Recent Case: Law of evidence

• Jurisdiction: South Africa
• Citation: (2018) 31 SACJ 142
• Date: 24 May 2019
• Author: Jo-Marí Visser
• Pages: 142-154
• Published date: 24 May 2019

Law of evidence

JO-MARÍ VISSER

University of the Free State

1 Discharge of accused at end of prosecution’s case

In the case of Director of Public Prose cutions, Gauteng Local Division ,

Johannesburg v Regional Magistrate, Krugersdor p 2018 (1) SACR 93

(GJ), the Director of Public Prosecutions applied for a review of the

rst respondent’s (the trial magistrate’s) decision to discharge the

second respondent (the accused) in terms of s 174 of the Criminal

Procedure Act 51 of 1977, on a charge of murder.

Instead of initiating appeal procedures, t he legal representative of

the Director of Public Prosecutions relied on s 22(1)(c) of the Superior

Courts Act 10 of 2013 to apply for a review of the trial court’s nding,

claiming that the r st respondent’s decision to grant immediate

discharge of the accused resulted in g ross irregularit y and trial-related

prejudice to the state (at paras [1]-[2]). The Johannesburg high court

was therefore called upon to decide whether the rst respondent did,

in fact, err in his deci sion to grant the discharge, and – if thi s was the

case – whether it amounted to a gross irregu larity that resulted in a

miscarriage of just ice (at paras [2], [8]).

In the trial cour t, the accused was charged with murder, in that

he had stabbed the deceased to death with a k nife. The accused

pleaded not guilty and offered no plea explanation. He made certai n

admissions pertai ning to the moving of the body of the deceased and

the related chain of evidence, and the court accepted into evidence the

post-mortem report con rming death by stabbing, chain-of- evidence

statements and the photo album of the deceased’s body (at para [3]).

During the trial it was a lso held to be common cause that a knife had

been conscated from the accused person on t he day in question (at

par a [5] ).

At the trial, the prosecution ca lled two witnesses (at paras [4]-[5]).

The rst witness, ostensibly a neighbour livi ng across from the

accused, testied that on the speci c day the deceased and accused

had been at his house drink ing, but that he had asked them to leave

when they engaged in increasingly disruptive ghting. They bot h then

returned to the accused’s house. While the w itness did not see the

actual stabbing, he did see the deceased r un from the accused’s house

a short while later. He witnessed the deceased fall to the ground, t hen

rise again, clutching the left side of hi s chest, before running away.

142 SACJ . (2018) 1

(2018) 31 SACJ 142

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