S v Luke and Others (SS16/2010) [2011] ZAWCHC 329 (15 August 2011)

S v Luke and Others (SS16/2010) [2011] ZAWCHC 329 (15 August 2011)

The court found that, except for counts 3 and 8, there was sufficient evidence—either direct, circumstantial, or through admissible confessions—to put the accused on their defence. The applications for discharge under Section 174 were refused for all counts except 3 and 8. The evidence regarding the identity of the deceased and the firearm calibre was clarified and did not prejudice the accused. The court applied the principles from S v Lubaxa, distinguishing between single and multiple accused, and found that the possibility of co-accused supplementing the State's case justified refusing discharge for most accused. The State's concessions regarding counts 3 and 8 were accepted, and all...

Citation
[2011] ZAWCHC 329
Parties
Applicant: The State; Respondent: Lunga Paul Luke; Respondent: Thobela Nono; Respondent: Celani Maxwell Twazi; Respondent: Mzukisi Malamlela; Respondent: Zamekile Ngqonga; Respondent: Thando Mafalala; Respondent: Thobile Nicola Pezisa; Respondent: Gcinikhaya Mkoma; Respondent: Andile Ndanani; Respondent: Zukile Saniso Netti; Respondent: Thembekie Nicholas Tikipini
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 August 2011
Case Number
SS16/2010
Procedural Posture
Criminal Law Application / Section 174 Discharge Applications After Closure of State's Case
Outcome
Applications for discharge under Section 174 are refused except for counts 3 and 8, on which all accused are discharged.
Judges
P.A.L. Gamble
Legal Topics
Section 174 Discharge, Admissibility of Confessions, Circumstantial Evidence, Amendment of Indictment
Criminal Law Civil Procedure Section 174 Discharge Admissibility of Confessions Circumstantial Evidence Amendment of Indictment

Case Brief

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Parties

The State

Applicant

Lunga Paul Luke

Respondent

Thobela Nono

Respondent

Celani Maxwell Twazi

Respondent

Mzukisi Malamlela

Respondent

Zamekile Ngqonga

Respondent

Thando Mafalala

Respondent

Thobile Nicola Pezisa

Respondent

Gcinikhaya Mkoma

Respondent

Andile Ndanani

Respondent

Zukile Saniso Netti

Respondent

Thembekie Nicholas Tikipini

Respondent

Procedural Posture

Criminal Law Application / Section 174 Discharge Applications After Closure of State's Case

Legal Issues

  1. 1 Whether there is sufficient evidence on which a reasonable court could convict each accused on the charges.
  2. 2 Whether any accused should be discharged on specific counts under Section 174 of the Criminal Procedure Act.
  3. 3 Whether the amendment of the indictment regarding the calibre of the firearm prejudiced the accused.

Ratio Decidendi

The court found that, except for counts 3 and 8, there was sufficient evidence—either direct, circumstantial, or through admissible confessions—to put the accused on their defence. The applications for discharge under Section 174 were refused for all counts except 3 and 8. The evidence regarding the identity of the deceased and the firearm calibre was clarified and did not prejudice the accused. The court applied the principles from S v Lubaxa, distinguishing between single and multiple accused, and found that the possibility of co-accused supplementing the State's case justified refusing discharge for most accused. The State's concessions regarding counts 3 and 8 were accepted, and all...

Court Disposition

Applications for discharge under Section 174 are refused except for counts 3 and 8, on which all accused are discharged.

Orders

  • All accused are found not guilty and discharged on count 3 (attempted murder of Mr Freddie Abrahams).
  • Accused 1, 2, 3, 4, 5, 6, and 7 are found not guilty and discharged on count 8 (hijacking of Mr Florens' minibus taxi).