About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 41
|
|
S v M and Others (2/2016) [2016] ZAFSHC 41 (18 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case number:
2/2016
In the matter
between:-
THE STATE
And
[T…….]
[J……]
[M……..]
.......................................................................................................
Accused
1
[M…….]
[R…….]
[M…….]
.....................................................................................................
Accused
2
CORAM:
OPPERMAN, AJ
HEARD
ON:
18 February 2016
DELIVERED
ON:
18 February 2016
JUDGEMENT:
SECTION
174
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
[1]
The charges against the accused are two counts of Ho
usebreaking
with the intent to contravene the provisions of section 3 of the
Criminal Law Amendment Act 32/2007
(rape) and Rape and thirdly, Robbery with aggravating circumstances
as defined in
section 1
of the
Criminal
Procedure Act 51/1977
(CPA
)
.
[2]
The State alleges that:
On
the night of the 11
th
of November 2014 the two
complainants, a mother and daughter, were asleep in their house. The
accused unlawfully entered into the
house armed with dangerous
weapons. In the house the accused raped the complainants at least
twice. After raping the complainants
the accused robbed them of two
cellphones, jewellery and a jacket.
[3]
The accused pleaded not guilty on all the charges. They denied that
the incident took place whatsoever. Accused 1, in addition,
claimed
an alibi. He disclosed the details of his alibi in his plea
explanation. Accused 2 maintained that he and the daughter
([P…….]);
one of the complainants, had an affair. The mother discovered them
together in the house and chased him
away with a threat of reporting
him for rape. The cell phones were given to him by [P……]
to have it repaired. He
returned it to them at a later stage and
before he was arrested.
[4]
The two complainants testified for the State. A friend that overheard
a telephone conversation allegedly to be between accused
2 and
[P…..], also testified. He was also one of a group of people
that tried to arrest the said accused.
[5]
At the close of the case for the prosecution, Mr. Nkhahle brought an
application for both the accused’s discharge in terms
of
section
174
of
the
Criminal
Procedure Act, No. 51 of 1977
.
The
basis of his application is the poor quality of the evidence of the
State’s witnesses. According to him the standard of
the
evidence culminates into no evidence on which a reasonable court can
convict.
[6]
Mrs. Giorgi, on behalf of the State, did not oppose the application
in regard of accused 1. She argued that the evidence against
accused
2 does not permit his discharge.
[7]
Contemplation of the evidence specific to this case and the law on
the discharge of an accused at the end of the State’s
case as
it has developed over the decades, pre and post – constitution,
illuminated some key issues that want discussion.
These are:
7.1
The rule.
7.2
Perspective on the nature of the rule.
7.3
The test to be applied.
7.4
Evaluation of the quality of the evidence
of the state witnesses.
7.5
The evaluation of identifying witnesses and
alibi evidence in adjudicating the quality of the evidence of
the state witnesses.
[8]
Due to the difference in the evidence against the two accused their
applications will be dealt with separately.
[9]
Section 174
of the CPA
provides for the accused to be discharged:
“
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.”
[10]
The evaluation of the evidence is different than at the end of the
trial. It is a
sui generis
interlocutory
procedure. This process has been typified as a question of law and
not fact. For this reason assessors are prohibited
from partaking in
rulings in terms of
section 174.
The court must keep this important
feature in mind when adjudicating an application.
[11]
The words ‘no evidence’ in the section have been
interpreted to mean no evidence upon which a reasonable court
acting
carefully may convict. Again; the no-evidence test is
sui
generis
. The test, contentious over the
years, was codified in case law in
Shuping
1983 (2) SA 119
(B):
“
The
first consideration is whether there is evidence on which a
reasonable person may convict. If the answer is “yes”,
a
discharge should be refused. If the answer is “no”, it
must be asked whether there is a reasonable possibility that
the
defence evidence might supplement the state’s case. “
[12]
This second leg of the test has occasioned some controversy until the
Supreme Court of Appeal declared it unconstitutional
in
Lubaxa
2001 (2) SACR 703
(SCA).
“
Clearly
a person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely in
the expectation
that at some stage he might incriminate himself. That is recognised
by the common law principle that there should
be ‘reasonable
and probable’ cause to believe that the accused is guilty of an
offence before a prosecution is initiated
(Beckenstrater v Rottcher
and Theunissen
1955
(1) SA 129
(A)
at 135C-E), and the constitutional protection afforded to dignity and
personal freedom
(s 10
and
s 12)
seems to reinforce it. It ought to
follow that if a prosecution is not to be commenced without that
minimum of evidence, so too
should it cease when the evidence finally
falls below that threshold.
I
have no doubt that an accused person (whether or not he is
represented) 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.
The
failure to discharge an accused in those circumstances, if necessary
mero motu, is in my view a breach of the rights that are
guaranteed
by the Constitution and will ordinarily vitiate a conviction based
exclusively on his self-incriminatory evidence.
The
right to be discharged at that stage of trial does not necessarily
arise, in my view, from considerations relating to the burden
of
proof (or its concomitant, the presumption of innocence) or the right
of silence or the right not to testify, but arguably from
a
consideration that is of more general application.”
[13]
As it was clearly stated above there is not an onus in the usual
sense of the law;
and
specifically not an onus on a prima facie basis to be met by the
State. During my tenure on the bench the majority of applications
involved a reference by either the State or the Defence during
address that the onus to be prima facie.
[14]
‘Prima facie’ is defined as that; if the party on whom
lies the burden of proof goes as far as he reasonably can
in
producing evidence and that evidence calls for an answer, it is prima
facie evidence. In the absence of an answer from the other
side it
becomes conclusive.
[15]
This is not the position in criminal law during the adjudication of a
section 174-application. In a criminal matter t
he
accused has a right to silence and against self-incrimination.
It often happens that the accused choses to close his/her
case after
refusal of a 174- application and is nonetheless acquitted.
Evidence
at the close of the State case does not automatically becomes
evidence beyond a reasonable doubt.
Here another test will be applied.
It
is not beyond a reasonable doubt and it is not on a balance of
probabilities.
[16]
It is a sui generis test that must be
applied with judicial discretion on the specific facts and
circumstances of each case. The
test is, simplistically put and in my
view, a combination of the first leg of the Shuping-case, the dictum
in the Lubaxa-case and
the principles of a fair trial in terms of
terms of the Constitution of the Republic of South Africa, 1996.
[17]
In
S
v Lavhengwa
1996
(2) SACR 453
(W)
the view was expressed that the processes under section 174 translate
into a statutorily granted capacity to depart discretionally,
in
certain specific and limited circumstances, from the usual course.
This, to cut off the tail of a superfluous process. Such
a capacity
does not detract from either the right to silence or the protection
against self–incrimination. If an acquittal
flows at the end of
the State case the opportunity or need to present evidence by the
defence falls away. If discharge is refused,
the accused still has
the choice whether to testify or not. There is no obligation on him
to testify.
[18]
The preferred process of law and the compass on which this matter
will be adjudicated is to be found in
Gqozo
(2)
1994 (1) BCLR 10
(Ck). Heath J indicated that in considering the
provisions of section 174 the following would probably be the
considerations that
would give effect to the wishes of society and
the purpose of The Constitution.
“
1.
An innocent person must as far as possible never be convicted of a
crime.
2.
The conviction of a guilty person must be obtained with the best
possible endeavors. The prosecution representing the community
must
fulfill their duties within the framework of the law and the
available facts.
3.
The right to remain silent and the satisfaction of the
responsibility which is on the State must be satisfied as far as
possible.
4.
The rights of the accused are very important.
5.
The right of the community to see that justice is done is equally
important.
6.
To achieve these goals instruments should be used in such a way that
justice is done to everybody.”
[19]
The instruments to be applied are those in the law depicted as above.
Some further dicta developed on specific issues such
as the
credibility and quality of evidence, circumstantial evidence,
multiple accused, identification and alibis.
[20]
There is some disagreement as to whether the credibility of state
witnesses should be taken into account in deciding whether
to grant a
discharge. In
Dladla
(2)
1961 (3) SA 921
(D) and
National
Board of Executors Ltd
1971 (3) SA
817
(D), it was held that credibility is not a matter to be taken
into account when considering a discharge, but one to be considered
at the conclusion of the case.
However,
credibility was considered a relevant factor in
Nandha
Gopal Naidoo
1966 (1) PH H104
(W);
Nortje
1961 (2) PH H166 (O);
Bouwer
1964
(3) SA 800
(O) and
Mpetha
1983 (4) SA 262
(C).
In
Mpetha
at 265D-G, for example, Williamson J held that credibility would play
only a very limited role and the evidence should be ignored
only if
it was of such poor quality that no reasonable person could possibly
accept it. This view is preferable, in that it would
prevent hopeless
cases, with the attendant expense, anxiety and frustration to an
accused, from continuing.
This
sentiment was also echoed and expanded on in
S
v Agliotti
2011
(2) SACR 437
(GSJ)
and
S
v Dewani
(CC15/2014)
[2014] ZAWCHC 188
(8 December 2014).
Accused
1
[21]
The quality of the evidence against Accused 1 is not in dispute; Mrs.
Giorgi, on behalf of the State, conceded that the only
identifying
witness was unreliable on this point. The circumstances and detail of
identification are vague and confusing. Crucial,
is that there is no
evidence on which the arrest of the first accused was based. The
identification process was botched in that
the police pointed to the
accused in the charge office where he sat cuffed and under arrest and
inquired from the complainant whether
he was the perpetrator.
[22]
I do remind myself of the circumstances of the case and the possible
tension the witnesses were and are under. But, their testimony
is the
only instrument with which the court can adjudicate the evidence; if
it is lacking it cannot be rescued in any way. A further
burden on
the evidence of the witness is the caution with which the evidence of
identifying witnesses must be regarded. The witness
might be
subjectively honest and credible but the evidence itself can lack
trustworthiness. Corroboration for the evidence of both
witnesses is
lacking on this dispute.
[23]
The opposite is present in the defence and detail of the alibi of the
accused that was presented during the plea proceedings
and in cross
examination. It is trite that the onus is on the State to disprove an
allegation of alibi. There was no evidence on
this issue forthcoming
in the State’s case.
[24]
It will be unconstitutional to put the accused on his defence in
light of the poor quality of the evidence against him. I do
not have
any option but to grant the application of accused 1.
Accused
2
[25]
The nature of the evidence against accused 2 is completely different.
To begin with, his own version places him on the scene.
He admits
sexual intercourse, but claims it to be with the consent of the
complainant; [P…….]. The defence disclosed
in plea and
cross examination is still in the wind and of little value. It must
be given substance by way of evidence under oath
and be tested under
cross examination. In all fairness, there is also little possibility
given the defence of the accused, that
he will advance the State’s
case if he
enters the witness box.
Further, the complainant that stands steadfast in
her denial of the version of the accused, is corroborated by the
mother and their
friend. Corroboration that is lacking in a mere plea
explanation and statements in cross examination. Lastly, the version
of the
accused still lacks detail and is vague and general.
[26]
The application must therefore be denied for accused 2.
ORDER
1.
The application for discharge in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
by accused 1 is
granted and on Counts 1, 2 & 3.
2.
The application for discharge in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
by accused 2 is
denied and on Counts 1, 2 & 3.
M.
OPPERMAN, AJ
On
behalf of the state: Adv S Giorgi
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
On
behalf of the accused: Adv. J Nkhahle
Instructed
by:Legal Aid: South Africa
BLOEMFONTEIN