THEME 4

SUBSTANTIVE LAW DEFENCE: -section 78(1) CPA -"THEN" question -whether at the time of the offence the accused didn't understand his actions were unlawful -section 78(1A): presumed NOT to suffer from illness UNTIL contrary is proven on a balance of probabilities -section 78(1B): burden of proof is on the party who raises the issue PROCEDURAL ISSUE: -section 77(1) CPA -"NOW" question whether accused is unable to understand the proceedings as to make a proper defence at time of trial -sections 78(1A)&(1B): don't apply!!! -state has the burden of proving the accused is capable of understanding proceedings beyond reasonable doubt!!! -if accused unable to understand the proceedings merely POSTPONED!!!

section 174 CPA: if court of opinion that there is no evidence against the accused it MAY return a verdict of not guilty -MAY indicates a discretion on courts: TEST in S v Shuping: 1. evidence on which a reasonable person might convict? 2. If not: reasonable possibility that the accused might supplement the states case? -problem with 2nd question is that can only happen bmo self-incrimination!!! DEBATE REGARDING DISCRETION: 1. R v Kritzinger: court has absolute discretion even where no evidence against accused 2. S v Mathebula: -considered section 174 CPA ito sections 11&25 of the Interim CTN -sections 11&25 curtail discretion -duty to prove guilt rests on state, accused NEED NOT assist them -if state cant prove evidence accused should be afforded CTNal right to be presumed innocent and acquitted -continuing the trial in such cases would constitute gross unfairness -ONLY APPLICABLE where NO EVIDENCE!!! 3. S v Ndlangamandla: -approved S v Mathebula -states ONLY APPLICABLE TO cases where only one accused 4. S v Legote: -clear court has a duty to ensure an unrepresented accused against whom there is no prima facie case be discharged -PRINCIPLE OF EQUALITY: duty extended to represented accused 5. S v Lubaxa: -question whether section 35(3) of the CTN removed discretion? -NB to distinguish btw: 1. where more than 1 accused 1 can incriminate other no infringement 2. where only 1 accused only way to supplement is self-incrimination MUST DISCHARGE!!!