IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: CC 82/2020
In the matter between:
THE STATE
and
CEBO SOBOYISE ACCUSED 1
ZOLA GOLELA ACCUSED 2
Heard: 27 January 2026
Delivered: 28 January 2026
Summary: Criminal Procedure: Section 174 applications at the ned of the
States case. Multiple counts preferred against Accused. Insufficient or no direct
evidence on the elements of the charges, as considered count by count entitles
Accused to be discharged on those counts. Duties of Counsel in s ection 174
applications considered.
JUDGMENT ON SECTION 174 APPLICATIONS
Bhoopchand AJ:
[1] At the close of the State’s case, both accused filed section 174
applications under the Criminal Procedure Act 51 of 1977. They are being tried
for four separate crimes that took place between 4:30 p.m. on 26 November
2019 and the early hours of 27 Novembe r 2019. Accused 1 faces fourteen
charges, while Accused 2 is charged with thirteen, including murder, robbery
with aggravating circumstances, attempted murder, and possession of firearms.
Additionally, Accused 1 is charged with possession of ammunition.
[2] The State closed its case on 27 January 2026. Counsel for the Accused
were forewarned that the State’s case was nearing its end, and the defence
should proceed and prepared to advance any applications arising at the close of
the State’s case. A section 17 4 application is ordinarily made orally from the
bar, and no prejudice arises from requiring Counsel to proceed in that manner.
While considering the submissions made by the State as well as Counsel for the
Accused, the Court realised that the State had le d no direct evidence on counts
8,9,10,11 and 12. The parties were permitted to supplement their oral
submissions prior to judgment being delivered on the section 174 applications.
[3] The State is required to present sufficient evidence against the accused to
support a conviction at the conclusion of its case. If, upon the completion of the
prosecution's presentation in any trial, the court determines that there is no
evidence indicating the accused committed the alleged offence or any related
offence for which a conviction could be entered under the charge, it may render
a verdict of not guilty. No evidence means no evidence on which a reasonable
Court, acting carefully, might convict ( R v Shein 1925 AD 6 (W), S v Lubaxa
2001 (2) SACR 703 (SCA)).
[4] A Court exercises a discretion at the close of the State’s case on whether
to discharge an accused person. A Court may assume that there was ‘reasonable
and probable’ cause to believe that an accused person is guilty of an offence
before a decision to pros ecute is taken. The case against an accused person
should cease when the evidence falls below the threshold even if there is a
possibility that the case for the State m ay be augmented by evidence emerging
during the defence (S v Shuping and Others 1983 (2) 119 (BSC) at 120) 1, S v
Mathebula 1997 (1) SACR 10 (W ) at 147 and S v Lubaxa (supra) at para 19).2
That is not the case that this Court has to consider. A Court does not evaluate
the evidence at the close of the State’s case . Its task is to determine whether
there is the presence or absence of facts that could lead to a conviction ( S v
Cooper [1974] 3 All SA 253 (T) at 266), S v Lubaxa (supra) . Both accused in
their respective applications and relying on the established law and caselaw
relating to section 174 applications , contend that the State has failed to
discharge this onus and seek their discharge.
[5] Section 174 of the Criminal Procedur e Act is a safety valve. It prevents
an accused person from being forced to present a defence when the State has not
produced any evidence on which a reasonable court might convict . It is not
about whether the State has proved its case beyond reasonable do ubt. It is not
1 The second part of the Shuping test remains intact in cases involving multiple accused. This aspect is
addressed in response to a submission on behalf of the State.
addressed in response to a submission on behalf of the State.
2 Managay Reddi, Bhavna Ramji: Section 174 of the Criminal Procedure Act: Is it time for its abolition?
De Jure, 51 Volume 2 2018 pp 251-270
about weighing credibility in a final sense . It is not about choosing between
competing versions . It is simply about th e threshold question of whether the
State produced some evidence on each element of each charge that, if left
unanswered, could possibly sustain a conviction . If the answer is yes, the
application must fail. If the answer is no, the accused is entitled to be discharged
on that count.
[6] It is worth repeating Counsel’s duty to their client’s as well as to the
Court in section 174 applications. Counsel should bring a section 174
application in certain defined instances including when there is a complete
evidentiary vacuum on an essential element , the State’s case is so utterly
lacking that even if believed, it cannot sustain a conviction , or if t he State has
failed to link the accused to a particular count. Section 174 can be granted count
by count. If the State has evidence linking the accused to some counts but not
others, a partial discharge is appropriate. Counsel should not bring a section 174
application in instances when there is prima facie evidence on the elements, the
application is used as a tactical “fishing expedition” , the evidence is
circumstantial but coherent , or if the accused is c learly implicated but disputes
the inference. If there is more than one inference possible from evidence that is
largely circumstantial , the Court must consider at this stage whether a
reasonable person might, not should , draw the inference sought to be drawn by
the State ( S v Ostilly and Others 1977 (2) SA 104 (D&CLD) at 107 A-C, S v
Cooper and Others (supra) at 888-890).
[7] Certain of the aspects canvassed thus far requires brief elaboration. A
complete evidentiary vacuum means that there is no eviden ce that the accused
was present, there is no evidence linking the accused to the weapons, there is no
evidence that the items recovered were stolen, and there is no evidence of
intention where intention is an element. Section 174 can be granted count by
count and if the State has evidence linking the accused to some counts but not
others, a partial discharge may be appropriate. Even if evidence is weak,
contradictory or attacked under cross examination, as long as it exists, the
threshold is met. As for an application being a fishing expedition, it should not
be raised reflexively in the hope that a Court may be influenced to grant the
application. It is not intended to preview the Court’s thinking, to test the
strength of the State’s case or to force the Court into premature credibility
findings. Section 174 is not the stage for resolving competing inferences. That
falls within the realm of the defence case.
[8] Accused 1 was found with a firearm in his possession that was
ballistically linked to three crime scenes. He was present in the vehicle seen at
the crime scenes. Items stolen from at least one crime scene was found in the
car. Accused 2 was the owner of the implicated vehicle. He was present in the
vehicle with the stolen items. He possessed a firearm even though it was not
linked ballistically to the crimes. His stolen car affidavit appears fabricated or at
least highly suspect. Both accused were arrested together in the implicated
vehicle that was tracked through the stolen iPhone. They were found with
firearms shortly after the spree. There were stolen goods in the car which was
spotted at all four scenes.
[9] This is not a no evidence case. It is a case of substantial circumstantial
evidence. Counsel representing the accused have a duty to their clients as well
as to the Court. As a matter of professional ethi cs, they must explain the
purpose of the application, explain the risks, i.e., it may fail and the defence will
have to proceed, ensure that the accused understand that the application is not a
comment on guilt but a procedural mechanism. Counsel have a du ty to act in
their client’s best interests, to ensure informed decision making, and a duty not
their client’s best interests, to ensure informed decision making, and a duty not
to mislead the client about the strength of the State’s case. Counsel have a duty
to the Court not to misrepresent or misconstrue the evidence, engage
satisfactorily with the record, avoid frivolous applications, and respect the
limited scope of the test. In amplification, Counsel may argue that the evidence
is insufficient, but they may not ignore evidence that clearly exists, distort what
witnesses said, or pretend that evidence was not led. Section 174 is not a
rhetorical exercise. It requires a fair and accurate reflection of the State’s case.
Counsel should ask themselve s whether an application is hopeless a s part of
their duty as officers of the Court and advise their clients accordingly. A section
174 application is not intended to elicit premature credibility findings, weigh
probabilities or resolve factual disputes.
[10] The submission on behalf of accused 1 that the State has led no evidence
to positively identify him as a perpetrator of any of the crimes and that there is
thus no identification, misconceives the legal requirement. The State is not
obliged to produce eyewitness identification. Identity may be established
through circumstantial evidence. In this matter, the ballistic evidence linking the
firearm found in Accused 1’s possession to three crime scenes, the presence of
both accused in the getaway vehicle shortly after the offences, the recovery of
stolen items in that vehicle, and the technological tracking of the vehicle via the
stolen iPhone c onstitute evidence on which a reasonable court might convict.
Accused 1 criticised the non-specificity of the ballistics evidence , the evidence
relating to the gun powder residue, cellphone evidence and the inferences
relating to the pursuit of a common pu rpose. These are issues that should be
reserved for argument at the end of this case.
[11] Counsel representing Accused 2 relied upon the criteria laid down in S v
Mgedezi and Others1989 (1) SA 687 (A) at 705I -706C, S v Safatsa and Others
1988 (1) SA 868 (A) , as distilled, in a situation where the State cannot p lace an
1988 (1) SA 868 (A) , as distilled, in a situation where the State cannot p lace an
accused inside a crime scene but relies upon a common purpose for conviction.
The State must show circumstantial evidence of presence, association,
knowledge, participation, and intention to make common cause. Accused 2
contends that the State has not discharged this onus. The enquiry at the section
174 stage is whether there is evidence on which a reasonable Court might find
that Accused 2 associated himself with the other perpetrators that committed the
crimes for which he is charged.
[12] Although there is no direct evidence that Accused 2 personally
discharged a firearm or entered the premises during the commission of the
offences, the circumstantial evidence against accused 2 is substantial. The
evidence places him in the vehicle used at all crime scenes, in possession of
stolen items shortly after the offences, and in association with Accused 1. The
vehicle was tracked through the stolen iPhone, and the affidavit alleging that the
vehicle was stolen appears to be fabricated. These facts constitute circumstantial
evidence on which a reasonable court might find that Accused 2 associated
himself with the perpetrators that committed the robberies and murders. At this
stage, the court is not required to make credibility findings or resolve competing
inferences. Accused 2 criticised the identification evidence and the flaws in the
clothing identification parade.
[13] The State opposed the app lications. The State Prosecutor conceded that
no individual witness identified Accused 1 as an assailant. The States case
relied entirely upon circumstantial evidence. The State identified further
evidence beyond that which the Court has alluded to that links Accused 1 to the
crimes. These include the evidence that a firearm was discharged inside the
liquor store. The cartridge was collected and linked to the Walther model semi-
automatic pistol found on Accu sed 1’s person. Accused 1’s cellphone was
activated during the time of this robbery and in the vicinity of the crime scene.
A cartridge was collected inside the store at the Idahoff crime scene . The
cartridge was linked to the firearm found on Accused 1. Accused 1’s cellphone
activated a cellphone tower in the vicinity of the crime scene. The iPhone taken
at the store was tracked and led to the arrest of Accused 1. In the case involving
the shooting of two brothers in Delft , the cartridges retrieved from t he scene
linked the firearm found on Accused 1’s person. Accused 1’s cellphone
activated a tower near the crime scene. There was gunshot residue found on
Accused 1’s right hand. In the case involving the fatal shooting of a police
officer, the motor vehicle in which Accused 1 was arrested was described at the
crime scene. The police officer was robbed of a cellphone , positively identified
as his, was found in th e motor vehicle occupied by Accused 1. The State
contended that the evidence called for an answer from Accused 1. He is
presented with an opportunity to present his case in defence.
[14] The State identified further details of the evidence beyond that which the
Court has alluded to that links Accused 2 to the crimes. Accused 2 admitted to
being the owner of the motor vehicle that was seen at the crime scenes. It was
put on behalf of Accused 2 that his vehicle was stolen on the day that the crimes
occurred and he reported the theft of the vehicle to the police. The authenticity
of the affidavit allegedly made at the Philippi police station regarding the stolen
vehicle was raised in evidence. The clothing worn by Accused 2 and eventually
retrieved from him after his arrest, matched those seen on one of the suspects in
the video footage relating to the liquor store robbery. Accused 2 had a firearm
on his person when he was arrested. The items stolen at the Idahoff superette
were found in Accused 2’s vehicle and the iPhone taken at that scene was used
to track its movement and the arrest of Accused 2. Accused 2 sat in the driver’s
seat of his vehicle when he was arrested. The colour of an item of his clothing
seat of his vehicle when he was arrested. The colour of an item of his clothing
was identified by a n eyewitness who testified about t he shooting of the police
officer. The State conceded that the clothing identification parade conducted by
the investigating officer was flawed and placed little if no reliance on it. The
threshold as far as the State’s case is concerned in section 174 is therefore met.
[15] Although counsel did not address the application on a count ‑by‑count
basis, the court is obliged to consider each charge individually. The first three
counts of ro bbery with aggravating circumstances relate to the liquor store
robbery. The clothing evidence as seen on the video footage and the ball istics
evidence links the Accused to these counts either individually or in pursuit of a
common purpose. Counts 4 and 5 relate to the fatal shooting of the Zakala
brothers in Delft. The ballistics evidence links the Accused to these counts
either individually or in pursuit of a common purpose. Count 6 concerned the
theft of the cellphone of the police officer who was fatall y shot. The cellphone
was found in the vehicle occupied by the Accused when they were arrested.
Count 7 re lates to the murder of the police officer in Delft. The re is ballistics
evidence that links the presence of a third firearm and a third person to this
count as well as to the liquor store robbery. The cellphone evidence places
Accused 1 near the crime scene. Counts 8,9,10 and 11 concern the robbery at
the Idahoff superette. No direct evidence was led by the State on these counts as
none of the complainants were called as witnesses. Count 12 is one of attempted
murder and the State has failed on this count as well to lead any direct evidence
on this count. All elements relating to each c ount was not covered by the
evidence. Both Accused stand to be discharged from each of th ese counts at the
end of the State’s case. The appropriate order will include this provision.
[16] Count 13 concerns the possession of a prohibited firearm. The serial
number had been filed off. The firearm was found in the vehicle occupied by
the Accused. Count 14 relates to the possession of ammunition which was
the Accused. Count 14 relates to the possession of ammunition which was
found in the vehicle occupied by the Accused when arrested.
[17] In the circumstances, the evidence led by the State that links Accused1
and Accused 2 is substantial . The Court is satisfied that the State has led
evidence on which a reasonable court might convict on each count except
counts 8,9,10,11, and 12. The applications as raised generally or as the Court
has considered on each count except for those where the Accused will be
discharged, in the respective applications must therefore fail.
ORDER
1. Accused 1’s section 174 application under the Criminal Procedure Act 51 of 1977
concerning counts 8,9,10,11, and 12 is granted and he is discharged on these counts.
2. Accused 1’s section 174 application under the Criminal Procedure Act 51 of 1977
concerning the remainder of the counts preferred against him is dismissed,
3. Accused 2’s section 174 application under the Criminal Procedure Act 51 of 1977
concerning counts 8,9,10,11, and 12 is granted and he is discharged on these counts.
4. .Accused 2’s section 174 application under the Criminal Procedure Act 51 of 1977
concerning the remainder of the counts preferred against him is dismissed,
5. The Accused are put on their defence.
___________________
BHOOPCHAND AJ
Acting judge
High Court
Western Cape Division
Judgment was handed down on 28 January 2026
State Prosecutor: Advocate Rudolph
Accused 1 represented by Advocate Vundla
Accused 2 represented by Advocate Kunju