STATE VERSUS SHRIEN DEWANI

In S v Dewani (CC15/2014) [2014] ZAWCHC 188 (8 December 2014) Deputy Judge President Traverso set out the contents of the right of an accused person to be discharged at the closing of the case for the State in paragraph [12]:

The right to be discharged at that stage of trial does not necessarily arise, in my view, from considerations relating to the burden of proof (or its concomitant, the presumption of innocence) or the right of silence or the right not to testify, but arguably from a consideration that is of more general application. Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law principle that there should be ‘reasonable and probable’ cause to believe that the accused is guilty of an offence before a prosecution is initiated (Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 135C-E), and the constitutional protection afforded to dignity and personal freedom (s 10 and s 12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights protected by s 10 and s 12.”

She summarized the legal position in paragraph [15]:

(c) Where the evidence of the State witnesses implicating the accused is of such poor quality that it cannot safely (be) relied upon, and there is accordingly no credible evidence on record upon which a court, acting carefully, may convict, an application for discharge should be granted.

She further stated

[16] It is common cause that the only witness who could implicate the accused was Tongo (who was an accomplice witness).

[21] Therefore the images in the CCTV footage (to which I will refer in more detail later) depicting:

(a) The accused meeting with Tongo at the parking lot at the Cape Grace Hotel on Friday, 12 November 2010;

(b) The accused being picked up by Tongo on Saturday morning, 13 November 2010 at the Cape Grace Hotel;

(c) The accused being dropped off again by Tongo later on that Saturday morning at the Cape Grace Hotel;

(d) The accused and the deceased being picked up by Tongo on Saturday evening at the Cape Grace Hotel;

(e) The accused talking to Tongo after the incident on Sunday, 14 November 2010;

(f) The accused paying Tongo R1 000,00 in the communications room on Tuesday, 16 November 2010; do not provide any corroboration for the version of Tongo where it differs from that of the accused set out in his plea explanation, as none of these events are in issue. It is what was said during those events that is in issue and for that there is only the version of Tongo.

[22] The same applies to the telephone communication between the accused and Tongo, and between Tongo and Mbolombo and Qwabe. This telephone communication does not in itself corroborate what was said during those calls, it merely confirms that communication took place.

After evaluating the evidence she decided

“Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law principle that there should be ‘reasonable and probable’ cause to believe that the accused is guilty of an offence before a prosecution is initiated (Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 135C-E), and the constitutional protection afforded to dignity and personal freedom (s 10 and s 12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold.”

The evidence presented by the State in this case falls far below this threshold.

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