Seven men, including the appellant Michael Lubaxa, travelled together from Cape Town to Port Nolloth. Two occupants of a house in Port Nolloth, Joao Carlos Moutinho and Vivian Lotz, were shot dead and various items, including a BMW motor vehicle and money from a safe, were stolen. The perpetrators fled in the stolen vehicle and later regrouped with the rest of the group. Lubaxa and others were charged with murder, robbery with aggravating circumstances, and theft. At trial, Lubaxa applied for a discharge at the close of the States case under s 174 of the Criminal Procedure Act, which was refused. He was convicted of two counts of murder, robbery, and theft, and sentenced to life imprisonment on the murder counts. He appealed against his convictions and sentences.
Appeal upheld in part: the convictions and sentences for murder and robbery were set aside. The appeal against the conviction and sentence for theft was dismissed, and the five-year sentence for theft was confirmed.
This case is a leading authority on the application of s 174 of the Criminal Procedure Act in the constitutional era. It clarifies when an accused is entitled to a discharge at the close of the States case and emphasises that an accused should not be placed on their defence where a conviction is only possible through self-incrimination. It also provides important guidance on the limits of inference, common purpose, and proof beyond reasonable doubt in serious criminal cases.