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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: CC88/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES
SIGNATURE:
DATE: 19/09/2025
In the matter between:
THE STATE
V
P[...] M[...] M[...] ACCUSED
JUDGMENT ON SECTION 174 APPLICATION FOR THE DISCHARGE OF THE
ACCUSED
MOSOPA J
1) The accused, P[...] M[...] M[...] a 48-year-old South Africa citizen, residing at
Block A[...], Extension 19, Atteridgeville, Pretoria West, according to the indictment is
arraigned in this court on a charge of murder in terms of the provisions of section
51(1) of Act 105 of 1997. Allegations levelled against the accused, are that he
unlawfully and intentionally killed the deceased mentioned in the indictment who was
married to him, by administering poison or noxious substance in her food.
Applicability of section 51(1) of the Act 105 of 1997 is based on the fact that the state
alleges that the murder is premeditated or planned.
2) This is an application for discharge of the accused in terms of the provisions
of section 174 of Act 51 of 1997 at the end of the state's case. The accused is still
represented by Mrs Naidoo and the state is still represented by Ms Mafunisa from
the Director of Public Prosecutions, Pretoria.
3) Section 174 of Act 51 of 1977, makes the following provision;
"(174) 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 o r any offence of which he may be convicted on the
charge, it may return a verdict of not guilty."
4) It is trite 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 135 C E). Simply put, the state
must have sufficient evidence against the accused before charges are initiated
against the accused. Meaning that prosecution should not be commenced without
that minimum evidence and as a result, it should cease when the evidence finally
falls below that threshold.
5) Evidence is that there was a stage when the charge was withdrawn against
the accused when the matter was still serving in the lower court and only t o be
reinstated at a later stage. No reasons in this court were advanced as to what
necessitated such withdrawal of the charge levelled against the accused.
6) Section 174 gives a trial court the power to decide not to put the accused on
his or her defen ce if there is no case for the accused to answer. The words "no
his or her defen ce if there is no case for the accused to answer. The words "no
evidence" in the section have been interpreted to mean no evidence upon which a
reasonable man acting carefully may convict. (S v Agliotti 2011(2) SACR 437 (GSJ)
at para 257). A statement by the accused's legal representative in what the accused
would say if called to testify, does not amount to evidence for the purpose of
determining section 174 application (S v Phillips and Others WCC case no A70/22,
15 September 2022 at para 24).
7) The i ssue relating to credibility of the state witnesses at section 174
application has seen a number of conflicting judgments. The position was settled in
S v Mpetha and Others 1983 (4) SA 262 (C) when Williamson J, held that credibility
would play only a very limited role and the evidence ignored only if it was of such
poor quality tha t no reasonable person could possibly accept it. (see also S v
Agliotti (supra)).
8) In S v Lubaxa 2001 (2) SACR 703 (SCA) the following was stated;
"[18] I have no doubt th at 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 di scharge 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 upon his selfincriminatory evidence.
[19] The righ t to be discharged at that stage of the 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 f rom a consideration that is of more general
application. 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
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 final ly falls below that threshold. That
will pre-eminently be so where the prosecution has exhausted the evidence
and a conviction is no longer possible except by self -incrimination. A fair trial,
in my view, would at that stage be stopped, for it threatens th ereafter to
infringe other constitutional rights protected by s 10 and s 12."
9) In S v Dewani (CC15/2014) [2014] ZAWCHC 188 (8 December 2014) ,
Traverso DJP stated that;
"[15] To therefore summarise the legal position regarding applications in terms
of section 174:
(a) An accused person 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;
(b) In deciding whether an accused person is entitled to be discharged at
the close of the State's case, the court may take into account the credibility of
the State witnesses, even if only to a limited extent;
(c) Where the evidence of the State witnesses implicating the accused is
of such poor quality that it cannot safely relied upon, and there is accordingly
no credible evidence on record upon which a court, acting carefully, may
convict, an application for discharge should be granted."
1O)Accused pleaded not guilty to the charge levelled against him and exercised his
constitutional right to remain silent. The test applicable in section 174 application is a
civil test, balance of probabilities and that the state must establish a prima facie case
against the accused.
11) The accused made the following admission in terms of section 220 of Act 51
of 1977 which are;
11.1. he was married to the deceased and they were in a domestic
relationship,
11.2. that on the day the deceased died, she ate the food that was prepared
by him,
11.3. that the food in the plate out of which the deceased ate had what
looked like small black seeds.
12) The following are the proven facts in casu;
12.1. that the deceased caused to be issued the divorce summons against
the accused in the Pretoria Regional Court,
12.2. such summons was not defended by the accused, and at the time of
death of the deceased, the divorce process was not yet finalised,
12.3. the deceased was supposed to have left the common house on the
weekend when she passed away to stay elsewhere,
12.4. the deceased at the time of her death was pregnant with a child not
belonging to the accused,
12.5. at the time of her death, the accused was unemployed and deceased
was employed as a security officer and she would spend a week away from
home, sleeping at her employer's premises when she is on duty. She would
only come home when she was off duty,
12.6. Mr Lesiba Esau Monare from the Forensic Chemistry Laboratory
received sev eral exhibits for analysis. In the stomach contents specimen of
the deceased, he detected Terbufos and efavirenz. In another exhibit under
the seal bag PA 5002627395, which was collected from the scene, he
detected Terbufos,
12.7. at post -mortem it was f ound that the stomach of the deceased
contained approximately 300ml of partially digested composed of vegetables,
fish and tea -like material. The food is mixed with grey -like poppy seed -like
granules in keeping with Termik, and
12.8. the cause of death at post-mortem was found to be "in keeping with
poisoning by ingestion: carbamates/organophosphates."
13) There is no eyewitness to the commission this murder. The state in trying to
prove the guilt of the accused is relying on circumstantial evidence and hearsay
evidence. Firstly, what the deceased told Elizabeth her neighbour before her death
and secondly, the statement of Elizabeth who died before testifying in this matter. I
have already made a ruling on the admissibility of the hearsay evidence of Elizabeth,
and such statement is admitted into evidence.
14) The deceased left her home in the morning o f the day of her death and only
arrived home at approximately 18h00 and requested accused to buy her tin· fish,
which he eventually cooked together with tomatoes, and the deceased ate such food.
There was a stage when, after the accused left, the deceased went to her
neighbour's place to show her food that was dished to her by accused and the dish
in which accused was eating from. That evidence is confirmed by accused because
after coming back to where he went to, together with their child, L[...], they met the
deceased coming from their neighbour's place with such bowls.
15) There is no evidence that the deceased was sick at that stage but became
sick afterwards. She requested T[...], her son, to prepare what was said to be
"Mohamolo", a concoction of warm water and salt. T[...] left after providing the
deceased with such concoction. When he returned, the deceased condition had
worsened, she went outside their shack in an attempt to get fresh air and returned
back but her condition kept on worsening.
16) At approximately 23h00, Elizabeth phoned Mr and Mrs M[...] and informed
them of the fact that the deceased is seriously sick. When they arrived there, they
found the deceased lying on the floor and she was wet, and she could not speak.
Mrs M[...] assisted in undressing the deceased and at that stage, the deceased was
foaming. Mrs M[...] asked the accused as to what the problem was but accused did
not answer her. She also asked why was the deceased wet, nobody including the
accused answered her. It was on the second occasion when she asked him as to
what happened to the deceased, he said that, "the deceased told him that she went
to Laudium clinic and on her way back she passed by her friend's place and she ate
to Laudium clinic and on her way back she passed by her friend's place and she ate
chicken which was dished to her by her fri end, she was not okay at that stage and
she was looking sick. The ambulance arrived and the deceased was eventually
taken to hospital and was declared dead there.
17) No traces of chicken were found in the stomach content of the deceased at
post-mortem and more especially when such stomach contents were analysed. What
is also important is the evidence of T […], that when he wanted to dish himself food,
accused told him not to do that and also not to touch the food, an instruction that he
respected. Also, the fact that when his mother returned home, she was not sick. The
accused and the deceased would at times physically assault each other. Further,
that the deceased asked the accused what he put in her foo d, and the accused did
not respond to such question.
18) Dr Makgoba, a pathologist who conducted a post -mortem examination and
compiled a report which was admitted into evidence in terms of section 220,
explained what he meant in his post -mortem report when he said, grey black poppy
seed-like granules i n keeping with Termik. He said Termik is a trade name of a
compound called Aldicarb/Termik which falls under the group of carbamates or
organophosphates.
19) Criticism is levelled by Ms Naidoo on the manner the case was investigated,
the poor handling of exhibits collected from the scene and failure to present
important exhibits for investigation. The late obtaining of the statements and the
contradictions inherent in the state witnesses' testimonies. Further contended that all
are indicative of the fact that the state did not present a prima facie case against the
accused upon which a responsible man acting carefully may convict.
20) The only issue, considering that a majority of the facts are common cause, is
who poured poison in the food that the dece ased ingested. Ms Naidoo further
contents that it is not clear as to what the jar that T[...] used to make his mother the
Mohamolo contained as it was not cleaned before Mohamolo was made. But sight
should not be lost of the fact that it was because of the of the burning sensation in
the stomach of the deceased that resulted in a request for a preparation of
Mohamolo.
the stomach of the deceased that resulted in a request for a preparation of
Mohamolo.
21) Dr Makhoba's uncontested evidence is that after ingestion of a poison, that
was found in the stomach content of the deceased, a person w ill show symptoms,
which include sweating, whizzling when breathing because of the fact that the lungs
will be filled with liquid, struggling to breathe, heart beating heavily, seizure, falling
into coma etc, depending on the individual, after 15 to 20 minutes of consumption.
22) Based on this evidence, if the deceased could have consumed the chicken at
the friend's place, she would have arrived home already presenting with the above
symptoms, which on the evidence of T[...] and admitted hearsay evidence of
Elizabeth is not present.
23) Ms Naidoo contended that there is a possibility that the deceased wanted to
terminate her life, considering the following factors,
23.1. she told the accused not to call the ambulance and not to inform her
sister about her condition,
23.2. we do not know what her relationship with the father of the child was
that she was carrying, also considering the fact that she concealed that
according to the knowledge of the accused, as accused learned for the first
time about the deceased' pregnancy when the par amedics came to fetch the
deceased.
24) If the deceased wanted to terminate her life, in my view, I deem it
unnecessary for her to have went to Elizabeth and informed her about all that she
said to her. The delay in calling for the ambulance can be attrib uted to the fact that
she had belief that after consuming Mohamolo, her situation would improve.
25) As to the pregnancy, the deceased was going to leave the premises during
the weekend of her passing away and already she instituted divorce proceedings
against the accused. It is therefore my considered view that her pregnancy could not
have been the cause why she wanted to terminate her life, if really she wanted to
terminate her life. She had at that stage already informed her child T[...] and her
sister C[...] M[...] that she is pregnant. The only person who did not know of her
pregnancy was the accused.
26) The state Is requested not to establish the guilt of the accused beyond
reasonable doubt at this stage of the proceedings. I do not agree with Ms Naidoo
that the state failed to establish a prima facie case against the accused. The tin fish
collected at the scene had soil particles when analysed, which is the corroboration of
the state's evidence that such was collected next to the tap.
ORDER
27) In the result, the following order is made;
1. The application for the discharge in terms of section 174 of Act 51 of
1977 is hereby refused.
2. The accused is hereby placed to his defence.
M.J. MOSOPA
JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES:
For the State : Adv E Mafunisa
Instructed by : Director of Public Prosecutions, Pretoria
For the Accused : Adv N Naidoo
Instructed by : Adv T Vukeya (Instructing counsel)
Date of hearing : 15 September 2025
Date of Judgment : 19 September 2025