THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION , KNYSNA )
Case N umber : CC 04 / 2024
In the matter between:
THE STATE
and
MBONELELI MSILA ACCUSED NUMBER 1
MBULELO JACK ACCUSED NUMBER 2
MONDE TSHE MESE ACCUSED NUMBER 3
LUNGISILE LUCAS ACCUSED NUMBER 4
Coram: Wille, J
Argument : 4 June 2025
Delivered: 4 June 2025
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INTERLOCUTORY DISCRETIONARY RULING IN TERMS OF SECTION 174 OF
ACT 51 OF 1977
_________________________________________________________________
WILLE, J:
[1] The legal representative for accused number 1 requests a discharge for his
client at the close of the prosecution's case . The applicable legislation provides as
follows:
‘…[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…’1
[2] Accused number 1 is effectively asking this court to find him not guilty at
this stage of the proceedings. This is in circumstances where he is but one of four
accused before the court. I say this because the applicable legislation determines
that the court ‘may’ discharge an accused person . Additionally, our jurisprudence
takes into account different considerations when dealing with multiple accused
persons.2
[3] Even on a liberal approach to the interpretation of th e discretion afforded to
the court in circumstances such as these, it is challenging to understand on what
basis accused number 1 holds the view that there is no evidence against him in
connection with the offences preferred against him in the indictment. One must
also consider that the credibility of the witnesses (even if this was relevant in this
case) is not an issue that falls to be taken into account by this court. The
application for a dis charge has no merit at all.3
[4] I say this for several reasons:
(a) There is no final inalterable prejudice against accused number 1 for
the failure to discharge him after the closure of the case for the
prosecution.
1 Section 174 of Act 51 of 1977.
2 It may be that this discretion is limited, which will be discussed later in this ruling.
3 This is in accordance with our jurisprudence.
(b) Accused number 1 may be acquitted upon finalising the proceedings
and applying the test for a final judgment on the merits.
(c) The ‘complaints’ raised by accused number 1 may be groun ds for
appeal should a conviction be returned against him.
(d) Thus, a ny discharge is manif estly premature .4
[5] Moreover, a ny application for a discharge in terms of this specified
legislation is interlocutory by its very nature. This is so because once the
prosecution rests after presenting its case with a finding that a prima facie case
was made against accused number 1, he may still lead evidence and call
witnesses , which may cause him to be acquitted.5
[6] The primary argument by accused number 1 is that there were
shortcomings in the evidence presented , which established the possibility that the
allegations against him might be untrue . Thus, it is contended that the only
possibility for his conviction would be if he elected to testify or call witnesses. I say
this because to establish this as a genuine discharge application worthy of
consideration, the contentions on behalf of accused number 1 are solely
underpinned by an analysis of the credibility of the witnesses for the prosecution.
Applying this jur isprudential test to the facts of this case, i t cannot be said there
was ‘no evidence’ on which a reasonable man acting carefully might convict .6
[7] Thus, I must indulge in the exercise of judicial discretion. Guidelines for the
exercise of this discret ion (concerning this species of this discretion ) have been
eloquently illustrated as follows:
‘…It seems to me that the rule is clear, namely, that if at the close of the
case for the Crown the evidence against the accused, or against one or
more of the accused, is not such that a reasonable man might convict upon
it, the Judge had a discretion whether or not to discharge. He is quite
entitled to refuse to discharge if he considers that there is a possibility that
4 This application is in medias res.
5 The test to be applied at the conclusion of the trial is a different and a discrete test.
6 S v Mpetha 1983 (4) SA 262 (C) at 266H.
the case for the Crown may be strengthen ed by evidence emerging during
the course of the defence…’7
[8] Sometime after this, our jurisprudence was further developed by formulating
and suggesting a two -stage approach to be considered when evaluating the
discharge of an accused person after the prosecution has closed the case . What
was stated was the following:
‘…The position can be summed up as follows: At the close of the State
case, when discharge is considered, the first question is: (i) Is there
evidence on which a reasonable man might conv ict; if not , (ii) is there a
reasonable possibility that the defence evidence might supplement the
State case? If the answer to either question is yes, there should be no
discharge , and the accused should be placed on his defence…’8
[9] Thus, once the prosecution establis hes prima facie evidence linking
accused number 1 with the commission of the alleged offences, credibility would
only become a consideration once (and if) the evidence was of such poor quality
that no reasonable person could accept it .9
[10] Following an objective analysis of the evidence in this case so far , no
finding could reasonably be returned against the poor quality of the evidence
presented by the prosecution. Thus, we are left with criticisms about the credibility
of the allegations against accused number 1 to the limited extent that it is
reasonabl y possible that he may be innocent . Undoubtedly, this does not meet
the threshold test for a judicial discharge on the facts of this case given the
overwhelming evidence against accused number 1.10
[11] Further, no irreparable prejudice would result shoul d the trial be allowed to
proceed to finality because accused number 1 may well be acquitted in the
process. Put another way, if a conviction were to follow , the complaints raised
7 R v Kritzinger 1952 (2) SA 401 (W) at 406 -A.
8 S v Lubaxa 2001 (2) SACR 703 (SCA).
9 S v Mpetha 1983 (4) SA 262 (C).
10 This is not a ground for a discharge.
may provide grounds for an appeal but are not grounds that this court must deal
with in medi as res for an application for a discharge.11
[12] Further more , the complain ts raised may be connected with accused
number 1’s rights regarding an infringement of his right to a fair trial. These
complaints must be viewed in the context that the trial process regarding accused
number 1 has not yet been completed. The position in our law concerning this
issue has been eloquently formulated as follows:
‘…Once again, it is our respectful view that the applicant 's reliance on the
provisions of the Constitution with regard to his fair trial rights do es not
justify interference in criminal proceedings which are mid -stream, and more
so where the applicant has failed to demonstrate any legal basis for th e
relief sought in this court …’12
[13] Many significant trial rights exist and find application in our criminal and
procedural law. One of the most important ones is the presumption of innocence.
A failure by the prosecution to mount sufficient evidence at the closure of its case
gives an accused person an opportunity to escape having to defend themselves .13
[14] It is trite that the threshold test of evidence presented and thus required by
the prosecution at the closure of its case to avoid discharge is considerably lower
than the standard the prosecution has to meet to secure a conviction (if any). This
threshold test , relating to the discharge of an accused after the prosecution has
closed the case, has been consistently applied by our courts over many years.
However, it is the exception to this test, which is a cause for caution, like that of a
chameleon.14
[15] The exception in our procedural law is that a court may discharge an
accused when the evidence presented by the prosecution is of such poor quality
that no reasonable man acting carefully could convict based on it . What this
11 These complaints may later manifest as grounds of appeal at a later stage(if at all).
12 Motikeng v Regional Magistrate Beaufort West and Another 2023 JDR 0119 (WCC) at [39].
13 This is not the case that has been presente d.
14 S v Lubaxa 2001 (2) SACR 703 (SCA).
exception may permit is a limi ted probe into the issue of the credibility of the
evidence presented by the prosecution.15
[16] In my view, this is where the difficulty lies, as this ‘credibility’ exercise does
not strictly fall within the remit of a judicial officer at the stage when t he
prosecution has closed its case.16
[17] Thus, this discharge device in our law is , in real terms, just a sentinel
against conviction in the face of spurious evidence presented by the prosecution.
Harm may occur when this procedural mechanism is used as a device by an
accused person to attempt either:
(a) impermissibly persuade a judicial officer to embark on premature
credibility findings regarding the evidence presented by the
prosecution and/or,
(b) impermissibly gain a window into the judicial thoug ht process of the
judicial officer so that an accused person may tailor his or her
defence case going forward.17
[18] It is also not for this court, in medias res , to now evaluate the evidence
presented by the prosecution, except in limited circumstances in the category of
the discharge procedure, which I have styled as an exception to the standard
method to be followed.18
[19] Undoubtedly, we are dealing with out -and-out issues about credibility, which
this court is best s uited to decide on after hearing all the available evidence. Put
another way, accused number 1 will not suffer irreparable prejudice if the trial
proceed s in that he may be acquitted . Besides, even if a conviction w ere to follow,
the complaints he raises may constitute ground s for appeal. In my view, a ccused
number 1 is impermissibly attempting to utilise the discharge provisions as a
mechanism or tool to gai n insight into the strengths and weaknesses of the case
15 S v Schwartz 2001 (1) SACR 334 (W).
16 This is an area of some vigorous academic debate.
17 This is precisely what accused number 1 is attempting to do.
18 This is wh at may occur ultimately in the appeal process.
for the prosecution to tailor his evidence from now on or to assist him with his
decision on whether or not he should testify in his defence and call witnesses. This
is not the purpose for which the d ischarge provisions were designed.19
[20] Thus, the application for the discharge of accused number 1 is refused.
__________
E. D. WILLE
(KNYSNA)
19 This is legally impermissible.