Michael Lubaxa v The State

On 16 May 1998, seven men arrived in Port Nolloth in a white minibus. That night, Mr Joaó Carlos Moutinho and Ms Vivian Lotz were shot dead in a house in Port Nolloth. Lotz was shot three times and Moutinho seven times. Moutinho's BMW was stolen along with other property including money from a safe. The word "cowboy" was scrawled in blood on the wall above the bed. Five men drove off in the stolen vehicle, while two waited in the minibus. The five occupants abandoned the vehicle midway to Steinkopf and were driven to Vanrhynsdorp where they reunited with their two companions. The appellant and six others were arrested and charged. Two accused died before trial. At trial, the second accused was acquitted of all charges, the first accused was convicted only of theft of the vehicle, while the appellant and the fourth and fifth accused were convicted of two counts of murder, robbery with aggravating circumstances, and theft. The defence evidence suggested the visit was to sell diamonds to Moutinho, an illegal diamond dealer. The trial court accepted it was reasonably possible the accused had no common purpose to commit murder and robbery when they arrived at the house.

• Whether the appellant should have been discharged at the close of the prosecution case under section 174 of the Criminal Procedure Act 51 of 1977
• Whether section 35(3) of the Constitution (right to a fair trial) affects the discretion to discharge under section 174
• Whether the second leg of the test in S v Shuping (permitting placing an accused on defence in expectation defence evidence might supplement the State case) conflicts with constitutional rights
• Whether the trial court erred in finding the appellant was present inside the house when the crimes were committed
• Whether the evidence was sufficient to convict the appellant of murder and robbery

The appeal against the convictions on charges 1 and 2 (murder) and charge 3 (robbery with aggravating circumstances) was upheld and those convictions and sentences were set aside. The appeal against the conviction and sentence on charge 4 (theft) was dismissed. The sentence of five years' imprisonment for theft remained.

The binding legal principles established are: (1) Under section 174 of the Criminal Procedure Act, an accused may not be discharged if there is evidence upon which a reasonable person might convict, based on the totality of the prosecution evidence. (2) An accused person (whether represented or unrepresented) is constitutionally entitled to be discharged at the close of the prosecution case if there is no possibility of conviction other than through self-incrimination by entering the witness box. The failure to discharge in such circumstances breaches constitutional rights and will ordinarily vitiate a conviction based exclusively on self-incriminatory evidence. (3) This right arises from the constitutional protection of dignity and personal freedom (sections 10 and 12 of the Constitution) - a prosecution should not continue below the threshold of minimum evidence merely in expectation of self-incrimination, just as a prosecution should not commence without reasonable and probable cause. (4) A finding that one accused's evidence is reasonably possibly true regarding certain facts does not constitute proof beyond reasonable doubt of contrary facts concerning another accused. Proper logical reasoning is required when drawing inferences from accepted evidence.

The Court made several important non-binding observations: (1) Nugent AJA noted that the question of whether or in what circumstances a trial court should discharge an accused who might be incriminated by a co-accused cannot be answered in the abstract as circumstances vary. While there might be cases where it would be unfair not to discharge, there are circumstances where doing so would compromise the proper administration of justice. What constitutes a fair trial must be determined by particular circumstances. The Court deliberately did not resolve this issue as it did not arise on the facts. (2) The Court observed that to properly decide whether to close his case, an accused needs to accurately assess the weight of evidence and be sufficiently familiar with the burden of proof to appreciate he is not at risk if he fails to testify. Very few criminal defendants in South Africa (most of whom are unrepresented) are up to this task, highlighting the reality of criminal trials in the country. (3) The Court noted that while the prosecution is ordinarily entitled to rely on accomplice evidence, and it is not self-evident why it should be precluded from doing so merely because it prosecutes more than one person jointly, the caution required when evaluating accomplice evidence might at times render it futile to continue such a trial. (4) The Court expressed doubt about the simplistic view that an accused has only himself to blame if he gives incriminating evidence since "all he has to do is close his case", noting this ignores the reality of most criminal trials in South Africa.

This case is significant in South African criminal procedure law for clarifying the constitutional dimensions of section 174 discharge applications. It establishes that: (1) An accused has a constitutional right to be discharged at the close of the prosecution case if conviction is only possible through self-incrimination, based on sections 10 and 12 of the Constitution (dignity and personal freedom) rather than solely burden of proof principles. (2) The duty to discharge in such circumstances extends to both represented and unrepresented accused and may require mero motu discharge by the court. (3) The case demonstrates the importance of proper fact-finding and logical reasoning when evaluating whether evidence establishes presence and participation in crimes. (4) It illustrates that acceptance of a reasonably possibly true explanation for one accused does not automatically prove facts concerning another accused. The judgment contributes to the ongoing debate about the test in S v Shuping regarding discharge applications, though it deliberately leaves open the question of whether an accused can be placed on defence in expectation of incrimination by a co-accused.