S v Msuthu & Others (CC10/2017) [2021] ZAECMHC 33 (17 September 2021)

S v Msuthu & Others (CC10/2017) [2021] ZAECMHC 33 (17 September 2021)

The court held that section 174 of the Criminal Procedure Act requires discharge of an accused where, at the close of the State's case, there is no evidence on which a reasonable court could convict. In respect of several counts, the State failed to lead any evidence whatsoever against certain accused, necessitating their discharge. Where identification evidence was relied upon, the court found it unreliable due to the absence of identification parades and lack of corroboration, especially as the witnesses only saw the accused in the dock years after the alleged offences. Mere possession of a firearm after the fact was insufficient to infer participation in the robberies or murders...

Citation
[2021] ZAECMHC 33
Parties
Applicant: The State; Respondent: Phiwokuhle Msuthu; Respondent: Thandisizwe Ntumbukana; Respondent: Wanele Ndlebe; Respondent: Mcebisi Poyo; Respondent: Lundi Gumenge; Respondent: Wonke Ndlebe
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
17 September 2021
Case Number
CC10/2017
Procedural Posture
Criminal Law / Section 174 Discharge Applications After Close of State's Case
Outcome
Applications for discharge under section 174 of the Criminal Procedure Act were granted in respect of certain counts and accused, and refused in respect of others as detailed in the orders.
Judges
M.S. Jolwana
Legal Topics
Section 174 Discharge, Identification Evidence, Unlawful Possession of Firearms, Armed Robbery, Murder, Attempted Murder
Criminal Law Section 174 Discharge Identification Evidence Unlawful Possession of Firearms Armed Robbery Murder Attempted Murder

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Parties

The State

Applicant

Phiwokuhle Msuthu

Respondent

Thandisizwe Ntumbukana

Respondent

Wanele Ndlebe

Respondent

Mcebisi Poyo

Respondent

Lundi Gumenge

Respondent

Wonke Ndlebe

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether there is sufficient evidence against each accused to justify refusal of discharge under section 174 of the Criminal Procedure Act.
  2. 2 Whether identification evidence presented by the State meets the required threshold for reliability and sufficiency.
  3. 3 Whether possession of firearms and ammunition can be inferred from the evidence led.

Ratio Decidendi

The court held that section 174 of the Criminal Procedure Act requires discharge of an accused where, at the close of the State's case, there is no evidence on which a reasonable court could convict. In respect of several counts, the State failed to lead any evidence whatsoever against certain accused, necessitating their discharge. Where identification evidence was relied upon, the court found it unreliable due to the absence of identification parades and lack of corroboration, especially as the witnesses only saw the accused in the dock years after the alleged offences. Mere possession of a firearm after the fact was insufficient to infer participation in the robberies or murders...

Court Disposition

Applications for discharge under section 174 of the Criminal Procedure Act were granted in respect of certain counts and accused, and refused in respect of others as detailed in the orders.

Orders

  • Accused no.1 is discharged on counts 3, 4, 5, 6, 8, 9, 10, and 11; discharge on counts 16 and 17 is refused.
  • Accused no.2 is discharged on counts 1, 2, 12, 13, 14, 15, 16, and 17.