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 in the answer.
1) The constitutionality of Section 174: One of the primary considerations for a successful application for discharge under Section 174 of the Criminal Procedure Act is the constitutionality of the provision itself. It is important to argue that Section 174 does not infringe upon the accused's right to a fair trial and access to justice. In the case of S v Manga, the Constitutional Court held that Section 174 does not violate the right to a fair trial as long as it is applied correctly.
2) Legal representation: It is crucial to emphasize the importance of proper legal representation during the discharge application. The accused must have competent legal counsel who can present their arguments effectively. In the case of S v Mulaudzi, the court highlighted the need for effective legal representation to ensure a fair trial for the accused.
3) Burden of proof: Section 174 places the burden of proof on the accused to prove their innocence. It is important to argue that this burden should be discharged on a balance of probabilities rather than beyond a reasonable doubt. In the case of S v Ndaba, the court held that the accused should only be required to establish a reasonable possibility of innocence to succeed in an application for discharge.
4) Sufficiency of evidence: The court must consider whether the evidence presented by the prosecution is sufficient to establish a prima facie case against the accused. It is crucial to argue that the evidence is insufficient to support a conviction. In the case of S v Mthimkulu, the court emphasized that the evidence must at least raise a reasonable suspicion of guilt before the accused can be called upon to defend themselves.
5) Confirmatory evidence: The court should consider whether there is corroborative or confirmatory evidence to support the prosecution's case. It is important to argue that the absence of such evidence weakens the case against the accused. In the case of S v Ditta, the court held that the failure to produce confirmatory evidence can cast doubt on the reliability of the prosecution's case.
6) Credibility of witnesses: The credibility of the prosecution's witnesses should be closely scrutinized. It is crucial to argue that the prosecution's witnesses are unreliable or lack credibility. In the case of S v Moipolai, the court held that the credibility of witnesses is a significant factor in determining the strength of the prosecution's case.
7) Inconsistencies in the evidence: Any inconsistencies or contradictions in the prosecution's evidence should be highlighted. It is important to argue that these inconsistencies raise doubts about the accuracy and reliability of the evidence. In the case of S v Samuel, the court emphasized the importance of evaluating the consistency and coherence of the evidence against the accused.
8) Substantial delays and prejudice: The accused can argue that substantial delays in the proceedings have prejudiced their ability to mount an effective defense. In the case of S v Mthamboo, the court held that prolonged delays can prejudice the rights of the accused, resulting in the potential for a successful discharge application.
9) Prejudicial media coverage: The accused can argue that prejudicial media coverage has negatively impacted their right to a fair trial. It is important to demonstrate that the media coverage has influenced public perception and potential jury bias. In the case of S v Dewhari, the court recognized the negative impact of media on a fair trial and emphasized the need for caution in such situations.
10) Any other relevant factors: Lastly, it is important to consider any other relevant factors specific to the case that may strengthen the application for discharge. This could include pointing out procedural irregularities, unreliable evidence collection, or improper conduct by the investigating officer. Each case will have unique considerations that should be carefully examined and presented.