WEIGHT OF EVIDENCE : PART 1

Evidence is either admissible or inadmissible. Evidence cannot

be more or less admissible. Once admissible, however it may
carry more or less weight according to the circumstances of the
case. The court weighs or evaluates evidence to determine
whether the standard proof had been attained, It is only after
the evidence has been admitted and at the end of the trial that
the court will have to assess the final weight of the evidence.
(see: South African Law of Evidence:2 ed( 2009)
chapt 2 Basic Concepts and Distinctions

SECTION 174 OF THE CRIMINAL PROCEDURE ACT 51 OF 1997

“If at the close of the prosecution at any trial the court is of the
opinion that there is no evidence that the accused committed the
offence referred to I the charge or any offence of which he maybe
convicted on the charge it may return a verdict of not guilty’

Trite – “no evidence” does not mean no evidence at all but rather no
evidence on which a reasonable court will convict.
In S v Mathebula & Others 1997 (1) SACR 10 (WLD)
Claasen J held “ exercising a discretion in favour of the State under the
circumstances of this case in terms of S174 would deny the accused the
right to a fair trial. To my mind,the spirit and purport and objects of the
Chapter 3 of our Constitution can lead to no other conclusion but that
the concept of a fair trial in these circumstances that one can justify
and fairly say to the State “ you had a chance to prove the accused
guilt. You failed to prove a prima facie case against the accused or the
co-accused assistance to do what you couldn’t do”.

S v Mpetha, Supra
Relevant evidence can only be ignored if it such poor quality that no
reasonable person could possibly accept.

S v Lubaxa 2000 37 SCA 100(A)

If there is no possibilty of a conviction other than if the accused enters
the witness box and incriminates himself he is entitled to a discharge.

SELF ASSESSMENT:
1, Explain the concept “weight of evidence” (4)
2. What is the test in a S174 application? Substantiate your answer
Using relevant case law. (16)
FURTHER NOTES:
1. Research all the case law above and familiarize yourself with
the facts of the case.
2. Read the following cases:
2.1 S v Naidoo 1998 (1) BCLR 46D
2.2 S v Hammer & Others 1994 (2) SACR 496 (C)