S v P.M.M (CC88/2023) [2025] ZAGPPHC 1043 (19 September 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1043 | Noteup | LawCite sino index ## S v P.M.M (CC88/2023) [2025] ZAGPPHC 1043 (19 September 2025) S v P.M.M (CC88/2023) [2025] ZAGPPHC 1043 (19 September 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1043.html sino date 19 September 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case number: CC88/2023 (1) REPORTABLE: YES/ NO (2) OF INTEREST TO THE JUDGES: YES/ NO (3) REVISED: YES SIGNATURE: DATE: 19/09/2025 In the matter between: THE STATE V P[...] M[...] M[...]       ACCUSED JUDGMENT ON SECTION 174 APPLICATION FOR THE DISCHARGE OF THE ACCUSED MOSOPA J 1)         The accused, P[...] M[...] M[...] a 48-year-old South Africa citizen, residing at Block A[...], Extension 19, Atteridgeville, Pretoria West, according to the indictment is arraigned in this court on a charge of murder in terms of the provisions of section 51(1) of Act 105 of 1997. Allegations levelled against the accused, are that he unlawfully and intentionally killed the deceased mentioned in the indictment who was married to him, by administering poison or noxious substance in her food. Applicability of section 51(1) of the Act 105 of 1997 is based on the fact that the state alleges that the murder is premeditated or planned. 2)         This is an application for discharge of the accused in terms of the provisions of section 174 of Act 51 of 1997 at the end of the state's case. The accused is still represented by Mrs Naidoo and the state is still represented by Ms Mafunisa from the Director of Public Prosecutions, Pretoria. 3)         Section 174 of Act 51 of 1977, makes the following provision; "(174) 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." 4)         It is trite 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 135 C­E ). Simply put, the state must have sufficient evidence against the accused before charges are initiated against the accused. Meaning that prosecution should not be commenced without that minimum evidence and as a result, it should cease when the evidence finally falls below that threshold. 5)         Evidence is that there was a stage when the charge was withdrawn against the accused when the matter was still serving in the lower court and only to be reinstated at a later stage. No reasons in this court were advanced as to what necessitated such withdrawal of the charge levelled against the accused. 6)         Section 174 gives a trial court the power to decide not to put the accused on his or her defence if there is no case for the accused to answer. The words "no evidence" in the section have been interpreted to mean no evidence upon which a reasonable man acting carefully may convict. ( S v Agliotti 2011(2) SACR 437 (GSJ) at para 257 ). A statement by the accused's legal representative in what the accused would say if called to testify, does not amount to evidence for the purpose of determining section 174 application ( S v Phillips and Others WCC case no A70/22, 15 September 2022 at para 24 ). 7)         The issue relating to credibility of the state witnesses at section 174 application has seen a number of conflicting judgments. The position was settled in S v Mpetha and Others 1983 (4) SA 262 (C) when Williamson J, held that credibility would play only a very limited role and the evidence ignored only if it was of such poor quality that no reasonable person could possibly accept it. (see also S v Agliotti ( supra )). 8)         In S v Lubaxa 2001 (2) SACR 703 (SCA) the following was stated; "[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 self­incriminatory 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." 9)         In S v Dewani (CC15/2014) [2014] ZAWCHC 188 (8 December 2014) , Traverso DJP stated that; "[15] To therefore summarise the legal position regarding applications in terms of section 174: (a)       An accused person 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; (b)       In deciding whether an accused person is entitled to be discharged at the close of the State's case, the court may take into account the credibility of the State witnesses, even if only to a limited extent; (c)        Where the evidence of the State witnesses implicating the accused is of such poor quality that it cannot safely relied upon, and there is accordingly no credible evidence on record upon which a court, acting carefully, may convict, an application for discharge should be granted." 1O)Accused pleaded not guilty to the charge levelled against him and exercised his constitutional right to remain silent. The test applicable in section 174 application is a civil test, balance of probabilities and that the state must establish a prima facie case against the accused. 11)      The accused made the following admission in terms of section 220 of Act 51 of 1977 which are; 11.1.   he was married to the deceased and they were in a domestic relationship, 11.2.   that on the day the deceased died, she ate the food that was prepared by him, 11.3.   that the food in the plate out of which the deceased ate had what looked like small black seeds. 12)      The following are the proven facts in casu ; 12.1.   that the deceased caused to be issued the divorce summons against the accused in the Pretoria Regional Court, 12.2.   such summons was not defended by the accused, and at the time of death of the deceased, the divorce process was not yet finalised, 12.3.   the deceased was supposed to have left the common house on the weekend when she passed away to stay elsewhere, 12.4.   the deceased at the time of her death was pregnant with a child not belonging to the accused, 12.5.   at the time of her death, the accused was unemployed and deceased was employed as a security officer and she would spend a week away from home, sleeping at her employer's premises when she is on duty. She would only come home when she was off duty, 12.6.   Mr Lesiba Esau Monare from the Forensic Chemistry Laboratory received several exhibits for analysis. In the stomach contents specimen of the deceased, he detected Terbufos and efavirenz. In another exhibit under the seal bag PA 5002627395, which was collected from the scene, he detected Terbufos, 12.7.   at post-mortem it was found that the stomach of the deceased contained approximately 300ml of partially digested composed of vegetables, fish and tea-like material. The food is mixed with grey-like poppy seed-like granules in keeping with Termik, and 12.8.   the cause of death at post-mortem was found to be "in keeping with poisoning by ingestion: carbamates/organophosphates." 13)      There is no eyewitness to the commission this murder. The state in trying to prove the guilt of the accused is relying on circumstantial evidence and hearsay evidence. Firstly, what the deceased told Elizabeth her neighbour before her death and secondly, the statement of Elizabeth who died before testifying in this matter. I have already made a ruling on the admissibility of the hearsay evidence of Elizabeth, and such statement is admitted into evidence. 14)      The deceased left her home in the morning of the day of her death and only arrived home at approximately 18h00 and requested accused to buy her tin· fish, which he eventually cooked together with tomatoes, and the deceased ate such food. There was a stage when, after the accused left, the deceased went to her neighbour's place to show her food that was dished to her by accused and the dish in which accused was eating from. That evidence is confirmed by accused because after coming back to where he went to, together with their child, L[...], they met the deceased coming from their neighbour's place with such bowls. 15)      There is no evidence that the deceased was sick at that stage but became sick afterwards. She requested T[...], her son, to prepare what was said to be "Mohamolo", a concoction of warm water and salt. T[...] left after providing the deceased with such concoction. When he returned, the deceased condition had worsened, she went outside their shack in an attempt to get fresh air and returned back but her condition kept on worsening. 16)      At approximately 23h00, Elizabeth phoned Mr and Mrs M[...] and informed them of the fact that the deceased is seriously sick. When they arrived there, they found the deceased lying on the floor and she was wet, and she could not speak. Mrs M[...] assisted in undressing the deceased and at that stage, the deceased was foaming. Mrs M[...] asked the accused as to what the problem was but accused did not answer her. She also asked why was the deceased wet, nobody including the accused answered her. It was on the second occasion when she asked him as to what happened to the deceased, he said that, "the deceased told him that she went to Laudium clinic and on her way back she passed by her friend's place and she ate chicken which was dished to her by her friend, she was not okay at that stage and she was looking sick. The ambulance arrived and the deceased was eventually taken to hospital and was declared dead there. 17)      No traces of chicken were found in the stomach content of the deceased at post-mortem and more especially when such stomach contents were analysed. What is also important is the evidence of T[…], that when he wanted to dish himself food, accused told him not to do that and also not to touch the food, an instruction that he respected. Also, the fact that when his mother returned home, she was not sick. The accused and the deceased would at times physically assault each other. Further, that the deceased asked the accused what he put in her food, and the accused did not respond to such question. 18)      Dr Makgoba, a pathologist who conducted a post-mortem examination and compiled a report which was admitted into evidence in terms of section 220, explained what he meant in his post-mortem report when he said, grey black poppy seed-like granules in keeping with Termik. He said Termik is a trade name of a compound called Aldicarb/Termik which falls under the group of carbamates or organophosphates. 19)      Criticism is levelled by Ms Naidoo on the manner the case was investigated, the poor handling of exhibits collected from the scene and failure to present important exhibits for investigation. The late obtaining of the statements and the contradictions inherent in the state witnesses' testimonies. Further contended that all are indicative of the fact that the state did not present a prima facie case against the accused upon which a responsible man acting carefully may convict. 20)      The only issue, considering that a majority of the facts are common cause, is who poured poison in the food that the deceased ingested. Ms Naidoo further contents that it is not clear as to what the jar that T[...] used to make his mother the Mohamolo contained as it was not cleaned before Mohamolo was made. But sight should not be lost of the fact that it was because of the of the burning sensation in the stomach of the deceased that resulted in a request for a preparation of Mohamolo. 21)      Dr Makhoba's uncontested evidence is that after ingestion of a poison, that was found in the stomach content of the deceased, a person will show symptoms, which include sweating, whizzling when breathing because of the fact that the lungs will be filled with liquid, struggling to breathe, heart beating heavily, seizure, falling into coma etc, depending on the individual, after 15 to 20 minutes of consumption. 22)     Based on this evidence, if the deceased could have consumed the chicken at the friend's place, she would have arrived home already presenting with the above symptoms, which on the evidence of T[...] and admitted hearsay evidence of Elizabeth is not present. 23)      Ms Naidoo contended that there is a possibility that the deceased wanted to terminate her life, considering the following factors, 23.1.   she told the accused not to call the ambulance and not to inform her sister about her condition, 23.2.   we do not know what her relationship with the father of the child was that she was carrying, also considering the fact that she concealed that according to the knowledge of the accused, as accused learned for the first time about the deceased' pregnancy when the paramedics came to fetch the deceased. 24)      If the deceased wanted to terminate her life, in my view, I deem it unnecessary for her to have went to Elizabeth and informed her about all that she said to her. The delay in calling for the ambulance can be attributed to the fact that she had belief that after consuming Mohamolo, her situation would improve. 25)      As to the pregnancy, the deceased was going to leave the premises during the weekend of her passing away and already she instituted divorce proceedings against the accused. It is therefore my considered view that her pregnancy could not have been the cause why she wanted to terminate her life, if really she wanted to terminate her life. She had at that stage already informed her child T[...] and her sister C[...] M[...] that she is pregnant. The only person who did not know of her pregnancy was the accused. 26)      The state Is requested not to establish the guilt of the accused beyond reasonable doubt at this stage of the proceedings. I do not agree with Ms Naidoo that the state failed to establish a prima facie case against the accused. The tin fish collected at the scene had soil particles when analysed, which is the corroboration of the state's evidence that such was collected next to the tap. ORDER 27)      In the result, the following order is made; 1.         The application for the discharge in terms of section 174 of Act 51 of 1977 is hereby refused. 2.         The accused is hereby placed to his defence. M.J. MOSOPA JUDGE OF THE HIGH COURT, PRETORIA APPEARANCES: For the State             : Adv E Mafunisa Instructed by             : Director of Public Prosecutions, Pretoria For the Accused       : Adv N Naidoo Instructed by             : Adv T Vukeya (Instructing counsel) Date of hearing        : 15 September 2025 Date of Judgment    : 19 September 2025 sino noindex make_database footer start