Module Tll4801

Author Maharaj, A,
Year of Publication 2010
Title Confident Criminal Litigation
Publisher LexisNexis
Chapter number Chapter 1
Chapter title The trial
Page numbers 7-33
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Chapter 2
The trial

2.1 The introduction

The defence attorney must ensure that he/she has right of appearance to
appear in the appropriate court.
It is common courtesy and good manners for the defence attorney to intro-
duce him-/herself to the presiding officer. Ideally, the attorney' s principal should
do this, but, due to practical cons iderations and busy practices, this is unlikely to
happen on a regular ba sis. Remember that as an attorney in waiting, the defence
attorney's conduct reflects on the office of his/her principal, so he/she should
carry him -/herself with pride and dignity at all times.
When conducting his/her first trial in a particular court, there is no harm in the
defence attorney bringing this fact to the attention of the presiding officer.
However, do not say "Please bear with me" or " Please overlook my mistakes and
shortcomings". These statements immediately create a poor impression of the
defence attorney's ability and confidence. The fact that the presiding officer is
aware that that this is the defence attorney' s first tria l is a sufficient pointer for
the presiding officer to be flexible and accommodating.
The defence attorney shou ld remember that first impressions last; therefore,
he/she should project confidence, but not appear egotistical and loquacious. Be
polite and courteous at all times.

2.2 The preparation

By the time an attorney appears to represent his/her client for trial, it is
assumed that he/she has received the further particulars in the matter and has
taken full instructions. All these instructions, particularly the stateme nts of
defence witnesses, shou ld ideally be reduced to writing. Whe re necessary, the
attorney should conduct an inspection of the scene, compile a plan and take
photographs or make a video for his/her defence . Showing the court real
evidence makes a positive impact on the court- remember, as an attorney, the
defence attorney is an agent for his/her client.
Whateve r the defence attorney does, regardless of wheth er it is positive or
negative, it w ill have an impact on the client. Therefore, the defence attorney

7
Confident Criminal Litigation

must endeavour to represent his/her client to the best of his/her ability and to
the full extent allowed by the law, without compromising his/her integrity or
ethical duties. It must be also patently obvious to the client that the defence at-
torney has prepared for the trial.
~ Note section 35(3){/) of the Constitution, which provides that:

Every accused person has the right to a fair trial, which includes the right to
choose, and be represented by, a legal practitioner, and to be informed of this
right promptly.

Also note section 73(2), 2(A)(e), 2(B) and 2(C) of the CPA, and section 35(2)(b),
(c) and (g) of the Constitution. Both appear in the Appendices to this volume.
The defence attorney must inform his/her client, on the basis of the instruc-
tions received, of the best possible options, and supply reasons for such options.
He/she must also bring to the client's attention the possibility of plea bargaining
to curtail court time, and inform the client about the defences the law allows on
the facts given.
Under no circumstances should the defence attorney create or fabricate a de-
fence for his/her client. The defence attorney is there to present a case accord-
ing to the instructions given to him/her. The defence attorney must remember
that he/she is an officer of the court and that his/her integrity and bona fides
must be beyond reproach. Clients will come and go, but the defence attorney
will always appear have to appear before the same judicial officers.
Once a defence attorney loses that respect from the court, it is unlikely that
he/she will be trusted again, and his/her word will always be subject to doubt.
There have been clients who have, in open court, indicated that "the attorney
told me what to say" or "I wanted to plead guilty but he/she said we can take a
chance". The attorney who does this lives dangerously. The legal profession is a
noble one, therefore he/she must conduct him-/herself in a manner that en-
hances that perception rather than destroys it.
In addition, the defence attorney should not make promises he/she cannot
keep. The client should never be guaranteed a verdict or what sentence he/she
will receive unless it is agreed with all the role-players concerned. Sentencing is
the sole prerogative of the judicial officer.
The defence attorney must not pretend to the client that he/she has every-
thing "organised" in court or that the presiding officer is a friend or relative.
Such conduct will inevitably rebound, to the defence attorney's detriment. Ac-
cused persons have, in open court, indicated that they were told by the attorney
that they would not get a custodial sentence; or would not be convicted; or
would receive a suspended sentence or a small fine. Defence attorneys must de-
sist from such conduct.

8
 Chapter 2: The trial

Always fam iliarise the client with the lay-out of the court and its personnel.
Give him/her a run-down of the procedures in court and what is going to hap-
pen; for example, show him/her where to stand; tell him/her that the charges
will be read to him/her by the prosecutor and that he/she will be required to
plead to the charge (usually "guilty" or "not guilty") depending on what instruc-
tions have been given . Also bring to his/her attention that the court may want to
confirm certain averments with him/her.
Once the above has been done the defence attorney is required to do the fol -
lowing:
D stand up and make sure that the microphone is in front of him/her to record
what he/she says;
D confirm to the court that he/she appears for the client as follows:

May it please the court or your worship; I appear for the accused in the
matter.

The defence attorney may also indicate which firm of attorneys he/she is
from and that the plea tendered by the client is in accordance with the in -
structions given by the client. Remember to speak audibly and coherently.
D If the defence attorney has not prepared a statement in terms of section 115
of the CPA and does not wish to disclose the basis of the defence, he/she
should tell the court that :

. .. the defence has not prepared a written statement and elects to remain
silent.

It is the author's view that this is the best way of saying that the defence de-
nies each and every allegation . The impression is given that the offence
never took place and that the defence will also not be disputing date, time
or place.
D If the defence attorney has prepared a statement in terms of section 115 of
the Act, it should be typed out. This shows professiona lism and prepared-
ness. Indicate clearly in the statement what the basis of the defence is, in ac-
cordance with how the client will testify. If the client wishes to make certain
admissions in order to curtail proceedings, do so, as this limits the issues to
be decided.
These admissions may be made in terms of sections 115{2){b) or 220 of the CPA.
Briefly, the differences are as follo w s:
D Section 115{2)(b) adm issions are made at plea stage; the client can only ad -
mit to allegations in the charge sheet, and the admission cannot be used to
prove the admissibility of evidence .

9
Confident Criminal Litigation

D Section 220 admissions can be made at any stage of the proceedings and can
be used to admit evidence or anything about the case.
Note the sentiments of Satchwell J in S v Kleyhans 2005 (2) SACR 572 (W)
at 583[1]-584[C]:

The plea of guilty is based upon a statement in terms of section 112 of the Crimi-
nal Procedure Act ... I consider the manner in which this document was prepared
to be utterly contemptuous of the learned magistrate presiding at the trial and
the court proceedings themselves. First, it is hand written when it should be
typed. Secondly, the handwriting is careless, untidy and written without regard to
the proprieties and the serious nature of the document prepared. Thirdly, there
are crossing out, underlining's are done without a ruler and sometimes it is even
difficult to read the writing. It appears that the attorney who prepared this has
perhaps over time ceased to observe proper decorum and respect for the legal
proceedings in which he is involved. There is nothing in the record to suggest that
there was insufficient time to properly prepare such an important document.
Indeed the very nature of the plea and the document upon which it is based is
such that time should be and was taken before_they were tendered. The conse-
quences for an accused person are of great significance.

The admissions made help to limit the issues to be decided by the court and give
all the parties the opportunity to focus on what is in dispute. The making of
admissions is also a sign of maturity and insight into the case. If issues are going
to be common cause, for example, who the driver of the motor vehicle was; the
date, time and place of a collision, etc., then no harm is done if these are
admitted, regardless of whether the accused denies that he/she was reckless or
negligent.
The section 115 statement with admissions; if any, must be signed by the ac-
cused and handed in as an exhibit. The court will in all probability request the
accused to confirm the contents of the statement.
Example of a section 115 statement:

In the Magistrate's court for the District of Durban, held at Durban

In the matter between
The state
versus
John Doe case no: 23/129/99
Statement in terms of section 115 of Criminal Procedure Act 51 of 1977
1
I confirm that I have been informed of the charges preferred against me and
understand same.

continued

10
 Chapter 2: The t rial

2
I plead not guilty to the ch arges.
3
The basis of my defen ce is a sudden emergency, in that th e deceased ran in front
of my motor vehicle and there wa s in sufficient time to take evas ive action .
4
The following admissions may be recorded in terms of section 115(2)(b) of th e
Act :
4.1. I wa s the driver of motor vehicle ND123
4.2. The incident took place on 19 July 2009 in Alpine Road
4.3. Alpine Road is a publi c road with in the district of Durban
5
The following admissions may be recorded in terms of section 220 of the Act:
5. 1. The deceased was Mary Jane, a five-year-old child
5.2. The cause of death wa s the result of injuries su st ained by being knocked
down by the vehicle I was driving
5.3. The deceased died at the scene
5.4 . The post mortem correctly reflects the cause of death
5.5. The deceased suffered no further injuries up until the post mortem was
concluded

Signed: John Doe

If the client wishes to plead guilty, the procedure is the same : The defence
attorney confirms that he/she appears on behalf of the accused; that the
accused ' s plea is one of guilty, and that the defence attorney has prepared a
statement in terms of section 112(2) of the Act .
The defence attorney must then ask for leave from the court to read th e
statement audibl y and coherently into the record . For example : ((May it please
the court, I have prepared a written statement on behalf of the accused", and
(( May I have leave to read out same into the record?"
The defence attorney must ensure that the statement is signed by way of sig-
nature, mark or print. The statement must be typed out wherever possible,
more so if the matter was specificall y set down for plea .
Thereafter, the defence attorney should ask the court for leave to hand up the
statement as an exhibit . The court will then ask the accused whether he/she
confirms the correctness of the statement. If the accused answers in the affirma-
tive, the court will then ask the prosecutor whether the facts as disclosed in the
statement are acceptable to the state .

11
Confident Criminal Litigat ion

A gu ilty plea sta t ement m ust dea l w ith t he merits of the case. The sta t eme nt
ca n also set out mitigating facto rs. See 5 v Cele 1990 (1) SACR 251 (A) .
The court has to be satisfied t hat the accused is gu ilty of the offe nce, and is
bound to accept t he facts on w hich the accused pleaded gui lty as a basis for sen-
tence.
Where minors are involved in sexual offences cases, their names should not be
mentioned in section 112(2) statements. See 5 v Dzukudu 2001 (2) SACR 244 (W).
The test in section 112(2) is whether what the accused says is true . The st ate-
ment must not disclose a defence to the charge.
In 5 v Msomi 1982 (1) SACR 537 (A), the statement lacked the necessary fac-
tual basis which could have satisfied the court of the accused's guilt. A state-
ment which merely amounts to a regurgitation of what appears in the charge-
sheet is insufficient. See 5 v B 1991 (2) SACR 405 (N).
Note that section 113 of the Act provides for the correction of a plea of guilty
where the court is in doubt regarding whether the accused:
D is in law guilty of the offence;
D did not admit the allegation in the charge;
D has incorrectly admitted any such allegation;
D has a valid defence to the charge; and
D if the court is of the opinion for any other reason that the accused's plea of
guilty should not stand,
D then the court shall record a plea of not guilty. A plea of not guilty can be in -
voked at any stage prior to sentence being imposed .
It should be borne in mind that, if the accused wants to change his/her guilty
plea, he/she needs to give a reasonable explanation for doing so. The court may
refuse the application if it finds beyond a reasonable doubt that the application
is false.
The defence attorney has to be familiar with the definition of the offence an d
all its elements in order to draft a proper plea. He/she must also ascertain
whether the client has previous convictions before pleading guilty, as this may
also assist the defence attorney in drafting his/her plea. For example, the ac-
cused could have a propensity to steal a particular item because of medica l or
non-pathological reasons. Under no circumst ances shou ld an accused be co-
erced or forced to plead guilty. The defence attorney must also bear the prov i-
sions for minimum sentences in mind when entering a guilty plea.

12
 Chapter 2: The trial

Example of a guilty plea:

In the Magistrate's Court for the District of Durban, held at Durban

In the matter between
The State
versus
John Doe case no: 23/164/1999
Statement in terms of section 112(2) of the Criminal Procedure Act 51 of 1977
1
I confirm that I have read the charge sheet and understand the charge that has
been preferred against me.
2
I plead guilty to the charge freely and voluntarily and without any undue influ-
ence.
3
The facts on which I plead gui lty are as follows:
On 19 July 1999, I went into Shoprite Checkers to purchase groceries. My budget
was approximately RlOO, which I had in my possession. I se lected items such as
bread; milk; cheese and yoghurt and placed them in the trolley. The value of the
goods taken was R98,00. I then saw a bottle of "You're the Fire" perfume for men
which I wanted. The value of the perfume was RlOO,OO. I did not have sufficient
funds to pay for the perfume. I took the perfume off the shelf and looked around
to see if anyone was watching.
I saw that there was no other perso n in the aisle so I concealed the perfume in my
right trouser pocket. Having satisfied myself that my actions were unnoticed I
proceeded to the till point where tendered the RlOO note as payment for the
goods that I had selected . I was given R2,00 as change by the cashier. I proceeded
past the till point with my purchases .
On leaving the store I was approached by a person who introduced himse lf as the
store detective and requested that I accompany him to the back of the store to
the security offices. I complied with his request and wa s taken into a private
room. The store detective informed me that he had observed me selecting the
perfume and concealing it on the closed circuit television and that I had not paid
for same.
I accepted what he had said and handed the perfume to him.
4
I know that my actions were unlawful and wrong. I had no intention of paying for
the said item. I had intended to keep the item for myself and hence permanently
deprive Shoprite Checkers of the said item. I accept the value of the item and that
it is the property of Shoprite Checkers. I accept that I have no defence in law for
my conduct.

Accused : John Doe

13
Confident Criminal Litigation

The defence attorney should take the time to secure as much information as is
favourable to the accused as possible in mitigation of sentence. He/she should
avoid saying "I leave the matter for the court to decide", as he/she has been
instructed to represent the accused to the best of his/her ability.
The defence attorney should also note the provisions of some Acts, such as
the National Road Traffic Act 93 of 1996, or the Firearms Control Act 60 of 2000,
w hich provide for the automatic cancellation of drivers' or firearm licences,
unless the court determines otherwise, and make sure to address the court in
respect of the reasons why the client should not lose his/her driver's or firearm
licence.
As a rule, the defence attorney should research everything he/she can about
the particular offence he/she is dealing with, regardless of w hethe r it is common
law or a statutory offence. If it means readin g the entire Act or Regulation, then
he/she should do so.
The defence attorney should always be full y prepared. He/ she must ascertain
the penalty provisions that are applicab le to the offen ce, as failure to do so will
expose his/her ignorance and incompetence, and severely prejudice the client.
Example 1 of a section l OSA statem ent :

In the Regional Division of Kwazulu Natal

In the matter between
case no : 41/0927/2007
The state
versus
Vikesh Ram cha ran Accused
Agreement bet ween t he stat e and the accused
in te rms of section 105A of Act 51 of 1977
1
WHEREAS t he undersigned Prosecutor has been duly authorized by th e Senior
Publ ic Prosecution t o enter into t his agreement and,
2
WHEREAS the Accused is legally represent ed and has been advised of his rights
and of the implications of this agreement and,
3
WHEREAS the Prosecutor has consulted with the person charged with the invest i-
gation of this case and with the complainant and has complied with the provisions
of Section 105A[1][b] of Act 51 of 1977 and,

continued

14
 Chapter 2: The trial

4
WHEREAS the accused has been informed of his right :
[1] To be presumed innocent until proven guilty beyond a re asonable doubt;
[2] To remain sile nt and not to testify during the proceedings; and
[3] Not to be compelled to give self-incriminating evid ence and,
5
WHEREAS th e terms of thi s agreement are that:
[i] The Accu sed shall plead guilty to th e crimes of fraud as per the Annexure to
th e Charge Sheet;
[ii] The facts of this matter are those recorded in Paragraph " 6" hereunder;
[iii] A just sentence in the circumstances shall be the sentence as proposed in
Paragraph "8" hereunder and;
6
WHEREAS the su bstantial facts of this matter are:
6.1 The accused wa s at all material times an employee of CUPID STEEL and/or
MR R MAHARAJ being employed as a salesman/buyer;
6.2 The accused's duties included helping with deliveries in and aro und Durban
and also processing his own manual invoices;
6.3 In doing so, he would place an order with the suppl iers with a reference
initial and order number;
6.4 He used pre-used order numbers and non-existent numbers to purchase
steel and other persons would collect the steel on our behalf as if it was for
CUPID STEEL and/or MR R MAHARAJ and transport it to persons wh ere it
was sold at a reduced price;
6.5 The accused together with other persons would then share in the proceeds
upon payment. He received the actual share amount of R34 500.
6.6 The accused admits that the representations were false and done with the
sole intention of defrauding CUPID STEEL and/or MR R MAHARAJ.
The accused accordingly pleads guilty to a crime of fraud: -
1. In that upon or about the dates mentioned in col umn 2 of Annexure 'A'
hereto and at or near Chatsworth with the Regiona l Division of KwaZulu-
Natal he did wrongfully, unlawfully, falsely and with intent to defraud, give
out and pretend to CUPID STEEL and/or MR R MAHARAJ that the amounts
mentioned in column 3 of Annexure 'A', hereto;
2. That the re were bona fide orders for CUPID STEEL which were to be order
payments.
3. These payments were owed to the parties mentioned in column 5 of Ann ex-
ure 'A' by CUPID STEEL/or MR R MAHARAJ;

continued

15
Confident Criminal Litigc:tion

4. And did then and there, by means of the said false pretence induce CUPID
STEEL and/or MR R MAHARAJ to the loss, prejudice or potential prejud ice of
CUPID STEEL and/or MR R MAHARAJ to believe that the amounts reflected in
the third column of Annexure 'A' hereto were real orders for the compa ny
and reflected the true amounts to be paid over to the parties mentioned in
column 5 of Annexure 'A' hereto. These payments were made to the re spec-
. tive parties in column 5 of Annexure 'A';
5. Whereas the truth and fact the accused when he gave out and pretended as
aforesaid, he knew that the orders for CUPID STEEL and/ or MR R MAHARAJ
and the amounts mentioned in column 3 of Annexure 'A' hereto were not
real transactions for the company but for his own personal gain t ogether
with other persons;
6. The steel orders were paid for by CUPID STEEL and/or MR R MAHARAJ but
the raw material was never received by CUPID STEEL and/or MR R MAHARAJ
but was collected and sold by the accused to various other persons for his
own personal profit;
7. The actual prejudice suffered by CUPID STEEL and/or MR R MAHARAJ wa s to
the amount of R161 233,24 and has not been recovered.
NOW THEREFORE the Accused is/are guilty of the crime of FRAUD.
7
FACTS RELEVANT TO SENTENCE:
The Accused:
[a] The following factors are submitted as constituting substantial and compelling
circumstances that should be taken into consideration for the purposes of sen-
tencing.
7.1 that the accused has now confessed to the complainant company and has
expressed his remorse for his actions and accepted responsibility therefore;
7.2 that he subsequently resigned from his employment and is employed on a
temporary basis;
7.3 his resignation has caused considerable hardship to his family;
7.4 that he has willingly pleaded guilty to his actions and has agreed to assist the
State by testifying against his co-accused;
7.5 that he has one previous conviction for driving under the influence of alcohol
approximately three to four years ago;
7.6 that the cumulative effect of the sentence as formulated above serves the
interests of the community and acts as a suitable deterrent to the accused;
8
It is agreed that a just sentence in the circumstances shall be:
The accused is sentenced to:
[1] Five [5] years imprisonment which is wholly suspended for a period of five
years on condition that the accused is not convicted of fraud, theft or a

continued

16
 Chapter 2: Th e trial

competent verdict thereto committed during the period of suspension and is

further subject to the following condition s: -
[2] In order to meet the community's expectations in terms of retribution and
"compensation" for crime, the accused is to do One Thousand [1000] hours
of free community service over t he next five [5] years at the RED CROSS
DURBAN (sixteen [16] hours per month) .
[3 ] The Accused is further ordered to pay compensation in lieu of a fine to the
complainant MR R MAHARAJ which is payable in two [2] installments:
Two Thousand and Five Hundred Rands [R2500] by month ending Sep-
tember 2007;
• Two Thou sand and Five Hundred Rands [R 2500] by month end ing 30 No-
vember 2007 .
DATED AT DURBAN ON THIS THE 27TH DAY OF JULY 2007.

Vi kesh Ramchara n
[Accused]

Accused's Attorney

Senior Public Prosecutor

BY ORDER
The accused is sentenced to:
[1] Five [5] yea rs' imprisonment which is wholly suspended for a period of fi ve
years on con dition that the accused is not convicted of fraud, theft or a
competent verdict thereto comm itted during the period of suspension and is
further subject to the following condition s:-
[2] In order to meet the community's expectations in terms of retribution and
"compensation" for crime, the accused is to do One Thousand [1000] hours
of free community service over t he next f ive [5] years at t he RED CROSS
DURBAN (sixt een [16] hours per month) .
[3] The Accused is further ordered to pay compensation in lieu of a f in e to the
complainant MR R MAHARAJ which is payable in two [2] installments:
• Two Thousand and Five Hundred Rands [R2500] by month ending Sep-
tember 2007;
• Two Thousand and Five Hundred Rands [R2500] by month ending 30 No-
vember 2007 .
DATED AT DURBAN ON THIS THE 27TH DAY OF JULY 2007 .

Presiding Officer

17
Confident Criminal Litig ation
J
Example 2 of a section lOSA statement:

IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF NATAL

Held at Durban
case no:
In the matter between : -
State
versus
Ebrahim Desai Acc used 1
Rassalla Sayed Hassen Accused 2
Nemallipuri Ramesh Babu Accused 3
Plea and sentence agreement
In terms of Section lOSA of Act 51 OF 1977
1
1.1 The Director of Public Prosecutions is represented herein by the Deputy
Director, Advocate R Stuart, duly authorised in writing by the National Di -
rector of Public Prosecutions.
1.2 The Investigating Officer is Detective Inspector Ngxazana stationed at
Umzimkulu SAPS.
1.3. The Accused are represented by Advocate PO Hemraj SC instructed by
Attorney 0 Moodley of OMI Attorneys Inc.
2
The Accused state in compliance with Section 105A(2) of the abovementioned Act
that before entering into this Agreement, they have been informed that they have
the right: -
2.1 to be presumed innocent until proven guilty beyond reasonable doubt;
2.2 to remain silent and not to testify during the proceedings; and
2.3 not to be compelled to give self-incriminating evidence.
3
The Accused state, in compliance with sub-section 5 of the abovementioned Act,
that they have entered into this agreement freely and voluntarily, in their sound
and sober senses and without having been unduly influenced.
4
TERMS OF THE AGREEMENT:
4.1 The Investigating Officer has investigated allegations of Assault with intent
to do Grievous Bodily Harm against the Accused;
4.2 The Accused pleads guilty to Assault with intent to do Grievous Bodily Harm .
4.3 The Investigating Officer has discussed the terms of this agreement with the
family of the deceased.

continued

18
 Chapter 2: The trial

SUBSTANTIAL FACTS OF THE MADER:

5
5.1 The complainant (now deceased) was employed by Macksons Supermarket
as a security guard and stationed at Mackson's Wholesale Supermarket in
Umzimkulu. Accused 1 is employed by Macksons Supermarket as a manager,
and Accus ed 2 and 3 and employed as clerks .
5.2 On or about 26 March 2009, the complainant was observed on the surveil-
lance cameras on the premises steal ing crates of various items from the
premises of the supermarket.
5.3 He was taken into a room at the Supermarket, shown the footage from t he
surveilla nce camera and questioned about the theft by the accused . During
the qu estioning, he was assaulted by accused number 1, Ebrahim Desai . The
other accused, nevertheless associated themselves with the assault perpe-
trated by accused 1.
5.4 The co mplainant wa s escorted out of that room by the manager of Titan
Security (a company employed by Macksons), who transported him away
from the premises. He was seen to be assaulted by other persons during that
night, and was found dead the following morning.
5.5 The Accu sed accordingly admit that on the 26th day of March 2009, and at
Umzimkulu, in the Regional Division of Natal, they did wrongfully and unlaw-
fully assault Maduna Andrias Bhekukuphiwa with intent to do grievous bod -
ily harm .
5.6 The accused regret that they acted in the manner that they did and further
that the complainant lost his life in the further assault. Soon after the inci -
dent, the accused arranged through the Mayor of Umzimkulu to pay com -
pe nsation to the family of the complainant in the amount of Twenty
Thousand Rand [R20 000,00]. This amount was paid over to the Mayor, but
was not handed to the family of the deceased. An enquiry into the conduct
of the Mayor has been convened and is pending. In these circumstance s, the
accused wish to repeat the payment of compensation to the family of the
deceased in the amount of Twenty Thousand Rands [R20 000,00] payable to
the Clerk of the Court, Durban on or before 7 May 2010.
PERSONAL CIRCUMSTANCES OF THE ACCUSED
6
6.1 Accused 1 is thirty-six [36] years old, married, with two [2] minor children, all
of whom he supports. He is still emp loyed at Macksons Supermarket. He has
no previous convictions.
6.2 Accused 2 is forty-nine [49] yea rs old, married with three [3] minor chi ldren,
and still emp loyed at Macksons Supermarket. He has no previ ous convic-
tions.
6.3 Accu sed 3 is thirty-five [35] years old, marri ed with two [2] minor chi ldren
and also sti ll em ployed at Macksons Superm arket . He has no previous con -
victions.

continued

- 19
 Confident Criminal Litigation

SENTENCE AGREE MENT

7
The following sentence is agreed upon :-
7.1 The Accused are each sentenced to a term of imprisonment of eighteen [18]
months, wholly suspended for three [3] years on condition t hat the Accused
are not convicted during the term of suspension of offence of assault with
intent to do grievous bodily harm .
7.2 The Accused are to pay to the Clerk of the Court, Durban, an amount of
Twenty Thousand Rand [R20 000,00] in compensation to the fami:y of the
complainant, on or before 7 May 2010.
DATED at DURBAN on this day of APRIL 2010.
_ _ __ _ _ _ _ Accused 1

_ _ _ _ _ _ _ _.Accused 2

_ _ _ _ _ _ _ _.Accused 3

_ _ _ _ _ _ _ _ Attorney for Accused

_ _ _ _ _ _ _ _ D Moodley

_ _ _ _ _ _ _ _ State Advocate

Presiding Officer

2.3 Strategies and techniques for trial preparation

The defence attorney must
D Peruse all further particular documents.
D Check whether the charge sheet is correctly completed, discloses an offence
or uses the correct statutory provisions . He/she has to apply for the further
particulars. Generally, the matter will be adjourned to enable the clerk to
photocopy the documents.
D Read all the sections mentioned in the charge sheet and determine how they
relate to the offence for preparation.
D Check that the section 212 statements are in compliance with the relevan t
subsections and are properly commissioned or certified .
D Ensure that al l chain evidence, namely seal numbers, SAP13 numbers, etc.,
corresponds to the relevant witness' statements.
D Read all statements t horoughly to locate discrepancies.

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 Chapter 2: The trial

0 Balance all the above with the version the client has given for trial and then
determine what defence the law allows him/her to take and how he/she will
present the client's version and defence, in his/her best interests.
0 Not mislead the client by giving guarantees or certainties . The defence at-
torney is not a magician or a psychic, and is therefore not able to predict
what is going to happen for certain. It is preferable to tell the client that you
will defend him to the best of your ability.
0 Not make promises of what the sentence is going to be if the client is plead -
ing guilty, unless he/she has entered into a plea agreement in terms of sec-
tion lOSA of the Act, where the sentence has been agreed upon. Briefly,
section lOSA of the Act can be explained as follows:
• The public prosecutor informs the court about the agreement.
• The court will ask the accused to confirm such agreement.
• The court will satisfy itself that the investigating officer and complainant
have been consulted.
• If the court is satisfied that the investigating officer and the complainant
have been consulted, then the court will require that the accused plead
to the charge and order that the contents of the agreement be disclosed.
• The court will confirm with the accused the terms of the agreement and
the admissions made in the agreement, namely that :
- the accused admits the allegation to which he/she pleaded guilty;
- whether the agreement was entered into freely and voluntarily and in
the accused's sound and sober senses without him/her being unduly
influenced thereto;
- if the court is satisfied that the accused admits the allegation and is
guilty of such offence in the agreement, then the court will consider
the sentence agreement; and
- if the court finds the sentence agreement just, then the court will in-
form the prosecutor and the accused, convict the accused and pass
sentence as per the agreement.
While the author is (with respect) of the opinion that the foregoing proce-
dure is somewhat laborious, it has to be followed, as it is a peremptory
stipulation by law. In practice, the presiding officer is generally consulted
about the sentence before the case commences, to ascertain whether
he/she thinks that it is just or not, and so that if there are changes, they can
be made beforehand rather than in court, when the process has already be-
gun . In the author's view, this is a more practical and sensible approach.
The court ultimately has the final decision regarding the sentence to be im-
posed; the defence attorney has to mitigate to the best of his/her ability.
0 Always be vigilant when prosecutors are consulting with state witnesses.
They are not allowed to consult with more than one state witness at a time .

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 Confident Criminal Litigation

Should the defence attorney establish that this has actually transpired,
he/she should make the court aware of it. The court is then legally bound to
acquit the client, as it is improper to consult with all witnesses simultane-
ously- they may have heard other witnesses say things that influence their
memories of the course of events. See 5 v De Lange 1983 (4) SA 621 (ZS).
D It is also wise to note section 85 of the Act, which deals with various objec-
tions that the defence attorney can make before pleading to the charge, for
example, that the charge does not disclose an offence or does not comply
with the provisions of the Act.
D Once the trial proceeds the defence attorney should make detailed notes of
the evidence presented by the state, the questions asked by the state, the
questions put to the accused by the court, and all the replies. This will en-
sure that he/she has a proper record of the proceedings, especially when
matters are adjourned for long periods of time before finalisation. Detailed
notes make it much easier to recall and remember the case.
D By now the defence attorney should be well acquainted with all the state-
ments he/she has been given for further particulars. He/she should compare
the evidence in chief, namely the evidence given by the witness when led by
the prosecutor, to what is contained in the statement the witness has made.
D The defence attorney should make notes of what is included or excluded in
the statement; any contradictions or discrepancies. This is important for the
purpose of cross-examination.
D The defence attorney must observe the demeanour of a witness, taking note
of tension, apprehension, change of facial expressions, tone of voice, etc., as
this also could be helpful for the purpose of cross-examination.

2.4 Adjournments
The defence attorney should only agree to and apply for an adjournment when
there are reasonable or compelling grounds for doing so, for example ill health
or a death in the family of the accused. Adjournments increase the accused's
costs and delay the resolution of the case, sometimes indefinitely. Section 342A
of the CPA gives the court wide powers to investigate unreasonable delays in
trials. However, the defence attorney should always challenge the state's reason
for requesting an adjournment.
Note the decision in 5 v Molenbeek en Andere 1997 (12) BCLR 1779 (0), where
it was said that the accused's right to be represented by a legal practitioner of
his/her choice does not include the right to have a trial that has already being
set down for hearing postponed repeatedly because the prime choice of defence
attorney has become unavailable before a given trial date. The practitioner in-
structed has a duty to ensure that the defence will be ready to proceed on the
date for which the matter is set down. Should he/she become unavailable for

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 Chapter 2: THe trial

reasons other t han unforeseen circumstances, it becomes his/her duty to ma ke

other arrangements for the representation of the accused.
In the event of a state application for an adjournment, the defence attorney
must ensure that he/she participates in opposing the application, provided it is
warranted. For example, if the state applies for the matter to be adjourned in
order to call a witness, the defence attorney must ascertain the following details
and put them forward when opposing the remand :
D Is the witness a material witness?
D Is there a reasonable prospect of the witness attending the proceedings?
D Why is the witness not present in court?
D When did the state became aware of the existence of the witness?
D What length of adjournment is being sought?
D How long has the case been pending?
D How serious is the offence?
D Will an adjournment prejudice the accused, in respect of any or all of the fol-
lowing aspects:
• work, family responsibilities, period in custody, travelling costs, legal
fees, etc.
Note section 35(3)(d) of the Constitution, which provides that a fair trial includes
the right of an accused person to have his/her trial begin and conclude without
unreasonable delay.

2.5 Cross-examination of state witnesses

The court will tell the defence attorney to proceed with cross-examination once
the prosecutor has indicated to the court that he/she is finished leading the
witness on the evidence he/she wished to have adduced .
The defence attorney should rise and say "As it pleases the court" and pro-
ceed . Remember that the purpose of cross-examination is to:
D challenge and dispute all parts of the witnesses' evidence with which the de-
fence attorney disagrees;
D show that the witness may be honest but mistaken;
D elicit evidence favourable to the client' s case or detrimental to that of the
state;
D show that the witness is lying;
D put the client's version to the witness so that the witness can comment on
it; and
D canvass the improbabilities in the evidence of the witness.

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Confident Criminal Litigation

Remember that cross-examination must be effective. One need not engage in

laborious and lengthy cross-examination in the hope of breaking the witness
down over a period of time.
If the defence attorney requires time to collect his/her thoughts and go
through the evidence of the witness and statements before the cross-
examination, he/she should ask the court to have the matter stand down, by
saying "May it please the court, may the matter stand down before I proceed
with cross-examination?". The request will, as a general rule, be granted.
Once the defence attorney has gathered his/her thoughts and decided what
questions are going to be asked, he/she should remain calrr. and focussed.
He/she should thank the court for the indulgence of the stand down and pro-
ceed. It is vital to speak audibly and coherently so that all the parties can hear
what is being said. Also note that the proceedings are being recorded; therefore
the defence attorney must speak into the microphone.
The defence attorney should not ask a barrage of questions. It is unfair to ex-
pect a witness to remember all the questions and then answer them. Questions
should be kept as simple as possible and be phrased in language that is easily
understood by the witness.
The witness must always be given adequate time to reply to each question be-
fore the next question is posed. In addition, the court must be given time to re-
cord the questions and the replies given by the witness. If the defence attorney
notices that the court is still writing, he/she should wait a while before proceeding.
Cross-examination involves a game plan. The defence attorney should assess
the type of witness he/she is dealing with. For example, is the witness arrogant,
meek, nervous, fearful, shifty, etc., and exploit these qualities to obtain the
truth. Cross-examination should at all times be relevant.
Section 166 of the Act deals with cross-examination and re-examination of
witnesses. What is important to note is that section 166(3)(a) provides that:

... if it appears to a court that any cross-examination contemplated in this sec-

tion is being protracted unreasonably and thereby causing the proceedings to be
delayed unreasonably, the court may request the cross-examiner to disclose the
relevancy of any particular line of examination and may impose reasonable limits
on the examination regarding the length thereof or regarding any particular line
examination .

~ Note also section 170A(2)(aL which states that:

... no examination, cross-examination or re-examination of any witness in re-

spect of whom a court has appointed an intermediary under subsection (1) except
examination by the court, shall take place in any manner other than through that
intermediary.

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 Chapter 2: The trial

Section 227(2) of the CPA provides that:

.. . evidence as to the sexual intercourse by, or any sexual experience of any

female against or in connection with whom any offence of a sexual nature is
alleged to have been committed , shall not be adduced and such female shall not
be questioned regarding such sexual intercourse or sexual experience except with
the leave of the court, which leave shall not be granted unless the court is satis-
fied that such evidence or questioning is relevant: provided that such evidence
may be adduced and such female may be so questioned in respect of the offence
which is being tried.

Al so note section 210 of the Act, which makes provision for irrelevant evidence
to be inadmissible.
Once the defence attorney has established the temperament of the witness,
proceed to question him/her accordingly. If the witness is an elderly person,
have due respect to that fact. Be polite, courteous and patient with the witness.
The defence attorney will be surprised by how co-operative the witness will be if
treated well. The chances of the witness making concessions are higher if he/she
is shown respect, rather than being insulted or belittled . (Some people believe
that one attracts more bees with honey than vinegar!) .
Where the witness is arrogant or egotistical, robust cross-examination may be
called for. The defence attorney should exploit the arrogance of the witness to
show him/her up as a person who speaks too much, seeks attention, exaggerates,
or is biased or prejudicial. If the intention is to cross-examine a witness on his/her
statement, do so at the outset of the cross-examination, in order to get the for-
malities out of the way. By way of example, the following questions may be asked:
0 Did you make a statement to the police or in connection with this matter?
0 Is this the statement you made? (statement to be shown to the witness via
the court orderly)
0 Did you make it freely and voluntarily?
0 Did you read the contents of the statement or was it read back to you before
signing it?
0 Do you agree with the contents of the statement and its accuracy?
0 Is there anything that you have left out or is not correct?
0 Was the oath administered to you when you made the statement?
0 Do you understand that the contents of the statement constitute evidential
material?
The defence attorney should then proceed to cross-examine on the aspects
emanating from the witness' evidence in chief.
When cross-examining on the witness' statement, the defence attorney
should challenge the witness with the discrepancies in his/her statement as
compared to his/her evidence in chief, and ask for an explanation of such

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Confident Criminal Litigation

discrepancies . The defence attorney is also entitled to suggest reasons for t he

contradictions or discrepancies, for example that the witness is lying, mistaken,
has been told what to say, is biased or prejudiced against the accused, was neve r
at the scene, is making assumptions, etc.
The defence attorney must also be vigilant in respect of what the witness says
to the prosecutor in consultation . If he/she overhears the conversation, he/she
may cross-examine on that conversation if it differs materially from the evidence
in chief.
Cross-examination of witnesses should always be done in a fair manner. While
there are situations where robust cross-examination is called for, the defence at-
torney should guard against being vexatious, insulting, demeaning, belittling,
harassing or irrelevant. Cross-examination should be conducted with the inten-
tion of arriving at the truth and representing the client to the best of the defence
attorney's ability. Do not mislead a witness or repeat questions once a point has
been made. Do not indulge in so-called 'fishing expeditions' in the hope that the
witness will slip up.
Generally, when identity is in dispute, questions about a number of issues
such as the following may be asked to test the witness' powers of observation:
D visibility and lighting;
D proximity of persons;
D angle of observation;
D significant physical and facial marks and peculiarities;
D dress or attire;
D height;
D build;
D complexion or race, where applicable;
D ability to remember and perceive;
D impression made by the observation;
D possibility of imagination;
D identification parade;
D obstructions; and
D familiarity with the accused.
The above is not a closed list; it merely represents a number of factors worthy of
consideration. Bear in mind that the state has to prove the identity of the
accused beyond a reasonable doubt. The defence attorney's questions should be
asked in a way that could indicate the possibility of mistaken identity, since a
person can honestly be mistaken for someone else. Note too that there is a
distinction between the reliability and the credibility of the witness. The defence
attorney must create reasonable doubt through cross-examinati on . For example,
where a witness testifies that he/she saw the accused shoot the deceased, the

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 Chapter 2: The trial

defence attorney's questions (if the defence is one of alibi) should be centered
on the identity of the person, a description of the gun, whether the shot was
heard, whether the deceased was seen to be felled by the bullet, or whether the
sight of the gun led to the assumption that the gun was fired.
Once the defence attorney has completed his/her cross-examination on the
issues he/she wanted to cover, he/she should put his/her version of events to
the witness for comment. Failure to do so may result in an adverse inference be-
ing drawn against the accused. Refer to 5 v P 1974 (1) SA 581 (RA), in which it
was said that it would be difficult to over-emphasise the importance of putting
the defence's case to the prosecution witnesses, and that the possibility of a de-
nial is certainly not a reason for not doing so. The court is entitled to see and
hear the reactions of the witness.
In 5 v Van As 1991 (2) SACR 74 (W), the Court said that the accused's counsel
must put his/her case to the state witnesses . Failure to do so can in appropriate
cases justify an inference being drawn against the accused .
See also 5 v Fisher (ECD) CA 100/77 (an unreported decision delivered on
15 April 1980 by Smalberger AJ and Jennet JP), which dealt with inferences to be
drawn where the defence is not put to state witnesses in cross-examination. The
court said that the only inference which one can draw from the failure on the
part of the appellant's legal representative to put the appellant's defence along
the lines to which he testified at the trial is that it was not in accordance with the
instructions which had been given to him by the appellant for the preparation of
his defence. In view of the defence's failure to put this most vital part of the ap-
pellant's evidence, the magistrate was correct in rejecting the appellant's evi-
dence in this regard.
Also bear in mind that assertions put specifically and delibe rately to state wit-
nesses in cross-examination will amount to admissions for which no additional
formal proof will be necessary. See 5 v W 1963 (3) SA 516 (A) in this regard . See
also 5 v Math/are 2000 (2) SACR 515 (SCA).
In 5 v Mafu 2008 (2) SACR 653 (WLD), which dealt with inter alia the incompe-
tence of the legal representative acting on behalf of the appel lants and whether
such incompetence led to a failure of justice, the Court said that it was elemen-
tary and standard practice for a party to put to each opposing witness so much
of his own or the defence's case as concerns that witness and to inform him that
a witness may contradict him, in order to give such witness fair warning and an
opportunity of explaining the contradictions and defending his own character. It
is grossly unfair and improper to let the witness' evidence go unchallenged in
cross-examination and afterwards argue that he/she must be disbe lieved. Fail -
ure to put an accused's version to a state witness will generally be taken to
mean that the accused accepts the state witness' version. This much is trite and
constitutes a basic and elementary forensic skill which has to be learnt and mas-
tered by the most junior of defending counsel. The whole purpose of proper
cross-examination is to illicit from the opposing witness facts which are beneficial

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Confident Criminal Litigation

to the case of the cross-examiner's client and to put such client's opposing and
contradictory version to the witness.
Convictions based on solid evidence presented by state witnesses may have to
be set aside due to the incompetence of defending counsel, or a failure of jus-
tice, with the concomitant result that law-abiding complainants may justifiably
criticise the criminal justice system.
Effective legal representation entails that the legal adviser acts in the client's
best interests, saying everything that needs to be said in the client's favour, and
calling such evidence as is justified by the circumstances, in order to put the best
case possible before the court in the client's defence.
Legal assistance given to the accused must be real, proper and designed to
protect his/her interests. The legal representative has an obligation to conduct
the case in the interest of the client while simultaneously ensuring that his/her
inherent duty towards justice is maintained.
In order to be able to conduct a trial in such a manner, the legal representa-
tive has to acquaint him-/herself with the charges, the facts with which the ac-
cused is confronted and (more importantly) the accused's version of the events.
See also 5 v Halgryn 2002 (2) SACR 211 (SCA), where it was stated that:

... the constitutional right to counsel must be real and not illusory and an ac-
cused has, in principle, the right to a proper effective or competent defence ...
whether a defence was so incompetent that it made the trial unfair is once again
a factual question that does not depend on the degree of ex post facto dissatisfac-
tion of the litigant. Convicted persons are seldom satisfied with the performance
of their defence counsel. The assessment must be objective, usually, if not in-
variably, without the benefit of hindsight . . . the court must place himself in the
shoes of defence counsel, bearing in mind that the prime responsibility in con-
ducting the case is that of counsel who has to make decisions, often with little
time to reflect ... The failure to take certain steps such as failing to consult stands
on a different footing from the failure to cross-examine effectively or the decision
to call or not to call a particular witness. It is relatively easy to determine whether
the right to counsel was rendered nugatory in the former type of case but in the
latter instance, where counsel's discretion is involved, the scope for complaint is
limited.

Once cross-examination of the witness is concluded, the defence attorney must

inform the court that he/she has no further questions, and sit down. Remember
that the effect of a failure to cross-examine a witness on a particular point or
points may make it impossible to dispute the truth of that evidence later. Failure
to cross-examine generally implies acceptance of the evidence.
Also remember that the point of re-examination is to enable the witness to
explain answers given in cross-examination that may have led to a misleading
impression.

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 Chapter 2: The'trial

2.6 Limitation of cross-examination

The court can prevent cross-examination where:
D it is irrelevant, tedious, harassing or repetitive;
D attempts to elicit inadmissible evidence;
D is discourteous to a witness;
D is unfair;
D no basis has been laid for such cross-examination ;
D is vexatious, frivolous, abusive, insulting, degrading, defamatory, offensive,
intimidating, etc.
Once the prosecutor has closed the case for the state, the defence attorney may
choose to :
D apply for a section 174 discharge;
D close the case for the defence; or
D call the accused to testify.

2. 7 Calling of an accused to give evidence

The defence attorney must ensure that he/she has consulted properly with the
client, and make sure that the client is going to testify along the lines of the
instructions he/she gave regarding what to put to the witnesses. It is to be
hoped that the client and witness wil l give the same version of the events.
Where the instructions given to the defence attorney differ materially from
the accused's testimony, a duty rests upon the defence attorney to inform the
court that what was put to the witnesses was in accordance with the instruc-
tions given by the accused and that what the accused is now testifying is not part
of that instruction. See 5 v Boesman and Others 1990 (2) SACR 339 (E) .
The defence attorney may also apply to court to withdraw as attorney, if th e
deviation is of a serious nature .
When preparing the accused for trial, the following factors (amongst others)
should be discussed w ith the client:
D the court date;
D the dress code;
D the need to speak clearly and coherently;
D the risk of drawing conclusions;
D giving factual evidence;
D not giving an opinion unless asked for it;
D looking at the court when giving evidence;
D giving evidence sequentially, as it is easier for the court to follow what the
accused says;

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Confident Criminal Litigation

D the need to go through the client's statement;

D using the language in which the accused is most proficient;
D using short, simple sentences;
D not giving lengthy explanations when questions only require a yes/no answer;
D remembering what evidence is given in chief, and not changing versions or
giving answers to suit the questions;
D stating whether the client is unsure of, or does not know, the answer to a
question;
D not committing to an answer if the client is not confident about it;
D asking for a question to be repeated or simplifiP.d if the client does not un-
derstand the original version;
D not becoming argumentative with the court, prosecutor or the attorney;
D giving the same answer if a question is asked more than once (the defence
attorney must object, or the court will come to the client's assistance);
D not answering questions by asking questions;
D remaining calm and projecting a confident attitude;
D avoiding becoming unduly nervous and anxious; and
D asking for assistance if he/she is unsure about anything or does not know
what is expected.
Once the accused has testified, the defence attorney must call the defence
witnesses if they are available and necessary to the case. Failure to do so can
result in an inference being drawn against the accused .
In 5 v Mhlandzi 1982 (1) SA 193 (V), which dealt with the failure by accused to
call a witness, the Court said that the trial court must come to the conclusion
that that a reasonable man would really have expected the accused to have
called the witness under the specific circumstances, given that the witness was
available.
Similarly, an inference can also be drawn against the state for not calling a
witness. See 5 v Wiljon 1987 (1) PH H49 (A), which dealt with the failure of the
prosecution to call a witness and the effect thereof. The court came to the con-
clusion that the witnesses were not called by the state because they were not
going to corroborate the evidence of other witnesses.
Where the witnesses are not available on the date the matter is heard, the de-
fence attorney should apply for an adjournment to have them subpoenaed, or
request the court to direct the state to assist in getting the defence witness to
court in the interest of justice, especially where the accused is indignant. Where
all reasonable efforts made to call defence witnesses are futile, the defence at-
torney should place all such facts before the court on record.
It is imperative that the defence attorney does not create the impression that
he/she is not doing his/her best for the client, or is short-changing the client .

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 Cha pte r 2: The't ria l

2.8 The effect of closing a defence case without the

accused testifying
The author is of the opinion that the most important decision a defence attorney
can make for the accused is whether the accused should testify or remain silent,
especially when an application for a section 174 d ischarge has been refused.
The defence att orney should remember that the test at the section 174 stage
is whether a case was made out for the accused to meet or whether he/she is
dealing with a prima facie case . The test used when a case is closed is always one
of 'beyond a reasonable doubt' when the evide nce of t he state is being eval u-
ate d.
If the defence attorney is confident that no case has been made out against
the accused, it is advisab le to consult with the accused and decide whether to
close the case or not. Sometimes the decision is easy, for example, w here the
state fai ls to prove certain formal evidence by not han ding in analysis reports, or
chain evid ence is not proved. However, if the defence atto rne y is unsure of
his/h er case, it is better t o let the accused t est ify, if he/ she so desires.
The defence atto rney should bear the fol low ing cases in mind w he n maki ng
his/ her decision:
0 R v M ohr 1944 TPD 105, wh ere the fo llowi ng w as mentioned:

It is not easy for a court to come to a conclusion favourable to the accused as

to his state of mind unless he himself gives evidence on the subject.

0 S v Mthet w a 1972 (3) SA 766 (A), in wh ich th e Court said :

Where, however there is direct evidence implicating the accused in the com-
mission of the offence, his failure to give evidence whatever his reason may
be for such failure, in general ipso facto tends to strengthen the state case,
because there is nothing to gainsay it, and therefore less reason for doubting
its cre dibility or reliability.

0 S v Letsoko and Others 1984 (4) SA 268 (A), in which it was said that :

.. . where the accused fails to give evidence he takes the risk that his failure
can be taken into as a fact against him and further went on to say" . . . if there
is a prima facie case against the accused which he could answer if innocent,
the failure to answer it becomes a factor to be considered along with other
factors, and from the totality, the court may draw the inference of guilt.

0 S v Francis 1991 (1) SACR 198 (A), in which it was said that where an accused
f ails t o testify, it does not follow that the state' s evidence is necessarily true
or that the court is bound to acce pt it. The court has t o eval uat e the state's

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 Confident Criminal Litigation

evidence properly in order to determine whether it measures up to the

standard required for its acceptability. If it fails to measure up to that stan-
dard, failure of the accused to testify would not assist the state in the dis-
charge of its onus. Failure of the accused to testify is only a factor in deciding
whether his/her guilt has been proved where the state has prima facie dis-
charged the onus upon it.
The defence attorney should exercise great care when electing to have the
accused testify or not, because of the consequences that can ensue.

2.9 Section 174 discharge

Section 174 of the CPA provides that if, at the close of the state's case for the
prosecution at any trial, the court is of the opinion that there is no evidence that
the accused committed the offence referred to in the charge or any offence of
which the accused may be convicted, it may return a verdict of "not guilty".
"No evidence" has been held to mean "no evidence upon which a reasonable
man acting carefully may convict the accused". See 5 v Khanyapha 1979 (1)
SA 824 (A). Upon application of this test, the credibility of the state witness's
evidence is not normally relevant, except if it is of such poor quality that it can-
not be relied upon. In 5 v Mpetha 1983 (4) SA 262 (C), it was held that the credi-
bility of the state witness plays a very limited role in an application for a
discharge in terms of section 174. Where the credibility of a witness is so utterly
destroyed that no part of his/her material evidence can possibly be believed,
then such evidence must be dismissed, and discharge in terms of section 174 is
in order.
Section 174 also gives the court discretion to grant or not to grant the dis-
charge. In 5 v Lubaxa 2001 (2) SACR 703 (SCA), the Court held that an accused
person is entitled to be discharged at the close of the state's case for the prose-
cution if there is no possibility of a conviction. It would be a breach of the ac-
cused's constitutional rights if the possibility of conviction would only arise if
he/she were allowed to enter the witness box and incriminate him-/herself. The
court has no discretion herein but to grant a discharge in terms of section 174 of
the CPA.
The court can also, on its own accord (meru motu), grant a discharge in terms
of section 174 of the Act. See 5 v Mkhize and Another 1960 (1) SA 276 (N).
Also consider the provisions of section 35(3)(h) of the Constitution, which pro-
vides that the accused is to be presumed innocent and has the right to remain si-
lent and not to testify during the proceedings.
In 5 v Heller 1964 (1) SA 542 (W), it was said that the test for a section 174 dis-
charge is that there should be no evidence upon which a reasonable man might
convict. The court went on to say "no evidence" is to be understood to mean
"insufficient evidence for a reasonable man to convict upon".

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 Chapter 2: Thetria/

The South African Bill of Rights is closely modelled on a number of Canadian

case decisions, therefore such decisions may be used if necessary. In Dubois v R
(1986) 23 DLR (4) 503, it was said that in terms of the Canadian Bill of Rights, any
person charged with an offence has the right to be presumed innocent until
proven guilty according to law in a fair and public hearing, by an independent
and impartial tribunal. The prosecution has to make out a case against the ac-
cused before he/she needs to respond. This may be done by testifying or calling
witnesses to testify. The court indicated that the principle of a "case to meet" is
the real underlying protection which the non-compellability rule seeks to pro-
tect. The protection is not that the accused needs to testify, but that the prose-
cution must prove its case before there can be any expectation that the accused
will respond.
In 5 v lama and Another 1998 (4) BCLR 485 (N), it was said that when there is
no evidence implicating the accused in the commission of crime by the end of
the state's case, he/she should be discharged. The court does not have any dis-
cretion in such circumstances to refuse a discharge on the basis that evidence
given by the accused, if he/she is put to a defence, will augment that of the
state. An accused should accordingly be discharged if there is no evidence upon
which a reasonab le person might conv ict the accused by the end of the state's
case.
In 5 v Mathebula and Another 1997 (1) SACR 10 (WLD), the Court said :

. . . in short, exercising a discretion in favour of the state under the circumstances

of this case in terms of section 174 in my view, denies the accused his right to a
fair trial. To my mind, the spirit, purport and objects of our Constitution can lead
to no other conclusion [than] that the concept of a fair trial in these circum-
stances means that one can justly and fairly say to the state "you had your chance
to prove the accused's guilt. You failed to prove a prima facie case against the
accused".

The defence attorney may also argue that the credibility of the state wit nesses
has palbably broken down in such a manner that no reasonable court will
convict. He/she should be alert to wh ether all the elements of the offence have
been proved, especially the chain evidence. Where no evidence links the
accused to the crime, the defence attorney should request a discharge.
However, he/she should always motivate his/her application for discharge by
referring to case law where applicable, and avoid frivolous applications.

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