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?
Date
2017
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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.
Description
Master of Laws in Advanced Criminal Justice. University of KwaZulu-Natal, Durban, 2018.