Letters to the Editor – July 2026

Section 174: No ‘second leg’ in the constitutional era

I wrote an article ‘At first sight’ to clarify the law regarding s 174 of the Criminal Procedure Act 51 of 1977. I read the article by Mohammed Moolla (‘The discharge application under s 174 of the Criminal Procedure Act 51 of 1977’ 2026 (Jan/Feb) DR 31), and the letter by William Booth (‘Re: The discharge application under s 174 of the Criminal Procedure Act 51 of 1977’ 2026 (May) DR 4). I purposefully did not refer to a second leg in an inquiry under s 174 of the Criminal Procedure Act. I did so because in our constitutional era, there is no second leg. I agree with Mr Booth, but his reliance on the S v Dewani 2014 JDR 2660 (WCC) matter is misplaced. A reading of para 24.7 of the Dewani matter illustrates that Traverso DJP’s understanding of s 174 is wrong. Section 174 has nothing to do with the defence case. Section 174 of the Criminal Procedure Act is an inquiry that is based on the state’s case and the state’s case alone, nothing more, nothing less.

The ‘second leg’ ceased to exist because of the protection afforded by the principle against self-incrimination. The right is enshrined in s 35(3)(j) of our Constitution, which reads: Every accused person has a right to a fair trial, which includes the right not to be compelled to give self-incriminating evidence. The principle against self-incrimination a general organising principle of criminal law. The principle is that an accused is not required to respond to an allegation of wrongdoing made by the state until the state has succeeded in making out a case against an accused.  It is a basic tenet of our system of justice that the state must establish a ‘case to meet’ before there can be any expectation that the accused should respond. The residual protections provided by the principle against self-incrimination, as contained in s 35(3)(j) and (h), are specific and contextually sensitive. I emphasise that the right is contextually sensitive, as S v Lubaxa 2001 (2) SACR 703 (SCA) refers to the accused to act cautiously in para 16, where it is held that there must be very few criminal defendants in this country (most of whom are unrepresented at their trials) who are up to the task, and para 20. I urge jurists to read Lubaxa to understand its context. 

Desmond Francke BIuris (UWC) is a magistrate at the Fezeka Magistrates’ office.

[Editor’s Note: The article ‘At first sight’ is scheduled to appear in the next issue of De Rebus.]

This letter was first published in De Rebus in 2026 (July) DR 4.

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