S v Tutshana and Others (CC41/14) [2019] ZAECMHC 37 (5 July 2019)

S v Tutshana and Others (CC41/14) [2019] ZAECMHC 37 (5 July 2019)

The court found that the State's evidence was wholly inadequate, disjointed, and riddled with contradictions and inconsistencies. The only witnesses who directly implicated the accused were unreliable, and their evidence was not corroborated by other witnesses or documentary proof. The investigation was deficient,...

Source-derived case information.

Citation
[2019] ZAECMHC 37
Parties
Applicant: The State; Respondent: Makabongwe "Botsotso" Tutshana; Respondent: Jongikhaya "Joe" Mhlauli; Respondent: Simphiwe "Msaybho" Matu; Respondent: Aviwe Lobi
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
5 July 2019
Case Number
CC41/14
Procedural Posture
Criminal Law / Application for Discharge at Close of State's Case Under Section 174 of the Criminal Procedure Act
Outcome
Application for discharge under section 174 of the Criminal Procedure Act granted. All accused found not guilty and discharged.
Judges
M.S. Jolwana
Legal Topics
Section 174 Discharge, Common Purpose, Murder, Kidnapping, Arson, Attempted Murder
Criminal Law Section 174 Discharge Common Purpose Murder Kidnapping Arson Attempted Murder

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Parties

The State

Applicant

Makabongwe "Botsotso" Tutshana

Respondent

Jongikhaya "Joe" Mhlauli

Respondent

Simphiwe "Msaybho" Matu

Respondent

Aviwe Lobi

Respondent

Procedural Posture

Criminal Law / Application for Discharge at Close of State's Case Under Section 174 of the Criminal Procedure Act

Legal Issues

  1. 1 Whether there is sufficient evidence on which a reasonable court could convict the accused on any of the charges.
  2. 2 Whether the evidence presented by the State meets the threshold required to put the accused to their defence.
  3. 3 Whether the doctrine of common purpose was properly established by the State's evidence.

Ratio Decidendi

The court found that the State's evidence was wholly inadequate, disjointed, and riddled with contradictions and inconsistencies. The only witnesses who directly implicated the accused were unreliable, and their evidence was not corroborated by other witnesses or documentary proof. The investigation was deficient, and the State failed to establish the elements of the offences or the doctrine of common purpose. The court held that allowing the case to proceed would violate the accused's constitutional rights, as a conviction could only result from self-incrimination. Accordingly, the application for discharge under section 174 was granted, and all accused were found not guilty and discharged.

Court Disposition

Application for discharge under section 174 of the Criminal Procedure Act granted. All accused found not guilty and discharged.

Orders

  • The application in terms of section 174 of the Criminal Procedure Act is granted.
  • The accused are found not guilty and discharged.