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. Substantial and compelling reasons: The court will consider whether there are substantial and compelling reasons to justify the discharge of the accused. This may include factors such as the lack of evidence or witnesses, improper conduct of the prosecution, or a material change in circumstances since the initiation of the proceedings.
2. Constitutional rights: The court will assess whether the accused's constitutional rights have been violated during the criminal proceedings. This may involve examining whether there have been unreasonable delays, infringements on the accused's right to a fair trial, or violations of other fundamental rights.
3. Double jeopardy: The court will consider whether the accused is being subjected to double jeopardy, meaning that they have already been tried or acquitted for the same offence. Section 174 aims to prevent the unnecessary and oppressive continuation of proceedings against an accused person.
4. Abuse of process: The court will examine whether there has been an abuse of the criminal justice process. This may involve assessing whether the prosecution has acted in bad faith, manipulated evidence, or conducted an unfair trial in order to secure a conviction.
5. Interests of justice: The court will weigh the interests of justice in determining whether to discharge the accused. This involves considering the overall fairness of continuing with the trial, taking into account factors such as the strength of the evidence, the impact on the accused, and the public interest in prosecuting the offence.
6. Right to be presumed innocent: The court will consider whether the continuation of the trial undermines the accused's right to be presumed innocent until proven guilty. If there is insufficient evidence to establish a prima facie case against the accused, their right to a fair trial may be compromised.
7. Prejudice to the accused: The court will assess whether the continuation of the trial would result in prejudice to the accused. This may include physical, emotional, financial, or reputational harm that outweighs the public interest in prosecuting the accused.
8. Appropriate remedy: The court will determine whether discharge is the appropriate remedy in the circumstances. Discharge may be granted if there is no basis for conviction or if the continuation of the trial would result in an unfair trial.
9. Precedent and case law: The court will consider relevant South African precedent and case law in interpreting and applying section 174. Previous court decisions may guide the court in assessing the merits of the discharge application.
10. Exercise of judicial discretion: The court will exercise its discretion in determining whether to grant the application for discharge. This involves considering all relevant factors and weighing the interests of justice in reaching a just and equitable decision.