal justice system. Therefore, if
the state has produced sufficient evidence to make out a prima facie case
against an accused – such an accused would be at risk of conviction if
they do not produce satisfactory evidence in rebuttal. A likely upshot is
that, in the face of such circumstances, the accused may have to give up
their right to remain silent. However, the fact that an accused has to
make an election is not a breach of the right to silence, since if the right
were to be so interpreted, this would sound the death knell of the very
nature of an adversarial criminal justice system.69
For the above reasons it is submitted that the section 174 process still
has value, and has taken on a life of its own. Consequently, there is no
basis to believe that the absence of the historical factors which led to the
process being created now renders the discharge process obsolete. On
the contrary, the ‘liberal’ argument is more compelling, that, as there is
now no distinction between judges and juries (specifically, that judges are
now also the triers of fact) – it is appropriate to engage in an exhaustive
or at least lengthy credibility analysis at the stage of a section 174
application, and to grant a discharge on the basis of a judge’s finding that
the state witness or witnesses are not to be believed.
Equally compelling, however, is the argument that the section 174
process has no regard for a victim’s rights, and also the interest of the
public in a full and fair trial being held.

4 Victims in the Application of Section 174

The court in Dewani impliedly came to the questionable (if not wholly
unsubstantiated and condescending) conclusion that public and victim
opinion was based on an emotionally overcharged hysteria, when it
stated the following:
“I realise that there is a strong public opinion that the accused should be
placed on his defence. I have taken note of that. I have also taken note of the
plight of the Hindochas. I have however taken an oath of office to uphold the

68 task. Even in terms of represented accused, there is a vast difference

between a wealthy accused and a concomitantly well-resourced legal team,
and an accused being represented by over-burdened and under-resourced
Legal Aid attorneys. Of course, to resolve this issue requires resolving
structural inequality.
69 Osman v Attorney-General, Transvaal 1998 (4) SA 1224 (CC) para 22. See,
also Boesak v S 2001 (1) SA 912 (CC) (para 24). 
 Section 174 of the Criminal Procedure Act: Is it time for its abolition? 267

rule of law and to administer justice without fear, favour or prejudice. That I
cannot do if I permit public opinion to influence my application of the law. If
any court permitted public opinion, which has no legal basis to influence their
judgments, it will lead to anarchy. I am obliged to follow the established legal
principles regarding a discharge at the close of the State case.”70

Not every victim is emotional and unreasonable, and the public’s

interest in criminal trials should not be conflated with public opinion.
Furthermore, the (modern) South African system of public prosecutions
does not mean that the victim no longer has a role to play, or that the
victim’s interest should not be a consideration during the trial. The
criminal justice process is strongly intertwined with victim and public
interest, and is, regardless of preference, infused with social and
economic considerations:
For instance, section 342A of the Criminal Procedure Act71 contains a
clear expression of the regard that must be had to the victim, in the
court’s decision on whether to discontinue a prosecution on the basis of
an unreasonable delay in completing proceedings. The court is required
to consider “the adverse effect on the interests of the public or the
victims in the event of the prosecution being stopped or discontinued”.72

There has also been increasing cabinet recognition of the role of

victims; the Service Charter for Victims of Crime in South Africa
(“Victim’s Charter) is a consequence of this recognition. The Victim’s
Charter is service-orientated, as the name suggests, and therefore does
not include in its objectives and promises the sacrosanct area of judicial
decision-making. It is not proposed that it do so. However, the Charter’s
objectives are useful in understanding the recognised interests of victims
in the criminal justice process. The objectives are to: eliminate secondary
victimisation in the criminal justice process; ensure that victims remain
central to the criminal justice process; clarify the service standards that
can be expected by and are to be accorded to victims whenever they
come into contact with the criminal justice system; and make provision
for victim’s recourse when these standards are not met.73
A victim and the public generally have an interest in a conviction
where an accused is guilty. They also have an interest in a full trial where
the prosecution has presented a case for the accused to answer.
Likewise, they also have an interest in the protection of an accused
person’s rights. However, these interests must be balanced, and not one
forsaken for the other. Should that happen, there is a risk of victim/public
dissatisfaction with the process.

70 Dewani 83.
71 51 of 1977.
72 Section 342A(2)(h) of the CPA.
73 Victim’s Charter at 5.
268 2018 De Jure

The public prosecution system on which the victims of crime and the
public rely cannot be discussed in the abstract without noting its dire
state,74 and without contrasting it to the legal teams to which wealthy
accused persons have access. Victims in cases involving wealthy accused
are often faced with the might of well-resourced, round-the-clock legal
teams, while they have no option but to rely only on oversubscribed and
underfunded public prosecutors.
The suggestion is not that the victim’s interests be taken into account
for the purposes of assessing guilt or innocence, or even at the stage of
an appeal against a conviction.75 Nor is the suggestion that the victim’s
rights should trump the entrenched constitutional rights of an accused.
However, the disregard of a victim’s interest in a full trial and the
reduction of public interest to mere opinion, without further
substantiation, does not do justice to the full scope of the criminal justice
system. Therefore, the proposal is that the victim’s interests should be
weighed up in the section 174 inquiry.
The complete disregard of the victim in the current judicial approach
to the section 174 inquiry does not accord with the general appreciation
for the role of victims in the entire criminal justice process. Seemingly,
this has happened as a result of the expansion of the credibility inquiry –
coupled with the constitutional emphasis on an accused person’s rights,
and the historically entrenched idea of the state as dominus litus. It is
submitted that these aspects have subverted the judicial approach in a
most inappropriate fashion – one of imbalance between rights with the
consequential risk of the public in general and victims specifically feeling
that their interests are not protected.

5 Conclusion
The ability of wealthy accused to bankroll criminal litigation over an
extended period gives rise to infinite possibilities for exploiting any legal
loopholes and procedural mechanisms, and also for employing delaying
tactics. As a result, this has become deeply prejudicial to victims and the
public interest in the equal administration of justice. A jurisprudence
which treats all litigants as equal before the law, ought to be developed
to guard against this.
The section 174 process is not harmful in and of itself. However, its
implementation presently has been harmful. Therefore, there needs to
be an assessment of ways to make section 174 the device that it once

74 Mistry, D “Victims and the criminal justice system in South Africa” (1997),
Paper presented at Centre for the Study of Violence and Reconciliation,
Seminar No. 11, 29 October 1997.
75 See Morris v Slappy, 461 U.S. 1 (1983); United States v Hasting, 461 U.S. 499
(1983), where the United States Supreme Court refused to uphold appeals
against convictions, citing as a relevant factor in the inquiry the interests of
the victims who testified at the initial trial.
 Section 174 of the Criminal Procedure Act: Is it time for its abolition? 269

was – a sentinel against convictions in the face of spurious state

evidence. The harm being experienced by victims of crime, public
interest and the integrity of the criminal justice system, is the result of
judges acting inappropriately at the stage of the section 174 application
for discharge – as triers of fact. It is submitted that this is the source of
the harm, and not the section 174 procedure itself.
In South Africa, occasional applications of the test for discharge have
seen judges tending towards granting an application for discharge where
they think that the witnesses for the prosecution are unreliable or are not
telling the truth. This is incorrect and inappropriate. However, on the
reasoning in Galbraith, a judge can hardly be blamed if he is asked or
permitted to rule on credibility, if he were to grant a discharge based on
such a finding. The credibility inquiry must therefore be abandoned.
Intensive credibility inquiries are never appropriate at the stage of the
discharge application. The Dewani outcome clearly demonstrated as
much. The reasons for this are twofold: (i) In terms of the section 174
procedure and its limitations as expressed in Lubaxa, a judge is simply
not entitled to engage in such an inquiry at this stage of the trial; and (ii)
this approach, even if the statutory provision were to develop to this
extent, fails to adequately balance the interests of the victim in the
criminal proceedings and the public interest in a trial.
To obviate this, it is submitted that as is the practice in foreign
jurisdictions, when dealing with section 174 applications, judges in South
Africa should take the state evidence “at its highest”. The requirement
that the state evidence be taken at its highest, will provide the necessary
limited space for a court to discard completely unbelievable witness
testimony. This procedure of abandoning the credibility inquiry can be
adapted to non-jury settings. In The King v Morabito76 the Supreme Court
of Canada considered an appeal concerning, among other things, an
application for discharge in the case of a court sitting without a jury.
Although the judge would ultimately be empowered to act as trier of fact,
the court held that at the close of the state’s case, he did not yet have that
power. According to the court, the judge was still empowered only to
decide whether there was evidence upon which a jury might convict and
that he had no additional power at that stage by virtue of sitting without
a jury.77 The court went on to state:
“Had a jury been present, the learned trial judge could have done no more, on
the application of the defence, than have decided whether or not there was
evidence upon which a jury might convict … [The judge] would have had no
right, as he in fact did, to proceed to weigh the evidence until all the evidence
was in. The decisions are uniform.” 78

76 The King v Morabito [1949] S.C.R.172.

77 Morabito 174.
78 Morabito 175.
270 2018 De Jure

What does this mean for the application of the discharge procedure in
an era without juries? The answer is simple: The judge must ask himself
whether there is any evidence on which to base a charge. He must
reserve the weighing up or assessment of that evidence for when the trial
has closed. If he does not perform that exercise, and splits his functions
at the close of the state’s case and at the end of the trial as a whole – then
he places the state in a position where it is required to meet an unduly
high, if not impossible, burden without the other side testifying.
In other words, the judge needs to delineate and understand his role
at the two key stages of the trial: (i) at the close of the state’s case he is
to draw a legal conclusion on the existence of evidence required for a
particular offence; and (ii) at the close of the trial as a whole he is to draw
his factual conclusions from the existing evidence.79
Based on the existing legal standard, then, a legislative leap is
unnecessary. What is necessary, however, is an appreciation by judges
of their shifting functions at different stages of a criminal trial.

79 This distinction in the judge’s function has been expressed in some way in
S v Cooper [1974] 3 All SA 253 (T) 266 at 890: “If there is more than one
inference possible from the facts assumed to be uncontradicted at the close
of the case for the prosecution, then that is just the sort of evidence that
should be referred to the triers of fact for decision.”