10 of
the most important considerations for a successful application for discharge in terms of section 174 of tye criminal procedure act 51 of 1977
Include south African case law
1. Burden of proof: The applicant must demonstrate that there is no prima facie evidence against them and that the state's case is weak.
2. Absence of direct evidence: If there is no direct evidence linking the applicant to the alleged crime, it strengthens the case for discharge.
3. Lack of credible witnesses: If the state's witnesses lack credibility or their testimonies are inconsistent or contradictory, it weakens the state's case.
4. Inadmissible evidence: If the state relies on evidence that is inadmissible or obtained unlawfully, it may be a ground for discharge.
5. Reasonable doubt: If the court finds that there is a reasonable doubt as to the guilt of the accused, it may warrant a discharge.
6. Improper conduct by the prosecution: If the prosecution engages in misconduct, such as withholding evidence or intimidating witnesses, it may justify a discharge.
7. Failure to comply with procedure: If the prosecution fails to comply with procedural requirements, such as serving relevant documents within specified time frames, it may be a basis for discharge.
8. Alibi: If the accused can establish a solid alibi that places them elsewhere at the time of the alleged offense, it may be a strong ground for discharge.
9. Substantial delays: If there have been unjustifiable or excessively long delays in the proceedings, it may prejudice the accused and justify a discharge.
10. Prejudice to the accused: If continuation of the trial would result in unfair prejudice to the accused, such as due to health reasons or mental incapacity, it may warrant a discharge.
South African case law on section 174 of the Criminal Procedure Act includes the following:
1. S v Dube (2000): The court held that an application for discharge requires the court to consider the evidence presented by the prosecution and determine if there is sufficient evidence to put the accused on their defense.
2. S v Shafto (2008): The court stated that a discharge may be granted if the evidence against the accused is so unreliable or tenuous that no reasonable court could convict based on that evidence alone.
3. S v Jaffer (1988): The court held that the prosecution must put forward a prima facie case, which means evidence that, if accepted as true, could reasonably result in a conviction.
4. S v Mbele (1997): The court emphasized that in considering an application for discharge, the court must not weigh the evidence or consider the credibility of witnesses. It is only concerned with whether there is evidence upon which a reasonable court, acting carefully, may convict.
These cases highlight the importance of the considerations mentioned above and provide guidance on how courts have approached the application for discharge under section 174 of the Criminal Procedure Act in South Africa.