1. Credibility of state witnesses: In Mpetha 1983 (4) SA 262 ( C ) the court held that held that the credibility of state witnesses should only play a limited role when deciding whether to discharge the accused or not.
2. Quality of evidence: In Mpetha (above) ,it was also held that where the quality of state witnesses is so poor that no reasonable person would accept it , that evidence should be ignored.
3. Abuse of process: If the prosecution or investigating authorities have engaged in an abuse of process, such as withholding evidence or coercing witnesses, discharge may be granted. In Minister of Justice and Constitutional Development v Buthelezi, 2012 (2) SACR 106 (KZP), the court held that the prosecution's failure to disclose important information constituted an abuse of process.
4. Accused’s right against self incrimination: According to the judgment in Lubaxa 2001 (2) SACR 703 (SCA), the accused must be released at the conclusion of the state's case if conviction is only achievable if the accused testifies and self-incriminates. According to paragraph [19], if the prosecution has used all available evidence and a conviction can only be obtained by self-incrimination, the accused should be released on the grounds of the right to freedom and dignity.
5. Double jeopardy: To avoid double jeopardy, the accused may be given a discharge if they had previously been tried for the same offense and found not guilty or not guilty. The accused in S v Kaplan and Others, 1990 (3) SA 52 (A) were released from custody by the court due to their prior trial and acquittal for the same offense.
6. Sufficiency of the prosecution’s evidence: “A discharge will be refused where the prosecution has presented ‘sufficient evidence to establish a prima facie case against the accused, such an accused will be at risk of conviction if they do not produce satisfactory evidence in rebuttal” – M Reddi and B Ramji Section 174 of the Criminal Procedure Act: Is it time for its abolition? (Unpublished manuscript, 2017) 19.
7. Circumstantial evidence: The court stated in Cooper 1796 SA (2) 889 (T) that if the state's case is based on circumstantial evidence that allows for many inferences, a discharge may be denied if any of the inferences point to the accused's guilt.
8. Prejudice to the accused: A discharge may be appropriate if continuing the trial will unfairly disadvantage the accused, maybe because of a physical or mental disability. The court determined that the accused's capacity to provide a strong defense was hampered by the significant delay in bringing them to trial, which resulted in a successful application for discharge in S v Mthethwa (CC03/2014) [2017] ZAWCHC 28.
9.Procedural irregularities: The accused may be discharged if there are significant procedural flaws or rights breaches. Because the matter was delayed for a long time before going to trial, the court in S v Nkaba, 2014 (1) SACR 474 (SCA) dismissed the accused.
10.Public interest: In cases when the trial unnecessarily impedes the administration of justice, discharge might be granted. The court determined that the substantial financial resources needed for the trial would compromise the effective administration of justice in, S v Williams2 011 (1) SACR 58 (SCA).
Summarise the above points in one paragraph