S v Somses (CA 51 of 1998) [1999] NAHC 7 (2 August 1999)

THE STATE v. BETTIE SOMSES CASE NO. CA 5 1 / 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. THE HIGH COURT OF NAMIBIA THE STATE a nd CASE NO. CA 5 1 / 98 Appellant BETTIE SOMSES R e s p o n d e nt CORAM: MARITZ, J. et HOFF, A. J. Heard on: Delivered on: 1999/08/02 1999-08-02 JUDGMENT MARITZ, J.: The r e s p o n d e nt w as convicted in t he magistrate's court, T s u m eb of s t a t u t o ry "perjury" in contravention of section 319(3) of the Criminal Procedure Act, 1955. The State charged t h at h er evidence on oath in criminal proceedings before a n o t h er magistrate of t h at court conflicted with an earlier witness s t a t e m e nt s he h ad m a de on oath to a m e m b er of t he Namibian police. Having pleaded guilty, the magistrate convicted, b ut cautioned a nd discharged her. The Prosecutor-General, aggrieved by the leniency of the "sentence" imposed, applied for a nd obtained leave to a p p e al against the order in t e r ms of section 3 10 of t he Criminal Procedure Act, 1977. Dr. Horn, a p p e a r i ng for t he appellant, s u b m i t t ed at the o u t s et t h at the r e s p o n d e nt could not have been convicted of any offence u n d er the Criminal Procedure Act, 1955. T h at Act, promulgated by t he S o u th African Parliament prior to Namibian i n d e p e n d e n c e, is not (and h as never been) of application in this country. The a n a l o g o us s t a t u te applicable in the t h en territory of S o u th West Africa w as the Criminal Procedure Ordinance, 1963. Both the 1955 Act (except for sections 319(3) a nd 384) a nd the 1963 ordinance (except for sections 300(3) a nd 370) have since been repealed by section 344(1) of the Criminal Procedure Act, 1977.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 a nd t h at of section 300(3) of t he 1963 ordinance are a l m o st identical. Section 300(3) of the 1963 ordinance r e a ds as follows: oath statement on oath whether orally or another in is guilty be thereafter statement, and as he aforesaid, on which shall he that he made two statements was false, "If a person has made any writing, statement fxrstmentioned may, on a charge upon proof of those said of the one witness prescribed by when he made each statement he believed of law for statements be and offence the crime of perjury, such the and without proof as convicted on punished with it unless to be it true." makes in another such and, and to which the evidence of penalties that is proved the conflict with offence of an two conflicting statements, The only difference between it a nd section 319(3) of the 1955 Act (under which t he r e s p o n d e nt was convicted) is t h at the latter does n ot m a ke m e n t i on of t he evidence "of one witness" for a conviction. In Namibia, any charge of statutory perjury against the r e s p o n d e nt should therefor have b e en b r o u g ht u n d er section 300(3) of t he Criminal Procedure Ordinance, 1963 a nd n ot u n d er the c o n s o n a nt provisions of section 310(3) of the S o u th African Act. Dr Horn, relying on an earlier j u d g e m e nt of this court in R v Traut and another, 1953(1) SA 116 (SWA) at 118A, contended t h at the r e s p o n d e nt h ad not been prejudiced by the fact t h at t he wrong Act h ad been referred to in the charge sheet a nd invited this court to, on appeal, a m e nd the charge a nd s u b s t i t u te the conviction u n d er the S o u th African legislation for one u n d er t he Namibian ordinance. As a general rule, an a c c u s ed s h o u ld not be allowed to escape conviction only as a result of the prosecution's a t t a c h m e nt of an incorrect "label" to a statutory offence or an e r r o n e o us reference to the applicable s t a t u t o ry provision which h as allegedly been contravened. is is that, against correctly the act the offence the attaching of a wrong if description the offence is "(The) principle its in unambiguous e.g., where accused, and law offence terms of the statute, or an error made regulation alleged an error not fatal those, that conviction Court satisfied is on appeal, therefrom." (per Henochsberg, J. resulted Sibega 1957 (1) SA 3 77 (N) at 381B-D). clear and charge the body of the alleged the of is a statutory and not a common the actual the offence the statute or statutory regarded as such as if the or, in fact, in R v Ngcobo; R v an error of that nature may be corrected on is to have been contravened, may be to that no failure of justice has, in accordance with justice, described label the charge. Hence, satisfied if it circumstances the charge in quoting review, in to in in is The principle to p ut s u b s t a n ce before form, within this particular context, is a s a l u t a ry one which is echoed (although in a s o m e w h at different context) in section 86 of the Criminal Procedure Act, 1977 a nd which h as been followed or approved in a n u m b er of c a s es (See e.g. R v Shabonga, 1927 TPD 6 0 1; R v Safien, 1928 CPD 3 8; R v Buys, 1928 T. P. D. 7 3 7; R v Alexander a nd o t h e r s, 1936 AD at 4 6 1; R v Ah For, 1943 AD 3 5; R v Seeber a nd Another, 1948 (3) SA 1036 (E); R v Seeber a nd 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 s u ch a m e n d m e nt or s u b s t i t u te s u ch conviction with reference to the correct sections, it m u st be satisfied t h at the a c c u s ed have not been or will not be prejudiced in his defence or t h at a failure of j u s t i ce will not otherwise occur. In most of t he c a s es I have referred to, the c o u r ts have held t h at 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" a nd "that the accused realised fully the case he had to meet'. Whereas t h at a p p r o a ch m ay probably lead to t he correct result in the vast majority of c a s e s, I am r e l u c t a nt to apply it as a general rule. In my view, the enquiry h as to be m a de with due regard to the p a r t i c u l ar facts a nd c i r c u m s t a n c es of each case. The question as to w h e t h er a failure of justice m ay occur if the a m e n d m e nt will be g r a n t ed or the conviction will be s u b s t i t u t e d, m ay require examination beyond the simple enquiry as to w h e t h er or not an a c c u s ed will be prejudiced in his or h er defence. Had section 319(3) of t he 1955 criminal code read the s a me as section 300(3) of the comparative Namibian provision, I would have h ad little difficulty in granting the appellant's request. What c o n c e r ns me t h o u g h, is the provision t h at an a c c u s ed "may ...be convicted on the evidence of one witness of such offence..." in the Namibian o r d i n a n ce - which, as I have pointed out, does not a p p e ar in the S o u th African Act. Is it simply permissible to convict an a c c u s e d, who h as pleaded not guilty, on the evidence of one w i t n e ss or is s u ch aliunde evidence required even if an a c c u s ed h as pleaded guilty to t he charge a nd admitted all the elements thereof? If t he latter is the case, t h e re will u n d o u b t e d ly be a failure of justice if I were to accede to t he appellant's r e q u e st to s u b s t i t u te the conviction for one u n d er t he applicable Namibian law: Not only would there t h en have been certain evidential r e q u i r e m e n ts which have not been met by the appellant, b ut the r e s p o n d e nt (who w as not represented at a ny point in time d u r i ng the trial or this hearing) would not have been alerted to her rights u n d er t h at section. Having considered the question carefully, I am of the view t h at the reference to the "evidence of one witness" in the section w as intended by the legislature to refer to the quantum of proof required in s u ch c a s es (compare the dictum in R v Cilliers, 1954(1) SA 177 (SWA) at 178F-G) a nd not to be applied as a general rule in c a s es where t he i s s u es are not in d i s p u te between the State a nd the a c c u s e d. I find s u p p o rt for t h at view if one is to consider the immediate context within which the legislature u s ed those words ("upon proof of ...and without proof as to...). Moreover, the inquisitorial n a t u re of the proceedings following on a plea of guilty which w as introduced by section 112 of Act 51 of 1977, w as i n t e n d ed to do away with t he necessity of aliunde evidence as a prerequisite to a conviction following a plea of guilty. In the premises, I am satisfied t h at t he no prejudice to the r e s p o n d e nt a nd no other failure of j u s t i ce will occur if I am to consider the appeal as if the r e s p o n d e nt h ad been correctly charged of a contravention of section 300(3) of the Criminal Procedure O r d i n a n c e, 1963. Accordingly, I am therefore a m e n a b le to consider the appellant's r e q u e st for a s u b s t i t u t i on of the conviction with t h at in mind. Before doing so, I m u st be satisfied t h at t he r e s p o n d e nt h as admitted all the elements of an offence u n d er section 300(3) d u r i ng questioning by the magistrate in t he course of the section 112(l)(b) proceedings. The e l e m e n ts of t he offence have been d i s c u s s ed by Ogilvie T h o m p s o n, J. A in R v S h o le 1960 (4) SA 7 81 (A) at 7 89 B-E: in a proper case, that created provides the to of proving all justice the (3) casts a considerable burden upon the requirements it can successfully invoke before requirements. allege the adoption of sec. offence necessity thus of bringing the Crown, satisfy "The means the crime of perjury; and, to objection time, and strictly that the conflicting That is conflicting statements were made and necessarily alleged subsequent deponent of the must be borne its charge must statements', to say, statements upon between the and has reply in mind". conflicts depend and testimony, replied have not been its the there convenient Two that requirements of those the the Crown with a giver of false of convenient testimony without law common the no of course, is, same course. At the accused, section, must (a) are two the statements'. the those conflict. Each case must the relation but, facts; his a witness' written form the the of the possibility verba are factors which accurately accused of those addition prove question that the recorded 'made two to (i) in statement to and which to ipsissima alleging that in sheet, 'proof own they (ii) (b) the Crown must, charge that the in The conflicting s t a t e m e n ts alleged by t he a p p e l l a nt a re t h at t he r e s p o n d e nt s t a t ed on o a th t h at "complainant in case 1767/97 was hiding when she was attacked by the accused" a nd t h at s he s u b s e q u e n t ly testified on o a th t h at "the complainant in ... case 1767/97 was storming the accused when she was attacked". Neither of the s t a t e m e n ts or a t r a n s c r i p t i on thereof w as h a n d ed in or p r e s e n t ed to t he r e s p o n d e nt d u r i ng t he h e a r i n g. W h en a s k ed w h e t h er s he could recall w h at s he h ad sworn to in t he w i t n e ss s t a t e m e nt to t he investigating officer, s he a n s w e r ed in t he affirmative a nd (according to the record) w e nt 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 a nd above t he fact t h at it is a l m o st impossible to a s s es t he conflicting n a t u re of t h o se u t t e r a n c es w i t h o ut considering, at t he s a me time, the context within which they were m a de a nd the chronology of events within which they fell, one aspect is at least certain: the s t a t e m e nt admitted to by the r e s p o n d e nt d u r i ng questioning by the magistrate differs substantially from the one alleged in the charge. Consequently, the magistrate could not have been satisfied t h at the r e s p o n d e nt admitted all t he allegations of the charge preferred against her. In my view, he should have entered a plea of not guilty in t e r ms of section 113 of the Act a nd afforded the appellant t he opportunity of proving its case. Section 310(6) of the Criminal Procedure Act, 1977 applies the provisions of section 309 mutatis mutandis to a p p e a ls b r o u g ht at the instance of the Prosecutor-General. Subsection (3) of section 309 confers on this court the powers mentioned in section 3 04 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" a nd 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 t he conviction a nd r e s u l t a nt order warning a nd discharging the r e s p o n d e nt is set aside a nd the m a t t er is remitted to the magistrate. He is directed to a m e nd the charge a g a i n st t he r e s p o n d e nt by t he s u b s t i t u t i on for t he words "section 319(3) of Act 56/1955" of t he 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 a nd to continue with t he trial on t h at basis. Hoff, A. J.