What Is a Section 174 Discharge – And When Can You Apply?
In South African criminal law, a Section 174 discharge can be a powerful legal remedy for accused persons. It provides an opportunity for the case to be dismissed before the defence is even required to present evidence—saving time, costs, and the emotional toll of a full trial.
At Barter McKellar, our defence lawyers regularly assess whether a Section 174 application is appropriate for our clients. This article explains what it is, when you can apply, and how it may affect your criminal case.
What Is a Section 174 Discharge?
A Section 174 discharge refers to an application made under Section 174 of the Criminal Procedure Act 51 of 1977. It allows the court to acquit an accused person at the end of the prosecution’s case if there is no evidence upon which a reasonable court could convict.
In other words, if the State has failed to present sufficient evidence on one or more charges, the accused may ask the court to dismiss those charges without having to testify or call any witnesses.
When Can You Apply for a Section 174 Discharge?
A Section 174 discharge may be applied for immediately after the State closes its case—that is, after all prosecution witnesses have testified and been cross-examined.
The application may be successful if the following conditions are met:
No Evidence Linking the Accused to the Crime
If the State has failed to present any direct or circumstantial evidence tying the accused to the commission of the offence.
Evidence Is So Weak It Cannot Support a Conviction
Even if some evidence is presented, if it is so unreliable or lacking that no reasonable court could convict on it, a discharge may be granted.
Only Co-Accused Are Implicated
Where an accused is implicated solely by the testimony of a co-accused, and there is no corroborating evidence.
A discharge does not mean the accused is “found not guilty” in the same way as after a full trial. It means the court believes there's no legal basis to continue the trial at that point.
When Will a Court Not Grant a Section 174 Discharge?
The application will likely fail if:
The State has presented credible evidence, even if disputed;
There is conflicting evidence that requires resolution by the court;
The case involves multiple accused and the evidence may apply differently to each;
The discharge is seen as premature due to ongoing or linked proceedings.
Courts are cautious when granting discharges and will typically err on the side of caution unless it’s clear that continuing the trial would serve no legal purpose.
Strategic Use in Criminal Defence
A Section 174 application is a tactical tool used by experienced criminal defence attorneys to protect the rights of the accused and minimise unnecessary litigation.
At Barter McKellar, we assess every case to determine:
Whether the prosecution has met its burden of proof;
Whether the evidence is legally admissible;
Whether contradictions or hearsay undermine the case.
We present compelling written or oral arguments to support the application and guide clients through the process with transparency and strategy.
Can a Section 174 Discharge Be Appealed?
Yes. If the court refuses the application, the defence must proceed and present its case. However, if the application is granted, the State cannot appeal the discharge unless exceptional circumstances apply (e.g., in higher-profile or constitutional matters).
Why Choose Barter McKellar?
Our criminal defence team brings a wealth of litigation experience and a deep understanding of trial strategy. We know when and how to invoke Section 174 to safeguard your rights and secure your freedom.
We provide:
In-depth case reviews after the State’s case closes
Skilled courtroom advocacy
Early assessment of whether a discharge is possible
Full representation through trial if needed
Facing Trial? Let’s Talk Strategy.
If you’re on trial and the prosecution’s case is weak, a Section 174 discharge could be your path to early acquittal. Let Barter McKellar provide the legal insight and courtroom power to turn the tide in your favour.
