Court name
High Court
Case number
CA 51 of 1998
Title

S v Somses (CA 51 of 1998) [1999] NAHC 7 (02 August 1999);

Media neutral citation
[1999] NAHC 7











THE
STATE v. BETTIE SOMSES



CASE
NO. CA 51/98



1998/08/02
Maritz, J et Hoff, A.J.











CRIMMINAL
PROCEDURE CRIMMINAL LAW















Appeal -
accused convicted under law not of application in Namibia -
substitution of conviction with reference to applicable law - tests
of prejudice and failure of justice.







Statutory
"perjury" - section 300(3) of Criminal Procedure Ordinance,
1963 - conflicting statements on oath - terms of statement alleged in
charge and that admitted to in s.112 questioning differ - elements of
charge not admitted -conviction set aside and matter remitted to
magistrate.















































































































CASE
NO. CA 51/98







THE
HIGH COURT OF NAMIBIA



















THE
STATE
Appellant











and











BETTIE
SOMSES
Respondent



























CORAM:
MARITZ, J. et HOFF, A.J.







Heard
on:
1999/08/02



Delivered
on: 1999-08-02



























JUDGMENT







MARITZ,
J.
:
The
respondent was convicted in the magistrate's court, Tsumeb of
statutory "perjury" in contravention of section 319(3) of
the Criminal Procedure Act, 1955. The State charged that her evidence
on oath in criminal proceedings before another magistrate of that
court conflicted with an earlier witness statement she had made on
oath to a member of the Namibian police. Having pleaded guilty, the
magistrate convicted, but cautioned and discharged her. The
Prosecutor-General, aggrieved by the leniency of the "sentence"
imposed, applied for and obtained leave to appeal against the order
in terms of section 310 of the Criminal Procedure Act, 1977.



Dr.
Horn, appearing for the appellant, submitted at the outset that the
respondent could not have been convicted of any offence under the
Criminal Procedure Act, 1955. That Act, promulgated by the South
African Parliament prior to Namibian independence, is not (and has
never been) of application in this country. The analogous statute
applicable in the then territory of South West Africa was the
Criminal Procedure Ordinance, 1963. Both the 1955 Act (except for
sections 319(3) and 384) and the 1963 ordinance (except for sections
300(3) and 370) have since been repealed by section 344(1) of the
Criminal Procedure Act, 1977.







The
wording of section 319(3) of the 1955 Act and that of section 300(3)
of the 1963 ordinance are almost identical. Section 300(3) of the
1963 ordinance reads as follows:







"If
a person has made any statement on oath whether orally or in writing,
and he thereafter on another oath makes another statement as
aforesaid, which is in conflict with such fxrstmentioned statement,
he shall be guilty of an offence and, may, on a charge that he made
the two conflicting statements, and upon proof of those two
statements and without proof as to which of the said statements was
false, be convicted on the evidence of one witness of such offence
and punished with the penalties prescribed by law for the crime of
perjury, unless it is proved that when he made each statement he
believed it to be true.
"







The
only difference between it and section 319(3) of the 1955 Act (under
which the respondent was convicted) is that the latter does not make
mention of the evidence
"of
one witness"
for
a conviction. In Namibia, any charge of statutory perjury against the
respondent should therefor have been brought under section 300(3) of
the Criminal Procedure Ordinance, 1963 and not under the consonant
provisions of section 310(3) of the South African Act.



Dr
Horn, relying on an earlier judgement of this court in
R
v Traut and another,
1953(1)
SA 116 (SWA) at 118A, contended that the respondent had not been
prejudiced by the fact that the wrong Act had been referred to in the
charge sheet and invited this court to, on appeal, amend the charge
and substitute the conviction under the South African legislation for
one under the Namibian ordinance.







As
a general rule, an accused should not be allowed to escape conviction
only as a result of the prosecution's attachment of an incorrect
"label" to a statutory offence or an erroneous reference to
the applicable statutory provision which has allegedly been
contravened.











"(The)
principle is that, if the body of the charge is clear and unambiguous
in its description of the act alleged against the accused, e.g.,
where the offence is a statutory and not a common law offence and the
offence is correctly described in the actual terms of the statute,
the attaching of a wrong label to the offence or an error made in
quoting in the charge the statute or statutory regulation alleged to
have been contravened, may be regarded as an error not fatal to the
charge. Hence, in circumstances such as those, an error of that
nature may be corrected on review, if the Court is satisfied that
conviction is in accordance with justice, or, on appeal, if it is
satisfied that no failure of justice has, in fact, resulted
therefrom." (per
Henochsberg,
J. in
R
v Ngcobo; R v Sibega
1957
(1) SA 377 (N) at 381B-D).







The
principle to put substance before form, within this particular
context, is a salutary one which is echoed (although in a somewhat
different context) in section 86 of the Criminal Procedure Act, 1977
and which has been followed or approved in a number of cases (See
e.g.
R
v Shabonga,
1927
TPD 601;
R
v Safien,
1928
CPD 38;
R
v Buys,
1928
T.P.D. 737;
R
v Alexander and others,
1936
AD at 461;
R
v Ah For,
1943
AD 35;
R
v Seeber and Another,
1948
(3) SA 1036 (E);
R
v Seeber and Others,
1948
(3) SA 1191 (E);
R
v Liebrandt,
1950
(2) SA 558 (C);
R
v Robinson,
1954(3)
SA 449(0);
R
v Ntonja,
1956
(3) SA 370 (E);
R
v Nkabinde,
1956
(3) SA 104 (N)).



However,
before the court will allow such amendment or substitute such
conviction with reference to the correct sections, it must be
satisfied that the accused have not been or will not be prejudiced in
his
defence
or that a failure of justice will not otherwise occur. In most of the
cases I have referred to, the courts have held that no prejudice
would result if
"the
body of the charge is clear and unambiguous in its description of the
act alleged against the accused, e.g. where the offence is correctly
described in the actual terms of the statute"
and
"that
the accused realised fully the case he had to meet'.
Whereas
that approach may probably lead to the correct result in the vast
majority of cases, I am reluctant to apply it as a general rule. In
my view, the enquiry has to be made with due regard to the particular
facts and circumstances of each case. The question as to whether a
failure of justice may occur if the amendment will be granted or the
conviction will be substituted, may require examination beyond the
simple enquiry as to whether or not an accused will be prejudiced in
his or her defence.







Had
section 319(3) of the 1955 criminal code read the same as section
300(3) of the comparative Namibian provision, I would have had little
difficulty in granting the appellant's request. What concerns me
though, is the provision that an accused
"may
...be convicted
on
the evidence of one witness

of such offence..."
in
the Namibian ordinance -which, as I have pointed out, does not appear
in the South African Act. Is it simply permissible to convict an
accused, who has pleaded not guilty, on the evidence of one witness
or is such
aliunde
evidence
required even if an accused has pleaded guilty to the charge and
admitted all the elements thereof? If the latter is the case, there
will undoubtedly be a failure of justice if I were to accede to the
appellant's request to substitute the conviction for one under the
applicable



Namibian
law: Not only would there then have been certain evidential
requirements which have not been met by the appellant, but the
respondent (who was not represented at any point in time during the
trial or this hearing) would not have been alerted to her rights
under that section.







Having
considered the question carefully, I am of the view that the
reference to the
"evidence
of one witness"
in
the section was intended by the legislature to refer to the
quantum
of
proof required in such cases (compare the
dictum
in
R
v Cilliers,
1954(1)
SA 177 (SWA) at 178F-G) and not to be applied as a general rule in
cases where the issues are not in dispute between the State and the
accused. I find support for that view if one is to consider the
immediate context within which the legislature used those words
("upon
proof of ...and without proof as to...).
Moreover,
the inquisitorial nature of the proceedings following on a plea of
guilty which was introduced by section 112 of Act 51 of 1977, was
intended to do away with the necessity of
aliunde
evidence
as a prerequisite to a conviction following a plea of guilty.







In
the premises, I am satisfied that the no prejudice to the respondent
and no other failure of justice will occur if I am to consider the
appeal as if the respondent had been correctly charged of a
contravention of section 300(3) of the Criminal Procedure Ordinance,
1963. Accordingly, I am therefore amenable to consider the
appellant's request for a substitution of the conviction with that in
mind.







Before
doing so, I must be satisfied that the respondent has admitted all
the elements of an offence under section 300(3) during questioning by
the magistrate in the course of the section 112(l)(b) proceedings.



The
elements of the offence have been discussed by Ogilvie Thompson, J.A
in
R
v Shole
1960
(4) SA 781 (A) at 789 B-E:











"The
offence thus created provides the Crown with a convenient means of
bringing to justice the giver of false testimony without the
necessity of proving all the requirements of the common law crime of
perjury; and, in a proper case, there is, of course, no objection to
the adoption of that convenient course. At the same time, sec. 319
(3) casts a considerable burden upon the accused, and the Crown,
before it can successfully invoke the section, must strictly satisfy
its requirements. Two of those requirements are (a) that the charge
must allege that the accused 'made the two conflicting statements',
and (b) 'proof of those two statements'. That is to say, the Crown
must, in addition to alleging the conflicting statements in the
charge sheet, prove (i) that those statements were made and (ii) that
they conflict. Each case must necessarily depend upon its own facts;
but, in relation to the alleged conflicts between a witness' written
statement and his subsequent testimony, the form of the question to
which the deponent has replied and the possibility that the ipsissima
verba of the reply have not been accurately recorded are factors
which must be borne in mind".







The
conflicting statements alleged by the appellant are that the
respondent stated on oath that
"complainant
in case 1767/97 was hiding when she was attacked by the accused"
and
that she subsequently testified on oath that
"the
complainant in ... case 1767/97 was storming the accused when she was
attacked".
Neither
of the statements or a transcription thereof was handed in or
presented to the respondent during the hearing. When asked whether
she could recall what she had sworn to in the witness statement to
the investigating officer, she answered in the affirmative and
(according to the record) went on to say the following:
"I
told him that Dorothea, the complainant in case 1767/97, was attacked
by the accused and then she went to hide behind certain men."







Over
and above the fact that it is almost impossible to asses the
conflicting nature of those utterances without considering, at the
same time, the context within which they were made and the chronology
of events within which they fell, one aspect is at least certain: the
statement admitted to by the respondent during questioning by the
magistrate differs substantially from the one alleged in the charge.
Consequently, the magistrate could not have been satisfied that the
respondent admitted all the allegations of the charge preferred
against her. In my view, he should have entered a plea of not guilty
in terms of section 113 of the Act and afforded the appellant the
opportunity of proving its case.







Section
310(6) of the Criminal Procedure Act, 1977 applies the provisions of
section 309
mutatis
mutandis
to
appeals brought at the instance of the Prosecutor-General. Subsection
(3) of section 309 confers on this court the powers mentioned in
section 304 of the Act -including the powers to
"give
such judgment ...or

make
such order as the magistrate's court ought to have given ... or made
on any matter which was before it at the trial of the case in
question"
and
to
"remit
the case to the magistrate's court with instructions to deal with any
matter as the (court) may think fit".







In
the result the conviction and resultant order warning and discharging
the respondent is set aside and the matter is remitted to the
magistrate. He is directed to amend the charge against the respondent
by the substitution for the words
"section
319(3) of Act 56/1955"
of
the words
"section
300(3) of the Criminal Procedure Ordinance, 1963";
to
enter a plea of
"not
guilty"
as
contemplated by section 113 of the Criminal Procedure Act and to
continue with the trial on that basis.