IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)
Case no: 15/2014
THE STATE
versus
SHRIEN PRAKASH DEWANI
THE STATE’S PRINCIPAL SUBMISSIONS IN OPPOSING THE
SECTION 174 APPLICATION
A. INTRODUCTION
1. The accused is charged with the five offences (counts) listed in
the Indictment, namely:
1.1 Count 1 - Contravening Section 18(2)(A) of the Riotous
Assembly Act, No. 17 of 1956 - conspiracy to commit
kidnapping, robbery with aggravating circumstances and
murder;
1.2. Count 2 - kidnapping;
1.3. Count 3 - robbery with aggravating circumstances;
1.4 Count 4 - murder; and
1.5 Count 5 - obstructing the administration of justice.2. The State presented the evidence of 16 witnesses and closed its
case.
3. The accused now applies for his discharge in terms of section
174 of the Criminal Procedure Act*.
4, The State opposes the application.
B. THE LEGAL FRAMEWORK
5. The provisions of section 174 of the Criminal Procedure Act
reads:
‘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.’
6. The words ‘no evidence’ have been interpreted to mean no
evidence upon which a reasonable man (court), acting carefully,
may convict.
SEE: v Mpetha 1983 A 26: i
v Swartz and Another i (1) SACI 4 (W).
7. It should be emphasized that the test is not should a reasonable
man convict but may convict.
SEE: Du Toit et a/ - Commentary on the Criminal Procedure
Act at 22-37F
* Act 51 of 1977 as amended8. In arriving at a decision whether an accused person could or may
be discharged at the close of the state case it is accepted that
the credibility of the state witnesses should be taken into
account at this stage.
SEE: S v Mpetha and Others (supra)
9. In S v Mpetha (supra) Williamson J held at at 265E-G that
credibility would play only a very limited role and the evidence
ignored only if it was of such a poor quality that no reasonable
person could possibly accept it:
“However, it must be remembered that it is only a very
limited role that can be played by credibility at this
stage of the proceedings. If a witness gives evidence which is
relevant to the charges being considered by the Court then
that evidence can only be ignored if it is of such poor quality
that no reasonable person could possibly accept it. This would
really only be in the most exceptional case where the
credibility of a witness is so utterly destroyed that no
part of his material evidence can possibly be believed.
Before credibility can play a role at all it is a very high
degree of untrustworthiness that has to be shown. It
must not be overlooked that the triers of fact are entitled
“while rejecting one portion of the sworn testimony of a
witness, to accept another portion”. See R v Kumalo 1916
AD 480 at 484. Any lesser test than the very high one which,
in my judgment, is demanded would run counter to both
principle and the requirements of s 174.”
(Emphasis added)
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