IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION) Case no: 15/2014 THE STATE versus SHRIEN PRAKASH DEWANI THE STATE’S PRINCIPAL SUBMISSIONS IN OPPOSING THE SECTION 174 APPLICATION A. INTRODUCTION 1. The accused is charged with the five offences (counts) listed in the Indictment, namely: 1.1 Count 1 - Contravening Section 18(2)(A) of the Riotous Assembly Act, No. 17 of 1956 - conspiracy to commit kidnapping, robbery with aggravating circumstances and murder; 1.2. Count 2 - kidnapping; 1.3. Count 3 - robbery with aggravating circumstances; 1.4 Count 4 - murder; and 1.5 Count 5 - obstructing the administration of justice.2. The State presented the evidence of 16 witnesses and closed its case. 3. The accused now applies for his discharge in terms of section 174 of the Criminal Procedure Act*. 4, The State opposes the application. B. THE LEGAL FRAMEWORK 5. The provisions of section 174 of the Criminal Procedure Act reads: ‘If at the close of the 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 he may be convicted on the charge, it may return a verdict of not guilty.’ 6. The words ‘no evidence’ have been interpreted to mean no evidence upon which a reasonable man (court), acting carefully, may convict. SEE: v Mpetha 1983 A 26: i v Swartz and Another i (1) SACI 4 (W). 7. It should be emphasized that the test is not should a reasonable man convict but may convict. SEE: Du Toit et a/ - Commentary on the Criminal Procedure Act at 22-37F * Act 51 of 1977 as amended8. In arriving at a decision whether an accused person could or may be discharged at the close of the state case it is accepted that the credibility of the state witnesses should be taken into account at this stage. SEE: S v Mpetha and Others (supra) 9. In S v Mpetha (supra) Williamson J held at at 265E-G that credibility would play only a very limited role and the evidence ignored only if it was of such a poor quality that no reasonable person could possibly accept it: “However, it must be remembered that it is only a very limited role that can be played by credibility at this stage of the proceedings. If a witness gives evidence which is relevant to the charges being considered by the Court then that evidence can only be ignored if it is of such poor quality that no reasonable person could possibly accept it. This would really only be in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his material evidence can possibly be believed. Before credibility can play a role at all it is a very high degree of untrustworthiness that has to be shown. It must not be overlooked that the triers of fact are entitled “while rejecting one portion of the sworn testimony of a witness, to accept another portion”. See R v Kumalo 1916 AD 480 at 484. Any lesser test than the very high one which, in my judgment, is demanded would run counter to both principle and the requirements of s 174.” (Emphasis added)