S v Smit and Another (CC54/2021) [2025] ZAWCHC 512 (6 November 2025)

Case Note

Case Name: The State vs. Zurena Smit and Derek Sait
Citation: CC 54 / 2021
Date: 6 November 2025

Reportability

This case is reportable primarily due to its substantive implications in the realms of criminal law, particularly concerning the application of Section 174 of the Criminal Procedure Act of 1977. The judgment addresses critical issues regarding the discharge application in criminal trials, especially in cases involving multiple accused facing multiple charges. The court's deliberation on the standards and nuances involved in determining whether there is sufficient evidence to proceed to trial not only holds significance for the outcomes of the current accused but also sets precedence for future similar cases.

The ruling also provides an analysis of the test for prima facie evidence and explains the nature of the judicial discretion exercised when considering discharge applications. It highlights the evidentiary burdens on prosecution and defense, illustrating the judicial expectations and standards applicable in the assessment of the sufficiency of evidence at various stages of a criminal trial.

Cases Cited

• S v Mpetha 1983 (4) SA 262 (C)
• R v Kritzinger 1952 (2) SA 401 (W)
• S v Lubaxa 2001 (2) SACR 703 (SCA)
• S v Schwartz 2001 (1) SACR 334 (W)
• S v Boesak 2001 (1) SACR 1 (CC)
• Motikeng v Regional Magistrate Beaufort West and Another 2023 JDR 0119 (WCC)

Legislation Cited

• Criminal Procedure Act 51 of 1977

Rules of Court Cited

N/A

HEADNOTE

Summary

The judgment addresses the application for discharge made by two accused—Zurena Smit and Derek Sait—at the close of the prosecution's case in connection with multiple charges including murder, conspiracy to commit murder, and robbery with aggravating circumstances. The court scrutinized the implications of Section 174 of the Criminal Procedure Act, determining that there was a substantial body of prima facie evidence against both accused, thereby warranting the continuation of the trial. The refusal to permit a discharge underscores the importance of evaluating evidence not just on its face but also through the lens of potential testimony in the defense stage of the trial.

Key Issues

The primary legal issues addressed in the judgment include:

1. The criteria for granting a discharge under Section 174 of the Criminal Procedure Act.
2. The assessment of prima facie evidence required to mandate the continuation of the trial.
3. The implications of multiple charges in determining the legal standing of each accused.

Held

The court held that the discharge application for both accused was refused, primarily due to the presence of a "tsunami of prima facie evidence" against them. The court emphasized that the evidential threshold required for proceeding with the trial is significantly lower than that required for a conviction and that any doubts about the evidence would be resolved at the final hearing stage.

THE FACTS

The matter revolves around two accused, Zurena Smit and Derek Sait, who face a total of 16 charges including murder, conspiracy to commit murder, robbery with aggravating circumstances, and fraud. The core allegations suggest a conspiracy leading to the murder of a deceased individual, along with multiple other criminal actions spread across the indictment. Both accused pleaded not guilty to the charges but made several admissions regarding the status of evidence.

During the proceedings, several statements and scientific evidence, including ballistic reports and post-mortem findings, were introduced and did not face contestation by the accused, albeit their overall claims of non-involvement. The defense posed a Section 174 discharge application, contesting that a lack of credible evidence supported the prosecution’s case against them.

THE ISSUES

The court was required to decide whether there existed sufficient evidence at the close of the prosecution's case to fulfill the threshold obliging a trial to continue, in conjunction with whether the standards for a discharge under Section 174 of the Criminal Procedure Act had been met. Specifically, it engaged with the conditions under which the accused could be deemed not guilty prior to presenting any defense evidence.

The court also contemplated the implications of multiple charges on the legal assessment of prima facie evidence and whether the interconnections among accusations necessitated a holistic view when determining the discharge application.

ANALYSIS

In delivering the judgment, the court outlined that the discharge application under Section 174 allows a court to find an accused not guilty if there is no evidence to support the charge at the closure of the prosecution's case. However, the judiciary emphasized that mere allegations pointing to flaws or insufficient evidence do not automatically trigger a discharge.

The court articulated that the credibility of witnesses, while critical at subsequent stages of trial, holds a distinct place in the immediate context of discharge applications—it is not permissible to evaluate the worthiness of evidence presented at this juncture unless it is of such poor quality that no conviction could reasonably follow from it. The existing evidence was deemed sufficient to meet the prima facie threshold, thus negating the accused's claims of unwarranted discharge.

This evaluative process involved a careful balance where the judge had to assess the prosecution's prima facie case against the potential implications for defense testimonies or other evidence that might later emerge. Consequently, the judgment indicated that the judicial discretion exercised must also factor in the possibility of the case being bolstered by any forthcoming defense evidence.

REMEDY

The court ultimately refused the discharge application, thus allowing the criminal trial to proceed. This decision instated the principle that absent a complete lack of evidence, and given the presence of substantial prima facie evidence, the case should continue with the full expectation of exploring the defense's counterarguments further on.

LEGAL PRINCIPLES

This judgment established several key legal principles:

1. The standard for a discharge under Section 174 is significantly lower than that for conviction; it suffices that there is a prima facie case against an accused.
2. The credibility of witnesses and the quality of evidence presented are not suitable grounds for a discharge application at the close of the prosecution’s case until all evidence has been deliberated upon at final judgment.
3. The rights of the accused to fair trial and presumption of innocence are protected within the procedural framework, where premature discharge applications may undermine the trial process itself. Any grievances regarding the inadequacy of evidence are best preserved for appeal rather than immediately addressed in the discharge context.