The South African criminal justice system is built on the principle that an accused person is innocent until proven guilty. One of the most important procedural tools that gives effect to this principle is the section 174 discharge under the Criminal Procedure Act 51 of 1977 (CPA). It allows an accused person to be released from prosecution before they are required to present a defence. This article will examine what a section 174 discharge is, how it operates, and what the courts have said about when it should be granted.
The Legal Basis
Section 174 of the CPA provides that if, at the close of the prosecution’s case, the court is of the opinion that there is no evidence that the accused committed the offence charged, it may return a verdict of not guilty. The application is made after the prosecution closes its case and before the defence is required to respond. This provision gives the court discretion to determine if there should be a discharge, although it is not compelled to rule as such.
What “No Evidence” Means
The phrase “no evidence” in section 174 does not mean a complete absence of any evidence. The courts have followed this position in R v Shein 1925 AD 6, where it was established that the words mean no evidence on which a reasonable court might convict. This has remained the most consistent principle in the section 174 jurisprudence. The threshold for the state at this stage is therefore to demonstrate that there is a prima facie case on each element of the charge that could possibly sustain a conviction.
The Role of Credibility
A question that has caused debate is whether a court can assess the credibility of state witnesses at this stage. The answer, as settled in S v Mpetha and Others 1983 (4) SA 262 (C), is that credibility plays only a limited role. The evidence of state witnesses can only be disregarded if it is of such poor quality that no reasonable person could possibly accept it. Courts are not permitted to engage in a full weighing of evidence here, as that is reserved for the end of the trial.
The S v Lubaxa Test
Prior to the constitutional era, the leading test came from S v Shuping and Others 1983 (2) SA 119 (B), where Hiemstra CJ formulated a two-part inquiry: first, whether there is evidence on which a reasonable person might convict; and second, whether there is a reasonable possibility that defence evidence might supplement the state’s case. If either question was answered in the affirmative, discharge would be refused.
The second leg became contentious under the Constitutional dispensation. In S v Lubaxa 2001 (2) SACR 703 (SCA), the Supreme Court of Appeal abandoned it, reasoning that to force a trial in the hope that an accused would incriminate themselves when the state’s case had already failed to do so, inherently violated the constitutional rights to dignity and personal freedom. The inquiry is therefore focused on the state’s case as it stands on its own. Although discretion remains where there are cases involving multiple accused persons, where one may be incriminated by a co-accused.
Limits of Section 174
Courts have cautioned against using section 174 as a tactical approach. In S v Smit and Another (WCC, unreported, CC54/2021) [2025] ZAWCHC 512, the court warned against attempts to obtain premature credibility findings or to tailor the defence based on the court’s preliminary assessment. As noted in S v Boesak 2001 (1) SA 912 (CC), we have an adversarial system, and where there is evidence adduced that makes a prima facie case then an accused who fails to rebut such evidence risks the court accepting it.
Conclusion
Section 174 is one of the most important safeguards in the criminal justice system. It ensures that the system is not abused by prosecutors and that they need to bring cases that meet the threshold of a prima facie case for the accused to answer.
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