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[2026] ZAGPPHC 323
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S v Mhlongo (CC44/2025) [2026] ZAGPPHC 323 (18 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: CC44/2025
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE
18 March 2026
SIGNATURE
In
the matter between:
THE
STATE
And
THAMSANQA
MHLONGO
Accused
JUDGMENT ON SECTION
174 APPLICATION
More AJ
[1]
At the end of the prosecution’s case,
the accused brought an application in terms of section 174 of the
Criminal Procedure
Act 51 of 1977 (CPA).
[2]
The application for discharge at the end of
the state case is regulated by section 174 of the CPA, which 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.”
[3]
There
is no doubt that the court hearing applications of this nature is
enjoined to exercise a discretion as to whether to grant
or to refuse
the application for discharge, where the court is of the opinion that
there is no evidence that the accused committed
the offences he is
charged with.
[1]
[4]
In
the matter of
S
v Lubaxa
,
[2]
the court, dealing with the discretion to be exercised by the courts,
said the following:
“
[9] The refusal to
discharge an accused at the close of the prosecution’s case
entails the exercise of a discretion and cannot
be the subject of an
appeal (Hiemstra
Suid-Afrikaanse Strafproses
5de uitg deur
Kriegler bl 825). […]
[10] Section 174 of the
Act repeats in all material respects the terms of its predecessors in
the 1917 and 1955 Criminal Codes.
It permits a trial court to return
a verdict of not guilty at the close of the case for the prosecution
if the court is of the
opinion that there is no evidence (meaning
evidence upon which a reasonable person might convict:
S v
Khanyapa
1979 (1) SA 824
(A) at 838F-G) that the accused
committed the offence with which he is charged, or an offence which
is a competent verdict on that
charge.
[11] If, in the opinion
of the trial court, there is evidence upon which the accused might
reasonably be convicted, its duty is
straightforward - the accused
may not be discharged and the trial must continue to its end. It is
when the trial court is of the
opinion that there is no evidence upon
which the accused might reasonably be convicted that the difficulty
arises. The section
purports then to give the trial court a
discretion - it may return a verdict of not guilty and discharge the
accused there and
then; or it may refuse to discharge the accused
thereby placing him on his defence.”
[5]
The
two main questions to be asked are as follows:
[3]
(a)
Is there evidence on which a reasonable
person might convict?
(b)
If not, is there a possibility that the
defence evidence might supplement the State's case?
[6]
Failure
to discharge where there is no evidence at the close of the State's
case would amount to an irregularity that may violate
the
constitutional rights of the accused. Section 35(3) of the
Constitution of the Republic of South Africa, 1996 guarantees every
accused person the right to a fair trial, which includes, amongst
others, the right to be presumed innocent, to remain silent and
not
to testify during proceedings.
[4]
[7]
However,
the right to be discharged at the end of the State's case does not
ordinarily arise from considerations relating to the
burden of proof,
the presumption of innocence, the right to silence or the right to
testify, but originally from a consideration
that is of more general
application.
[5]
[8]
The
State is required to present prima facie evidence against the accused
to support a conviction at the conclusion of its case.
If, at the
close of the State's case, 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 conferred 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.
[6]
[9]
Section 174 of the CPA 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 whether the State has proved its case
beyond a reasonable
doubt. It is not about weighing credibility in
the final sense. It is not about choosing between competing versions.
It is simply
about the threshold question of whether the State has
produced some evidence on each element of each charge. If the answer
is yes,
the application must fail. If the answer is no, the accused
is entitled to be discharged on that count.
[10]
An application is brought where there is a
complete evidentiary vacuum on an essential element; where it is
clear that the State's
case cannot sustain a conviction, or where the
State failed to link the accused to a particular count or counts.
[11]
The accused was charged with the following
counts:
(a)
Count 1- Murder read with the provisions of
section 51(1) and Part I of schedule 2, alternatively section 51(2)
and Part II of schedule
2 of the
Criminal Law Amendment Act 105 of
1997
.
(b)
Court 2 - Contravention of section 18(2)(a)
of the Riotous Assemblies Act 17 of 1956 – Conspiracy to commit
murder.
[12]
The State relied on the doctrine of common
purpose, in that the accused acted with common criminal intent when
committing the charges
he is currently facing.
[13]
The accused pleaded not guilty to the
charges preferred against him and tendered no plea explanation.
Analysis
[14]
The
prosecution must establish a prima facie case against the accused, as
opposed to the applicable test in criminal cases being
that the State
must prove its case beyond a reasonable doubt.
[7]
[15]
The State led evidence of five witnesses in
total. Sthembiso Sibanyoni and Christian Lunga Maphosa testified that
they were sitting
at the corner when they saw a white vehicle passing
with four occupants inside, and two alighted. The two walked behind
the deceased
until one shot him. Sibanyoni did not identify anyone.
Maphosa identified the accused through dock identification. It is
also important
to note that when he testified previously, he did not
identify the accused, as the case had started
de
novo
.
[16]
Neither
of them was close enough to give a positive identification of the
accused. As stated in the well-known case of
S
v Mthethwa
.
[8]
[17]
After the plea, section 220 admissions were
made and marked as Exhibit “A”, postmortem report as
Exhibit “B”,
photo album as Exhibit “C”,
section 212 statement by Warrant Officer Mashilo Elias Shadung as
Exhibit “D”.
Later, video footage was handed in as
Exhibit “E”.
[18]
They (Sibanyoni and Maphosa) also took the
number plates, which they gave to the police at a later stage. The
two police officers,
Lynette Soga and George Tebogo Mbedzi,
testified. They both confirmed that they were at the scene and, at a
later stage, viewed
video footage from a nearby house which had a
camera. At that point, they had the number plates, but the assailants
were not visible
on the footage. Basically, what they saw confirmed
the position of the two witnesses, but they could not identify the
accused positively
from the video footage. The same video footage was
played in court when the last State witness, Raputla Moloi,
testified.
[19]
From the video footage presented in court,
one cannot positively identify the accused.
[20]
The two officers who testified are the ones
who effected the arrest of the accused before the court. Upon his
arrest, nothing was
found in his possession.
[21]
Hearsay evidence was led. I won’t say
anything about it, as no witnesses were called to verify what was
said.
[22]
The
issue of credibility plays a very limited role but the evidence ought
to be ignored if it is of such a poor quality that no
reasonable
person could possibly accept it.
[9]
[23]
The State intended to call a section 204
witness, but they could not trace him. I understand he is the one who
was going to place
the accused at the scene or explain his
participation.
[24]
The State further informed the court that
they intended to lead evidence relating to a confession, but at a
later stage, I was informed
that they will not proceed as the chain
is incomplete, and the documents were not completed properly.
[25]
The video footage does not show the face of
the accused. Even though the vehicle was traced and found, it does
not belong to the
accused. The other occupants of the vehicle also
did not testify, one of whom could have been the section 204 witness.
So far,
nothing links the accused to the offences.
[26]
I am of the view that the absence of the
section 204 witness, the failure to lead the evidence of the
confession, and the video
footage not showing the face of the accused
destroyed the State’s case.
[27]
From the above, one could see that the
state did not succeed in proving that the accused was one of the
assailants on that day.
The state failed to present a prima facie
case that requires the accused to answer to, as a result, after
having considered all
the evidence and the submissions made by
counsel, I am of the view that this application must succeed.
Order
[28]
In light of the above, I make the following
order:
(a)
The application in terms of
section 174
of
the
Criminal Procedure Act succeeds
and the accused is discharged on
both counts.
MORE AJ
ACTING JUDGE OF THE
HIGH COURT
PRETORIA
Date of
Judgment
:18 March 2026
Appearances:
For
the State:
Adv
Khosa
Instructed
by:
Director
of Public Prosecutions
For
the accused:
Mr
Elias Thabang Paile
Instructed
by:
ET
Paile Attorneys
[1]
S
v Ngwenya and Others
[2022] ZAGPPHC 217
at
para 3.
[2]
[2001]
ZASCA 100
;
2001 (4) SA 1251
(SCA);
[2002] 2 All SA 107
(A) at paras
9-11.
[3]
Ngwenya
above n 1
at
para 5 and
Lubaxa
above
n 2.
[4]
Ngwenya
above
n 1
at
para 6.
[5]
Lubaxa
above
n 2
at
para 19. Also
see
S
v Agliotti
[2010] ZAGPJHC 129;
2011 (2) SACR 437
(GSJ) at para 280.
[6]
Agliotti
above n 5
at
para 257 and
R v
Shein
1925 AD
6.
[7]
Ngwenya
above
n 1
at
para 10 and
Rex
v Hepworth
1928 AD 265.
[8]
1972
(3) SA 766
(A) at 768A-C.
[9]
Agliotti
above
n 5
at
para 273.