IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case No:  372/2000
In the matter between:
MICHAEL LUBAXA
Appellant
and
THE STATE
Respondent
Coram:
Harms, Scott, Mpati, JJA, Conradie and Nugent, AJJA
Heard:
31 August 2001
Delivered: 25 September 2001
Summary:
Criminal procedure – discharge at close of prosecution case – when required
- whether on facts appellant proved to be guilty.
J U D G M E N T

NUGENT, AJA:
[1] Near to the alluvial diamond deposits of the remote west coast is the
small town of Port Nolloth.   Almost directly east of Port Nolloth, in the arid
interior of Namaqualand, is Steinkopf, situated on the main road linking Cape
Town to Namibia.   To the south along that road is Springbok, and beyond that
Vanrhynsdorp.
[2] On the night of Friday 15 May 1998 a white minibus drew up in
Sizamile, a township on the outskirts of Port Nolloth.  There were seven men
in the minibus amongst whom was the appellant.  The minibus remained in
Sizamile until the following night at about 8.00 pm when the men drove off in
it together.
[3] At that time Mr Joaó Carlos Moutinho  and his girlfriend, Ms Vivian
Lotz, were alone in a house in Port Nolloth watching television. Moutinho was

a resident of Namibia but he frequently visited Port Nolloth for extended
periods. His BMW motor vehicle was parked in a carport alongside the house.
Shortly after 9.00 pm they were both shot dead by one or more of the seven
men.  Lotz was shot three times and Moutinho was shot seven times.  All the
shots might have been fired from the same pistol.
[4] The murderer or murderers drove off in Moutinho’s motor vehicle
towards Sizamile.  There were five men in the vehicle as it approached the
township.  The other two men, meanwhile, had been waiting in the minibus in
an open area alongside the road just outside Sizamile.  As the motor vehicle
approached them its lights were flashed, then it stopped, turned  around, and
drove for a short distance into the township.  It then turned around again and
sped off in the direction of Steinkopf.  The minibus followed after it.

[5] Approximately midway between Port Nolloth and Steinkopf the motor
vehicle was driven off the road and abandoned.   The five occupants flagged
down a passing motorist who drove them to Steinkopf.  They explained to him
that their bus had inadvertently passed them by.  At Steinkopf they persuaded
the motorist to drive them on to Springbok where they were left at the home
of a certain Mr Dawid van Rooyen, who in turn drove them to Vanrhynsdorp.
There they were reunited with their two companions who were waiting with
the minibus at a petrol station.
[6] The bodies of Moutinho and Lotz were discovered in the house the
following morning.  Lotz was sprawled face-down on the floor of one of the
bedrooms alongside a cupboard in which there was a safe.  Moutinho was
probably alongside the safe at the time that he was shot, but managed to make
his way to the main bedroom before he succumbed, and his body was found

lying on the bed.  On the wall, immediately above the bed, the word “cowboy”
was scrawled in blood.  Apart from the motor vehicle, various items of property
belonging to Moutinho were stolen from the house, including money that had
been in the safe.
[7] The appellant and six others were arrested and indicted in connection
with the crimes.  By the time the matter came to trial two of them (Mr Andile
Nqwata and Mr Michael Vhara) had died.  The remaining five were tried in the
Cape of Good Hope High Court before N. Erasmus AJ and an assessor.   One
of the accused (the second accused) was acquitted of all the charges, and
another (the first accused) was convicted only of theft of the motor vehicle.
The appellant and the fourth and fifth accused were convicted of two counts
of murder, robbery with aggravating circumstances, and theft.  They were each
sentenced to two terms of life imprisonment for the crimes of murder, twenty

years’ imprisonment for robbery, and five years’ imprisonment for theft (to run
concurrently with the sentence for robbery). The trial court granted the
appellant leave to appeal to this Court against the convictions and the sentences.
[8] The facts that I have outlined thus far all emerged, directly or by
inference, from the prosecution evidence.  When the prosecution closed its case
all the accused applied to be discharged in terms of s174 of the Criminal
Procedure Act  51 of 1977.  The applications were refused.  One of the
grounds of  appeal, and indeed the principal reason why leave to appeal was
granted, is that the trial court is said to have misdirected itself by refusing to
discharge the appellant at that stage of the trial.
[9] The refusal to discharge an accused at the close of the prosecution’s case
entails the exercise of a discretion and cannot be the subject of an appeal
(Hiemstra Suid-Afrikaanse Strafproses 5de uitg deur Kriegler bl 825).  The

question that is raised in this appeal against the conviction, however, is whether
s 35(3) of the Constitution, which guarantees to every accused person the right
to a fair trial, has removed that discretion.  If it has, and the trial court was
bound as a matter of law to discharge the appellant in the interests of a fair trial,
then the failure to do so would amount to an irregularity which may vitiate the
conviction.
[10] Section 174 of the Act repeats in all material respects the terms of its
predecessors in the 1917 and 1955 Criminal Codes.  It permits a trial court to
return a verdict of not guilty at the close of the case for the prosecution if the
court is of the opinion that there is no evidence (meaning evidence upon which
a reasonable person might convict: S v Khanyapa 1979 (1) SA 824 (A) at 838F-
G) that the accused committed the offence with which he is charged, or an
offence which is a competent verdict on that charge.

[11] If, in the opinion of the trial court, there is evidence upon which the
accused might reasonably be convicted, its duty is straightforward - the accused
may not be discharged and the trial must continue to its end.  It is when the trial
court is of the opinion that there is no evidence upon which the accused might
reasonably be convicted that the difficulty arises.  The section purports then to
give the trial court a discretion - it may return a verdict of not guilty and
discharge the accused there and then; or it may refuse to discharge the accused
thereby placing him on his defence.
[12] The manner in which that discretion is to be exercised has always been
controversial (see R v Kritzinger and Others  1952 (2) SA 401 (W); R v
Herholdt and Others (3) 1956 (2) SA 722 (W); R v Mall and Others (1) 1960
(2) SA 340 (N); S v Heller and Another (2) 1964 (1) SA 524 (W) esp. 542G-
H).   In S v Shuping and Others  1983 (2) SA 119 (B) Hiemstra CJ reviewed

the differing approaches that had been taken by other courts until then and
concluded that a trial court ought to act as follows (at 120H – 121I):
“At the close of the State case, when discharge is considered, the first
question is: (i) Is there evidence on which a reasonable man might
convict; if not (ii) is there a reasonable possibility that the defence
evidence might supplement the State case?  If the answer to either
question is yes, there should be no discharge and the accused should be
placed on his defence”.
[13] Although that formulation has probably been applied in countless
subsequent cases it has not met with universal approval (e.g. S v Phuravhatha
and Others 1992 (2) SACR 544 (V); Skeen: ‘The Decision to Discharge an
Accused at the Conclusion of the State Case: A Critical Analysis’ 1985 (102)
SALJ 286) and since the advent of the new constitutional order it has been said
on various occasions that it is in conflict with the accused’s right to a fair trial
and cannot be sustained (e.g. S v Mathebula and Another 1997 (1) SACR 10

(W) but cf. S v Makofane 1998 (1) SACR 603 (T); S v Jama and Another 1998
(4) BCLR 485 (N); Schwikkard Presumption of Innocence 125 - 129; Schmidt
Bewysreg 4de uitg 94 – 97; Du Toit et al: Commentary on the Criminal
Procedure Act 22-32F 22-32I).
[14] The criticism of Shuping’s case relates to the second leg of the enquiry,
which permits an accused person to be placed on his defence, even when there
is no case to answer, merely in the expectation that “the defence evidence”
might supplement the prosecution’s case.   To place the accused on his defence
in those circumstances has usually been said to conflict with the presumption
of innocence (which is a concomitant of the burden of proof: per Kentridge J
in S v Zuma 1995 (2) SA 642 (CC) at par 33), or to infringe the accused’s right
of silence and his freedom to refrain from testifying (e.g. S v Mathebula, supra,
at 35c; Schwikkard, at 129; Schmidt, at 95).

[15] The prosecution’s case is capable of being supplemented by “defence
evidence” in either of two ways and it is important to distinguish them.  The
accused might enter the witness box and proceed to incriminate himself (that
possibility arises typically, but not exclusively, when the accused is tried alone);
or where there is more than one accused, he might be incriminated by a co-
accused.
[16] It has been said that in the former case the remedy of the accused is in
his own hands because “all he has to do is to close his case” and that if he
chooses to give incriminating evidence he has only himself to blame (R v Mkize
and Others 1960 (1) SA 276 (N) at 281G-H) but I think that is too simplistic
an approach to the position in which an accused person finds himself, and
ignores the reality of most criminal trials in this country.    To properly make
the decision to close his case the accused needs first to make an accurate

assessment of the weight of the evidence for if he miscalculates on that score
he has no second chance.  Then he needs to be sufficiently familiar with the
nature of the burden of proof to appreciate that he is not at risk if he fails to
testify.  There must be very few criminal defendants in this country (most of
whom are unrepresented at their trials) who are up to the task.
[17] In a number of cases, some of which were decided before the
Constitution came into force, it has been held that it is the duty of a trial court
in those circumstances mero motu to discharge an unrepresented accused (S v
Peta 1982 (4) SA 863 (O); S v Zulu 1990 (1) SA 655 (T); S v Amerika 1990
(2) SACR 480 (C); S v Mashele 1990 (1) SACR 678 (T); cf S v Makofane
1998 (1) SACR 603 (T) which is more qualified).   The rationale for those
decisions was little more than the profound sense of injustice that is evoked by
the spectacle of an accused bringing about his own conviction solely through his

unfamiliarity with legal procedure.  More recently it was said in this Court that
if there is such a duty it extends also to an accused who is represented (S v
Legote and Another 2001 (2) SACR 179 (SCA) and that must indeed be so.

[18] I have no doubt that an accused person (whether or not he is
represented) is entitled to be discharged at the close of the case for the
prosecution if there is no possibility of a conviction other than if he enters the
witness box and incriminates himself.   The failure to discharge an accused in
those circumstances, if necessary mero motu, is in my view a breach of the
rights that are guaranteed by the Constitution and will ordinarily vitiate a
conviction based exclusively upon his self-incriminatory evidence.
[19] The right to be discharged at that stage of the 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.
[20] The same considerations do not necessarily arise, however, where the
prosecution’s case against one accused might be supplemented by the evidence
of a co-accused.  The prosecution is ordinarily entitled to rely upon the
evidence of an accomplice and it is not self-evident why it should necessarily
be precluded from doing so merely because it has chosen to prosecute more
than one person jointly. While it is true that the caution that is required to be
exercised when evaluating the evidence of an accomplice might at times render
it futile to continue such a trial (Skeen, supra, at 293 ) that need not always be
the case.

[21] Whether, or in what circumstances, a trial court should discharge an
accused who might be incriminated by a co-accused, is not a question that can
be answered in the abstract, for the circumstances in which the question arises
are varied.  While there might be cases in which it would be unfair not to do so,
one can envisage circumstances in which to do so would compromise the
proper administration of justice.  What is entailed by a fair trial must necessarily
be determined by the particular circumstances.   In the present case those
circumstances do not exist, for the reasons that follow, and I do not think it is
appropriate to deal with the problem.
[22] The learned judge a quo appears to have relied upon Shuping’s case to
guide him in reaching his decision but the manner in which it was applied is not
altogether clear.  The learned judge must have been of the opinion that there
was no evidence upon which the appellant might reasonably be convicted (a

finding to which I will return) for he then purported to exercise a discretion
against discharging him.  As to the grounds upon which he exercised that
discretion the learned judge said no more than the following:
“ … by die uitoefening van hierdie diskresie moet die Hof bepaal of op
die totaliteit van die getuienis aan die einde van die saak reg behoort te
geskied.  Ek het derhalwe my diskresie uitgeoefen en ontslag vir al die
beskuldigdes geweier … “
[23] What the learned judge might have had in mind is nevertheless not of
any moment because he ought not to have concluded that he was called upon
to exercise a discretion in the first place.   Clearly there was evidence upon
which a court might reasonably have convicted the appellant (and all his co-
accused) and the appellant was for that reason not entitled to be discharged.
[24] The evidence presented by the prosecution, which I summarised earlier,
justified an inference, in the absence of an alternative explanation, that all the

accused associated in a common purpose to commit the crimes.  Their arrival
together in Port Nolloth, their continued association until the following night,
their departure together shortly before the crimes were committed, their
departure together after the crimes were committed, and their rendezvous at
Vanrhynsdorp, without any sign of disassociation by any of them, all point to
collaboration in a plan to rob and murder the deceased.  There was nothing in
the evidence that was inconsistent with that construction, nor did the evidence
suggest that there might be another.  If anything was lacking in the evidence at
that stage it was an innocent explanation.  I do not think the appellant can be
said to have been denied a fair trial in the circumstances by being placed on his
defence and the appeal on that ground must accordingly fail, but for the reasons
that follow that is not decisive of this appeal.

[25] An account was indeed forthcoming from the evidence of the appellant
and two of his co-accused.  The salient features of that account emerged from
the evidence of the first accused.  What emerged is that Moutinho was an illegal
dealer in diamonds.  He had often in the past purchased diamonds from the
fourth accused, who once worked at a diamond mine on the west coast, where
he mastered the art of pilfering diamonds.  He regularly sold his pilfered
diamonds to Moutinho and at times introduced him to other sellers.  Accused
four was known in Namaqualand by a name which was spelt “Karboy” in the
record, but which might just as well have been spelt “Cowboy” (the word that
was written in blood on the wall above Mr Moutinho’s bed) bearing in mind
how that word would sound when pronounced in an accent common in this
country.  At the time the fourth accused was unemployed and living on the
Cape peninsula, which is also where all the other accused lived.

[26] The first accused was a taxi driver by occupation.  On an occasion he
was approached by the deceased accused, Nqwata, who said that he had
diamonds to sell and sought the assistance of the first accused to find a buyer.
The first accused had no knowledge of such matters but thought that the
second accused might be able to assist and he introduced him to Nqwata.  The
second accused in turn took them to meet the fourth accused.  The fourth
accused telephoned Moutinho, and upon establishing that he was interested in
purchasing the diamonds, told the others that they would have to travel to Port
Nolloth to transact the sale.   The first accused agreed to drive them to Port
Nolloth for a fee which was to be paid once the transaction had been
concluded.  Vhara was a friend of the first accused who often accompanied him
on long trips and the first accused invited him along. The first accused
coincidentally met up with the appellant who decided to go along for the ride.

The fifth accused was introduced by Nqwata, and the party of seven left for
Port Nolloth.
[27] They arrived in Sizamile as I have described and spent the remainder of
that night and the following day in inconsequential activities.   The fourth
accused contacted Moutinho and arranged that they would visit him at his
house in order to transact the sale.  Moutinho told him not to arrive by vehicle
for fear that it might attract the attention of the police.  There is some conflict
in the evidence of the accused as to the manner in which they left Sizamile that
night, and what they did immediately thereafter, but at some stage two of them
(Vhara and the second accused) remained with the minibus while the other five
proceeded on foot to Moutinho’s house.   At that stage, at least, their intention
was only to sell the diamonds.

[28] That explanation for the visit to Moutinho’s house might sound
somewhat suspect, particularly in view of what occurred thereafter, but the trial
court found that it might reasonably be true and that must necessarily be the
starting point for assessing the remaining evidence.
[29] There is conflicting evidence as to what occurred after the five men
arrived outside the house.   According to the first accused, the fourth accused
announced that only those who were directly involved in the transaction should
enter the house, and accordingly he (the first accused) remained outside while
the other four proceeded towards the entrance of the house.  His evidence that
he (the first accused) remained outside the house was supported by the fourth
and fifth accused.  However the appellant said that he too remained outside the
house with the first accused, and in that respect his evidence was supported by
the fifth accused, but not by the first and fourth accused.

[30] The accounts given by the fourth and fifth accused of what occurred
inside the house bear little resemblance to one another.   Both said that they and
Nqwata (the fourth accused also included the appellant) were admitted to the
house by Moutinho and were introduced to him by the fourth accused.  They
proceeded to the sitting room, where they sat down, and Nqwata produced the
diamonds.   After examining the diamonds Moutinho enquired what the price
was, to which Nqwata responded that he wanted R100 000.   Moutinho said
that he was not prepared to pay more than R60 000 and some discussion then
ensued.   From that point on the evidence of the fourth and fifth accused
diverges considerably, both from that of the other as well as from reality.
[31] The fourth accused said that Nqwata and the fifth accused suddenly
drew firearms and confronted Moutinho.  When he (the fourth accused)
attempted to intervene the appellant pressed a firearm to his head.   He was

then tied up while the other three robbed and murdered the deceased.  He was
then forced into Moutinho’s motor vehicle.  The fifth accused, on the other
hand, said that it was Nqwata alone who robbed and murdered the deceased,
and that he and the fourth accused were forced to lie on the floor while this was
taking place.  The evidence of both the fourth and fifth accused was rejected
by the trial court, and for good reason - the explanations given by both of them
were far-fetched.
[32] The trial court found that although the evidence of the first accused was
not altogether satisfactory, and in some respects his evidence was untrue, it was
nevertheless reasonably possible that at the time the men arrived at the house
they shared no common purpose to commit murder and robbery: it was also
reasonably possible that the first accused remained outside the house.   On
those grounds the first accused was not convicted of murder and robbery but

only of theft (insofar as he associated himself with the others after the vehicle
had been stolen.)   On similar grounds the second accused was not convicted
at all.
[33] With regard to the appellant, the trial court found that he was present in
the house when the crimes were committed, and it inferred from “al die
voorafgaande omstandighede en feite wat gevolg het tot die moordtoneel” that
the appellant associated himself with the events that occurred inside the house.
Precisely what facts and circumstances the trial court had in mind was left
unexplained.   It is difficult to see what preceding facts and circumstances could
have established a common purpose that was shared by the appellant but not
by the first and second accused.  However it is not necessary to consider that
aspect of the finding because in my view the trial court erred in any event in

finding that the appellant was present in the house. [34]
On that issue the
reasoning of the trial court was expressed as follows:
“Indien al die getuienis in geheel evalueer word, is ons tevrede dat
beskuldigde 1 se weergawe redelik moontlik waar is in soverre sy
aanwesigheid ten tyde van die pleging van die moord aanbetref.  Dit volg
uit hoofde van hierdie feitebevinding dat ons bo redelike twyfel oortuig
is dat beskuldigdes 1, 3, 4 en 5 en Andile na die moordhuis was op 16
Mei 1998.  Beskuldigde 1 het buite gewag terwyl die ander die woning
genader het.  Beskuldigdes 3, 4, 5 en Andile het die woning binnegegaan
… “ [my emphasis].
[35] That reasoning is manifestly unsound.  Accepting that the evidence of the
first accused might reasonably be true what follows is not that the appellant was
in the house, but only that he might have been in the house, and the evidence
of the first accused provided no basis for finding as a fact that he was.  The
only other evidence that the appellant was in the house emanated from the
fourth accused and could not be relied upon at all.  What the trial court was left

with, then, was only evidence that the appellant was possibly in the house.  In
the absence of a prior common purpose (a finding which the trial court
disavowed) that evidence was insufficient to convict the appellant of murder or
robbery.
[36] As for the remaining charge of theft (which is a continuing offence) on
his own account the appellant actively associated with those who were
committing the offence by entering the vehicle when he could not but have
known that the vehicle had been stolen.   On that charge he was correctly
convicted.   It was not suggested in argument that any grounds exist for
interfering with the sentence of five years’ imprisonment that was imposed on
that charge.
Accordingly

(a)
the appeal against the convictions on charges 1 and 2 (murder) and
charge 3 (robbery) is upheld and the convictions and sentences imposed on
them are set aside.
(b)
The appeal against the conviction and sentence on charge 4 (theft) is
dismissed.
______________
NUGENT, AJA
Harms         JA)
Scott           JA)
Mpati          JA)
Conradie  AJA)
concur