S v Shuping and Others
| Jurisdiction | South Africa |
| Judge | Hiemstra CJ |
| Judgment Date | 09 July 1982 |
| Hearing Date | 09 July 1982 |
| Court | Bophuthatswana Supreme Court |
G Hiemstra CJ:
The five accused were charged with the theft of a radio, in the evidence called a "radio-tape", which was fitted into a car. Its value was given as R270.
At the close of the State case, and before the defence case was closed, the court discharged all five accused. The case is H therefore not automatically reviewable, but the prosecutor feels strongly that the accused persons should not have been discharged at that stage. The magistrate, for that reason, ordered that the record be sent up for review in order to obtain guidance from the Supreme Court. This is an unusual course to follow, because normally this Court does not write judgments purely for the sake of giving legal advice. Nevertheless, because the administration of justice in the lower courts is in the process
Hiemstra CJ
of being built up, this Court is anxious to give guidance wherever needed.
The legal position at the close of the State case, when the accused has not closed his case, is governed by s 174 of the A Criminal Procedure Act 51 of 1977 which reads:
"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 or any offence of which he may be convicted on the charge, it may return a verdict of not guilty."
Normally the position is quite simple. If there is evidence B from the prosecution upon which "a reasonable man might convict", there will be no discharge (S v Heller and Another (2) 1964 (1) SA 524 (W) at 541G; R v Herholdt and Others (3) 1956 (2) SA 722 (W)). The expression "no evidence" must be understood as meaning "insufficient evidence for a reasonable man to convict upon" (S v Khanyapa 1979 (1) SA 824 (A) at 838F).
C But the matter does not end there. If the State evidence is not sufficient for a reasonable man to convict upon, is the court under a duty to discharge? The Natal Provincial Division of the Supreme Court of South Africa said yes in R v Mall and Others (1) 1960 (2) SA 340 (N). It was regarded to be unfair to D put a man on his defence, in the expectation that evidence might be supplied by a co-accused or that he would make admissions sufficient for a conviction. If the State does not have enough evidence, the accused should be discharged, was the conclusion. At the other end of the spectrum stood R v Kritzinger 1952 (2) SA 401 (W), in which ROPER J said at 406:
"It seems to me that the...
To continue reading
Request your trial
-
S v Lubaxa
...to S v Peta 1982 (4) SA 863 (O): approved S v Phuravhatha and Others 1992 (2) SACR 544 (V): referred to S v Shuping and Others 1983 (2) SA 119 (B): not followed in part F S v Zulu 1990 (1) SA 655 (T): S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): referred ......
-
S v Agliotti
...v Director of Public Prosecutions, Western Cape, and Others 2009 (1) SACR 540 (C): dictum at 550d applied S v Shuping and Others 1983 (2) SA 119 (B): not followed D S v Sibuyi 1993 (1) SACR 235 (A): dictum at 249e S v Swartz and Another 2001 (1) SACR 334 (W): considered S v Zuma 2006 (2) SA......
-
S v Becket
...deficiency remedied by the subsequent sworn evidence of accused? Mr Webster, on this point, referred me to S v Shuping and B Others 1983 (2) SA 119 (B) where the list for a discharge was stated as follows at 120 (last line) - 121A - Mr Webster's comment being expressed in the last three 'At......
-
2005 index
...386S v Shiburi 2004 (2) SACR 314 (W) ........................................... 108; 121; 357–359S v Shuping 1983 (2) SA 119 (B) ............................................................. 291–292S v Sibeko 1995 (1) SACR 186 (W) .......................................................... ......
-
S v Lubaxa
...to S v Peta 1982 (4) SA 863 (O): approved S v Phuravhatha and Others 1992 (2) SACR 544 (V): referred to S v Shuping and Others 1983 (2) SA 119 (B): not followed in part F S v Zulu 1990 (1) SA 655 (T): S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): referred ......
-
S v Agliotti
...v Director of Public Prosecutions, Western Cape, and Others 2009 (1) SACR 540 (C): dictum at 550d applied S v Shuping and Others 1983 (2) SA 119 (B): not followed D S v Sibuyi 1993 (1) SACR 235 (A): dictum at 249e S v Swartz and Another 2001 (1) SACR 334 (W): considered S v Zuma 2006 (2) SA......
-
S v Becket
...deficiency remedied by the subsequent sworn evidence of accused? Mr Webster, on this point, referred me to S v Shuping and B Others 1983 (2) SA 119 (B) where the list for a discharge was stated as follows at 120 (last line) - 121A - Mr Webster's comment being expressed in the last three 'At......
-
S v Lubaxa
...to S v Peta 1982 (4) SA 863 (O): approved S v Phuravhatha and Others 1992 (2) SACR 544 (V): referred to S v Shuping and Others 1983 (2) SA 119 (B): not followed in part F S v Zulu 1990 (1) SA 655 (T): S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): referred ......
-
2005 index
...386S v Shiburi 2004 (2) SACR 314 (W) ........................................... 108; 121; 357–359S v Shuping 1983 (2) SA 119 (B) ............................................................. 291–292S v Sibeko 1995 (1) SACR 186 (W) .......................................................... ......
-
Section 174 of the Criminal Procedure Act : is it time for its abolition?
...S vShuping 1983 (2) SA 119 (B); S v Phuravhatha 1992 (2) SACR 544 (V); S vLubaxa 2001 (2) SACR 703 (SCA).15 2001 (2) SACR 703 (SCA).16 1983 (2) SA 119 (B).17 Shein supra. 18 Shuping 148.19 Shuping 256 2018 De Jure174 applications. There have been several rights-based critiques of theShuping......
-
The Mushwana Report and prosecution policy
...against the applicant would not be suffi cient for a jury properly to convict him’.43 1989 (3) SA 484 (C).44 Supra (n43) 486.45 1983 (2) SA 119 (B).46 A St Q Skeen, ‘The decision to discharge an accused at the conclusion of the State case: A critical analysis’, (1985) 102 SALJ 286; H Rudol......
-
S v Lubaxa
...to S v Peta 1982 (4) SA 863 (O): approved S v Phuravhatha and Others 1992 (2) SACR 544 (V): referred to S v Shuping and Others 1983 (2) SA 119 (B): not followed in part F S v Zulu 1990 (1) SA 655 (T): S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): referred ......
-
S v Agliotti
...v Director of Public Prosecutions, Western Cape, and Others 2009 (1) SACR 540 (C): dictum at 550d applied S v Shuping and Others 1983 (2) SA 119 (B): not followed D S v Sibuyi 1993 (1) SACR 235 (A): dictum at 249e S v Swartz and Another 2001 (1) SACR 334 (W): considered S v Zuma 2006 (2) SA......
-
S v Becket
...deficiency remedied by the subsequent sworn evidence of accused? Mr Webster, on this point, referred me to S v Shuping and B Others 1983 (2) SA 119 (B) where the list for a discharge was stated as follows at 120 (last line) - 121A - Mr Webster's comment being expressed in the last three 'At......
-
2005 index
...386S v Shiburi 2004 (2) SACR 314 (W) ........................................... 108; 121; 357–359S v Shuping 1983 (2) SA 119 (B) ............................................................. 291–292S v Sibeko 1995 (1) SACR 186 (W) .......................................................... ......