Section 174 of the Criminal Procedure Act 51 of 1977 : does the interests of justice and the outcome in S v Dewani herald that it is time to eject this provision from our law?

Abstract

Section 174 of the Criminal Procedure Act 51 of 1977 encompasses the right of an accused to be discharged from the offence he has allegedly committed where, at the close of the State’s case, there is no evidence on which the court may draw the accused to the charge. The section and its forerunners have dwelled in South African law for some time. In the first instance, the discharge provision was used as an instrument to prevent the jury from reaching perverse decisions. Nevertheless, despite the abolition of the jury system of adjudication in South Africa in 1969, there is no doubt that the section ensures that the accused’s fair trial rights are fulfilled. However, though discharge may seem like a straightforward task for a judge who, at the close of the State’s case, has a sense of the strength of the allegations against the accused, it is far from this. Over the years, South African courts and scholars have grappled with the interpretation of the section, more especially with the words ‘no evidence’. Furthermore, there have been countless debates on the standard of evidence and the role ‘credibility’ should play at the discharge stage of the proceedings. As a result, there is evidence, fairly recently from the outcome in S v Dewani [2014] JOL 32655 (WCC), which suggests that courts do not fully understand and appreciate the extent of their role in deciding to discharge an accused. Thus, the aim of this dissertation is to critically analyse s 174 of the Criminal Procedure Act 51 of 1977 in respect of its interpretation, its history and its operation in another jurisdiction, and produce a meaningful interpretation which would restore purpose to the section in South Africa. Furthermore, the case of S v Dewani will be thoroughly analysed as it is a recent application of s 174 of the Criminal Procedure Act 51 of 1977.