IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF JOHANNESBURG

HELD AT BOOYSENS

CASE NUMBER: …
In the matter between:

THE STATE

And

…. Accused
(Identity Number: …)
__________________________________________________________________________________

SHORT HEADS OF ARGUMENT

IN SUPORT OF APPLICATION FOR DISCHARGE – SECTION 174

WHEREAS the state closed its case on 9 September 2022 the accused requests the
Honourable Court to be discharged in terms of Section 174 of the Criminal Procedure
Act 51 of 1977, (“CPA”).

1. THE ACCUSED CHARGE AND DEFENCE

1.1. The Accused’s defence on the charge of common assault on or about ….,
against the complainant, his wife, ….., is that he never unlawfully and
intentionally applied force to the complainant which caused actual force, or
which inspired the belief that force will be applied to the complainant.

1.2. The Accused attorney of record indicated in his opening statement that he will
call two witnesses, their major son’s and that one, …. was a witness to the
incident and further that the complainant only opened up the criminal case out
of maliciousness.

2. EVIDENCE THAT THE ACCUSED COMMITTED THE OFFENCE

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2.1. The State called a single witness, being the wife of the accused and it is
common cause that the parties are going through an acrimonious divorce.

2.2. The State did not hand in any evidence of the alleged assault or forensic dated
photographs to support the claim that the complainant incurred any injuries.

2.3. The State did not hand in any J88 Report on a Medico-Legal Examination by a
Health Care Practitioner. The witness only testified that she attended to
medical care on or about …., almost 7 weeks after the alleged incident.

2.4. The State did not provide any other documentary evidence or Section 212
Statements by any other witnesses.

3. SUMMARY OF RELEVANT EVIDENCE:

3.1. WITNESS CALLED FOR STATE: ….

Testified that:

3.1.1. On …. the accused showed her his phone with conversations and
pictures of a third party, a woman, whom the accused met in Akeso
clinic and on … after 01h00, she took the accused phone while he was
sleeping and she locked herself up in the children’s bathroom and the
accused woke up and was screaming and pushed open the door and
broke the door open and thereafter assaulted her while he was trying
to take his phone.

3.1.2. The accused is right-handed but cannot recall with which hand he
assaulted her after he took his phone.

3.1.3. The children of the parties were not awake at that time, but that the
children’s room was very close to the children’s bathroom, about 2
meters.
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3.1.4. She did not phone anyone but left the house and went to the accused
sister immediately after the incident.

3.1.5. The witness did not see the children in the bathroom but saw that
Leshwin was awake when she left, and that it is possible that the
children could hear the argument and that they could have seen if the
door was pushed open.

3.1.6. She did not go to the doctor the next day. She however went to the
doctor on the same day when she opened the case at the Police
station, which is about 7 weeks later on …..

3.1.7. Admitted that the accused applied for a domestic violence protection
order on or about … and that she also applied for domestic violence
protection order on the ….

3.1.8. Admitted that the accused also instituted divorce proceedings on the
…., but that she only became aware of the divorce a month later,
during that week of April when she opened the criminal case.

3.1.9. Admitted that the accused opened up criminal charges against her
sister’s husband, her brother-in-law (which the accused opened on ..)
and the that the family became aware of the charges on or about ….,
a day before she opened up the case of assault.

3.1.10. Admitted that she wanted to withdraw the case against the accused
prior to the day of trial.

3.2. It is submitted that the complainant is a single witness, and her evidence is not
credible enough to prove the charges against the accused.

3.3. Further, the defence case that was put to the witness differs substantially from
that of the State.
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4. THE ONUS OF THE ISSUE AND LEGAL TEST:

IT IS TRITE THAT: If the State evidence is not sufficient for a reasonable man to
convict upon the court has a duty to discharge.

4.1. S v SHUPING AND OTHERS [1983] 3 ALL SA 148 (B) (9 JULY 1982)

Hiemstra CJ, summed up the legal position governed by Section 174:

“Normally the position is quite simple. If there is evidence 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).

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 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.”

4.2. S v Lubaxa [2002] 2 All SA 107 (A) (25 SEPTEMBER 2001)

The Court examined Section 174 of the Criminal Procedure Act 51 of 1977 ("the Act")
and Harms, Scott, Mpati JJA and Conradie AJA concurred in the judgment of Nugent
AJA in that:
“This section allows a court to find an accused not guilty at the close of the State's
case, if the court is of the opinion that there is no evidence upon which a reasonable
court might convict.

It follows therefore, that if there is evidence upon which a reasonable court may
convict, then the accused cannot be discharged, and the trial must continue into the
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defence case. It is clear from the construction of Section 174 of the Act that the court
possesses a discretion.

The Court had regard to the test referred to in S v Shuping 1983 (2) SA 119 (B), which
involved a two pronged enquiry when dealing with Section 174 applications. The first
leg of the enquiry considers whether there is evidence upon which a reasonable man
might convict and the second leg asks whether there is a reasonable possibility that
the defence case may supplement the State's case. If the answer is in the affirmative
to either of these questions, then the accused is not discharged.”

4.3. No evidence upon which a reasonable man may convict

4.3.1. In S v Lekgotoane and Another (CC48/2019) [2019] ZAGPPHC 586

(14 November 2019) the court held that:

“[5] It is well established that “no evidence” does not mean no evidence at all,
but rather no evidence on which a reasonable court, acting carefully, might
convict.

[6] The question whether a court should grant a discharge at this stage is one
which entails a discretion by the trial court. It is a discretion which must,
self-evidently, be exercised judicially…

[13] To therefore summarise the legal position regarding applications in terms

of section 174:

(a) An accused person is entitled to be discharged at the close of the case for
the prosecution if there is no possibility of a conviction other than if he
enters the witness box and incriminates himself;

(b) In deciding whether an accused person is entitled to be discharged at the

close of the State’s case, the court may take into account the credibility of
the State witnesses, even if only to a limited extent;
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(c) Where the evidence of the State witnesses implicating the accused is of
such poor quality that it cannot safely relied upon, and there is accordingly
no credible evidence on record upon which a court, acting carefully, may
convict, an application for discharge should be granted.”

4.3.2. See Reddi, M, Ramji, B: "Section 174 of the Criminal Procedure

Act: Is it time for its abolition? " (Vol 2) [2018] DEJURE 18 at 251

“This attitude of the English criminal courts encompasses the very essence of
what is being submitted – that the judge’s role in assessing a section 174
application is not to assess credibility. This was most explicitly stated by Lord
Devlin when he said: “[T]here is in truth a fundamental difference between the
question whether there is any evidence and the question whether there is
enough evidence. I can best illustrate the difference by an analogy. Whether a
rope will bear a certain weight and take a certain strain is a question that
practical men often have to determine by using their judgment based on their
experience. But they based their judgment on the assumption that the rope is
what it seems to the eye to be and that it has no concealed defects. It is the
business of the manufacturer of the rope to test it, strand by strand if necessary,
before he sends it out to see that it has no flaw; that is a job for an expert. It is
the business of the judge as the expert who has a mind trained to make
examinations of the sort to test the chain of evidence for the weak links before
he sends it out to the jury; in other words, it is for him to ascertain whether it
has any reliable strength at all and then for the jury to determine how strong it
is …”.
4.4. Defence case may supplement the State’s case

4.4.1. In S v Lekgotoane and Another (CC48/2019) [2019] ZAGPPHC 586

(14 November 2019) the court held that:
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“[9] The second part of the latter test did not always find favour. In S v
Phuravhatha & Others, 1992 (2) SACR 544 (V), Du Toit, AJ stated the
following:

“The presumption in favour of innocence, the fact that the onus rests on the
State, as well as the dictates of justice in my view will normally require an
exercise of the discretion under s 174 in favour of an accused person where
the State case is virtually and basically non-existent. Strengthening or
supplementation of a non-existent State case is a physical impossibility.”

4.4.2. In S v Lubaxa [2002] 2 All SA 107 (A) (25 SEPTEMBER 2001) the
court held that:

“[18] I have no doubt that an accused person (whether or not he is represented)

is entitled to be discharged at the close of the case for the prosecution if
there is no possibility of a conviction other than if he enters the witness
box and incriminates himself. The failure to discharge an accused in
those circumstances, if necessary mero motu, is in my view a breach of
the rights that are guaranteed by the Constitution and will ordinarily vitiate
a conviction based exclusively on his self-incriminatory evidence.”

“[19] The right to be discharged at that stage of the trial does not necessarily
arise, in my view, from considerations relating to the burden of proof (or
its concomitant, the presumption of innocence) or the right of silence or
the right not to testify, but arguably from a consideration that is of more
general application. Clearly a person ought not to be prosecuted in the
absence of a minimum of evidence upon which he might be convicted,
merely in the expectation that at some stage he might incriminate himself.
That is recognised by the common law principle that there should be
"reasonable and probable" cause to believe that the accused is guilty of
an offence before a prosecution is initiated (Beckenstrater v Rottcher and
Theunissen 1955 (1) SA 129 (A) at 135CE), and the constitutional
protection afforded to dignity and personal freedom (section 10 a n d
section 12) seems to reinforce it. It ought to follow that if a prosecution is
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not to be commenced without that minimum of evidence, so too should it

cease when the evidence finally falls below that threshold. That will pre-
eminently be so where the prosecution has exhausted the evidence and
a conviction is no longer possible except by self-incrimination. A fair trial,
in my view, would at that stage be stopped, for it threatens thereafter to
infringe other constitutional rights protected by section 10 and section 12.”

5. OTHER FACTORS/EVIDENCE to consider for discharge and CONCLUSION

5.1. At the closing of the state’s case to draw a legal conclusion on the existence of
evidence required for a particular offence, certain factors need to be taking into
account and it is humbly submitted that the following should be considered:

5.1.1. The relationship between the parties. The parties are husband and wife
and is going through a divorce and has a history of arguing and the
circumstances that lead to the complainant to open up the criminal
charges only 7 weeks after the incident.

5.1.2. The location of the incident and possible witnesses. The incident took
place at the parties home in the children’s bathroom that is less than 2
meters away from bathroom and the defence put it to the witness that
one of the children Leshwin witnessed the incident.

5.1.3. The nature, severity and persistence of the attack. The witness testified
that the accused assaulted her by pushing her to get his phone and
continued to assault her after he took the phone by slapping her in the
face and on her chest. The defence put it to the witness that the
accused simply grabbed his phone from the complainant and both
parties were simply pulling and pushing to get and hold on to the phone.

5.1.4. The unlawfull action of the accused and his intention during the alleged
assault and whether his action / applying alleged force was on that falls
under the de minimis rule.
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5.1.5. Did the state on the evidence provided prove all the elements of the
alleged offence committed.

THEREFORE, In view of all of the above it is the defence’s submission that the
Honourable Court should give a verdict of discharge in terms of Section 174 of the
CPA.

DATED AT JOHANNESBURG ON THIS THE … DAY OF …..

____________________________
ANDERSON-KRIEL ATTORNEYS
Attorneys for the Accused
JHB LAW CHAMBERS
FIRST FLOOR, OFFICE LEVEL
BRAM FISCHER CENTRE
93 BRAM FISHER Dr cnr. GEORGE
FERNDALE, RANDBURG
Tel: (011) 326 1066 / 1829
Cell: 084 584 7145
Fax: (086) 659 9050
E-mail: geraldine@anderson-kriel.co.za
REF: GMAK/ne/F.M2248

TO: THE CLERK OF THE HONOURABLE COURT

BOOYSENS

AND TO: THE STATE PROSECUTOR

COURT 3 ________________________
BOOYSENS Received copy hereof on the
_____ day of …...