S v Phuravhatha and Others

• Jurisdiction: South Africa
• Judge: Etienne du Toit AJ
• Judgment Date: 10 August 1992
• Counsel: S J Renke for accused Nos 1, 2, 3, 4, 6, 7, 8 and 11 at the request of the Court J Botha for accused Nos 5, 9, 10, 13, 14 and 15 at the request of the Court M J Mushusha for accused No 12 S Ramaite for the State
• Hearing Date: 10 August 1992
• Court: Venda Supreme Court

Etienne du Toit AJ:

Fifteen accused are charged before me with murder and arson, in that upon or about 27 February 1990 and at or near Tshibuseni, E in the district of Vuwani, they unlawfully and intentionally killed one Musandiwa Ratshisani, an elderly Venda female, and secondly in that at the same place and on the same date they set on fire and damaged two huts, the immovable property of one Mudzhadzhi Mudzanani and of the deceased, Musandiwa Ratshisani.

F After the close of the State case, Mr Renke, for accused Nos 1-4, 6-8 and 11, applied for the discharge of accused Nos 1, 2 and 3. Mr Mushasha, for accused No 12, likewise applied for the discharge of his client under s 174 of the Criminal Procedure Act 51 of 1977. Mr Botha reserved the right to apply at a later stage on behalf of accused No 13 for his discharge under the same section, after inviting me to give judgment in respect of his attitude that an application for the discharge of an G accused person can be brought not only at the stage after the closing of the State case, but also at a later stage. He submitted that he should be entitled to bring such application for the discharge of accused No 13 after the closing of the defence case of accused No 12. I indicated that I will give judgment on this aspect since it seems to me to be in the interests of justice that, if I decide that the right to apply for a discharge under s 174 can only be exercised after the closing of the State H case, Mr Botha should be in a position to bring such application immediately (that is now, after the closing of the State case).

The section

Section 174 of Act 51 of 1977 originated in English law. It reads as follows:

'If, at the close of the case for the prosecution at any trial, the I 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.'

The history of s 174

The predecessors of the section had as prime concern and main purpose judicial control over the jury. In a criminal matter the presiding officer J would

Etienne Du Toit AJ

A refuse to allow the jury to consider the case unless there was in the opinion of the presiding officer evidence upon which reasonable jurors could convict. In the absence of such evidence, the presiding officer normally directed the jury that they were to acquit the accused person as a matter of law. The learned authors Hoffmann and Zeffertt in The South African Law of Evidence 4th ed at 504 describe the origin of the predecessors to s 174 as follows:

B 'This practice (to direct the jury as a matter of law to acquit the accused) was intended to prevent the jury from reaching verdicts which the Court considered would be perverse. Its effect is that, in addition to the onus of proving that on all the evidence the accused is guilty beyond reasonable doubt, the prosecution must surmount the preliminary hurdle of adducing evidence upon which reasonable men, if they believed C it, might convict. If they do not satisfy this preliminary burden, the accused is discharged without being called upon to defend himself at all. This is what Wigmore has called "the duty of passing the judge", ie getting the case to the jury. It is more usually called "the evidential burden".' D

The history of s 174 of Act 51 of 1977 has also been carefully considered in S v Cooper and Others 1976 (2) SA 875 (T) at 888D-H.

First predecessor: s 221(3) of 1917 Act

Section 221(3) of the Criminal Procedure and Evidence Act 31 of 1917 read as follows:

'If, at the close of the case for the prosecution, the court E considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge or any other offence of which he might be convicted thereon, it may then, in the case of a trial by a jury, direct the jury to return a verdict of not guilty, and upon such a direction the jury shall be deemed to have returned such verdict, and the Judge shall thereupon enter such a verdict. In any F trial without the jury the court may itself return such a verdict.'

The last sentence 'in any trial without the jury the court may itself return such a verdict', is of course the actual predecessor to the present s 174 of Act 51 of 1977, affording the presiding officer the discretion to discharge an accused person after the closing of the State case under certain prescribed circumstances. G

'At the close of the case for the prosecution'

The first matter that falls to be decided is the interpretation to be given to the phrase 'at the close of the case for the prosecution at any trial' in s 174 of Act 51 of 1977.

The Legislature, in s 174, in my view quite clearly indicated that the H discretion to discharge is available to the presiding officer at one stage of a criminal trial only and that is at the close of the case for the prosecution. Mr Botha, appearing for accused No 13, as I have indicated above, advanced the argument that the phrase referred to should be interpreted liberally, and in favour of the accused person. I agree. He furthermore submitted that the phrase 'at the close of the case for the I prosecution at any trial' should be interpreted broadly so as to enable an accused person to bring his application for his discharge after the closing of the defence case for a co-accused preceding the accused or applicant in chronological order. Mr Botha argued that a single accused should not be in a more advantageous position than an accused charged in a trial during which co-accused are being jointly charged.

He has also submitted that one of the grounds which may lead to a refusal to discharge the accused, namely the possibility of co-accused J implication, may be

Etienne Du Toit AJ

A absent at the stage of the closing of the case for the co-accused preceding the applicant. It may at this stage appear clearly from the facts that there is no such possibility, the argument ran, placing the applicant in a more favourable position vis-à-vis his application for a discharge.

I am of the view, however, that the argument advanced by Mr Botha cannot be accepted. A piecemeal process of adjudication is undesirable and the B more so in criminal matters. I am of the opinion that there are cogent and practical reasons why the clear intention of the Legislature points in the opposite direction and should be followed. Act 51 of 1977 in my view does not make provision for the discharge of an accused person at any stage of the trial other than immediately after the closing of the State case and also after completion of the proceedings in respect of the merits of the matter. C

(In my opinion there is only one exception to this: s 6 of Act 51 of 1977 provides for the stopping of a prosecution by the Attorney-General or a person authorised thereto by the Attorney-General. In the event of such a stopping of the prosecution, the Court is obliged to acquit the accused and would normally in practice do so immediately at any stage during the trial.)

D I therefore find that the moment a defence case is opened and evidence is led, a Court would no longer be vested with the discretion envisaged by s 174 to consider the application of an accused person for his discharge under that section. The application for a discharge in terms of s 174 by multiple accused must therefore in my view be brought immediately after the closing of the State case, and in chronological sequence, unless there E are good reasons advanced why chronological sequence should not apply.

I was also referred by Mr Ramaite, for the State, to a similar view held by the learned authors Lansdown and Campbell in SA Criminal Law and Procedure vol 5 at 517. They do not offer authority for their view but I hold the view to be correct. Mr Botha will therefore have to consider whether he would want to bring, on behalf of accused No 13, an application F for the discharge of his client immediately after this judgment, and before evidence is led on behalf of the defence.

'No evidence'

It is necessary for me to briefly examine at this stage the effect of G the words 'no evidence' as contained in s 174 of Act 51 of 1977. The words 'no evidence' have been interpreted to mean no evidence upon which a reasonable man, acting carefully, may convict. See R v Shein 1925 AD 6; R v Herholdt and Others (3) 1956 (2) SA 722 (W); S v Heller and Another (2) 1964 (1) SA 524 (W) at 541G-H; S v Bouwer 1964 (3) SA 800 (O); S v Cooper H and Others (supra at 888-90); S v Khanyapa 1979 (1) SA 824 (A) at 838 and S v Mpetha and Others 1983 (4) SA 262 (C) at 263H.

The test is therefore whether a reasonable man, acting carefully, may convict at the end of the case and not that he should convict Gascoyne v Paul and Hunter 1917 TPD 170; Supreme Service Station (1969) (Pvt) (Ltd) v Fox and Goodridge (Pvt) Ltd 1971 (4) SA 90 (RA).

I It is quite clear from the section itself, as well as the authorities, that the section affords a discretion. The discretion, as was submitted by all three counsel, is to be exercised judicially. In my view there is no room for an approach on the basis that a duty to discharge or a duty to refuse a discharge arises. The discretion is to be exercised judicially as I have said, ie in a balanced way weighing all relevant factors, including the interests of criminal justice, the community and the accused person or J persons.

Etienne Du Toit AJ

R v Kritzinger and Others (Roper J) A

The predecessor to s 174 of Act 51 of 1977 (namely s 221(3) of the 1917 Act) was first considered at length by Roper J in R v Kritzinger and Others 1952 (2) SA 401 (W). In view of certain findings which I intend making, it is necessary to refer in some detail to the approach adopted by Roper J in R v Kritzinger and Others (supra at 402E-403A):

B 'In his argument on behalf of the...