Section 174 of the Criminal Procedure Act : is it time for its abolition?

• DOI: 10.10520/EJC-1406a1d82c
• Author: Managay Reddy
• Record Number: dejure_v51_n2_a5
• Published date: 01 December 2018
• Pages: 251-270
• Date: 01 December 2018

251

Section 174 of the Criminal Procedure Act:

Is it time for its abolition?

Managay Reddy

School of Law, University of Kwazulu-Natal

OPSOMMING

Artikel 174 prosedure van die Strafproseswet

Alhoewel nuttig, staan artikel 174 prosedure van die Strafproseswet die

gevaar om misbruik te word as ’n aanspreeklikheids-

vermydingsmeganisme, ten koste van die wyer belang van geregtigheid.

Dit kan geargumenteer word dat daar reeds gewysdes is waarin hierdie

gevaar verwerklik is: Die hoë-profiel saak S v Dewani, waarin die artikel

174 prosedure suksesvol ingespan om die drie beskuldigdes se ontslag te

bewerkstellig, kan dien as voorbeeld. Hierdie artikel spoor die oorsprong

van artikel 174 van die Strafproseswet in Suid-Afrikaanse reg na, en toon

aan dat die omstandighede wat in die verlede aanleiding gegee het tot die

skep van artikel 174, nie meer teenwoordig is nie. In die lig van hierdie

afwesigheid van geskiedkundige regverdigingsfaktore, en bedag op die

gebrek aan sekerheid in die regterlike uitoefening van die ontslag-toets,

assesseer hierdie artikel die nut, nodigheid, en gepastheid van die artikel

174 prosedure in huidige Suid-Afrikaanse reg. Ten einde emuleer-waardige

beste praktyk te vind, word Kanadese and Engelse benaderings tot die

ontslag-prosedure onder die loep geneem.

1Introduction

Amongst the litany of fair trial rights that exist in South African criminal

and procedural law is the presumption of innocence. This right provides

that an accused person is presumed to be innocent until proven guilty.

The presumption of innocence obliges the state to show guilt beyond a

reasonable doubt in order for an accused to be convicted. Therefore, for

a conviction to ensue the state is required, at the close of its case, to have

rebutted the presumption of innocence by leading sufficient evidence

against the accused, upon which a reasonable person could convict.

A failure by the state to mount sufficient evidence for a conviction at

the close of its case, gifts the accused the opportunity to escape having

to be put on their defence. This gift takes the form of a procedural device

in the Criminal Procedure Act,1 namely section 174, which provides:

“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.”

If the application of the provisions of section 174 favour the accused they

are discharged from prosecution without having to testify – but with the

1 Act 51 of 1977 (hereafter the CPA).

How to cite: Reddy ‘Section 174 of the Criminal Procedure Act: Is it time for its abolition?’

2018 De Jure 251-270

http://dx.doi.org/10.17159/2225-7160/2018/v51n2a4

252 2018 De Jure

same advantages as would have accrued if the trial had run its course and

if they had been acquitted.

The article traces the origin and application of section 174 of the

Criminal Procedure Act in South African law and shows that the

circumstances which warranted the adoption of the section 174

procedure are no longer present. Therefore, in light of the absence of the

historical factors justifying the procedure, and mindful of the lack of

certainty in the judicial application of the test for a discharge, an

assessment is conducted of the utility, need and appropriateness of the

procedure in current South African law. The Canadian and English

approaches to the procedure are scrutinised briefly, with a view to

understanding its application in these jurisdictions, and for guidance on

best practices worthy of emulation.

The section 174 procedure, although useful, risks morphing into a

process to avoid accountability – so compromising the broader interests

of justice. Arguably, there are cases where this risk has materialised: In S

v Dewani,2 it was successfully employed by a high-profile defence team

to see the three accused in a murder trial acquitted. The judgment and

order of the court drew harsh media and public criticism, which, it is

submitted, may not have been wholly unjustified from a legal

perspective. The argument may be warranted that the court in Dewani

deviated so drastically from the parameters of the test for a discharge in

terms of section 174 of the CPA, that a miscarriage of justice occurred in

that an accused person against whom a prima facie case had been made

was acquitted without having been put his defence.

The decision in Dewani has further lent credence to the perception that

justice through the courts exists only for the wealthy. It is commonplace

that the public has an interest in the proper trial of accused persons.

Acknowledgement of this is evident in South African legislation,

jurisprudence and policy which recognise the interests of victims at the

trial stage. Legal decision-making and conclusions which compromise

these interests pose problems in the context of a system aimed at serving

such interests. This is particularly so when these decisions and

conclusions are founded on an over-zealous approach to the application

of existing principles.

At the very least, therefore, there is a need to clarify the parameters of

the test and the judicial inquiry that needs to occur when a section 174

application is made. Furthermore, although section 174 remains a

valuable tool in the fair trial rights’ arsenal, South African courts seem to

have misconstrued what is required of the state when it closes its case,

and of the judges when they assess whether evidence exists at this stage.

Applications of the test inherent in section 174 have been inconsistent

and have resulted in the exploitation of legal loopholes which then

triumph over the goals of the criminal justice system.

2 [2014] JOL 32655 (WCC).