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[2019] ZAFSHC 220
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S v Ncamane (R153-2019) [2019] ZAFSHC 220 (28 November 2019)
the HIGH COURT
OF south africa
FREE STATE
PROVINCIAL DIVISION
Reportable:
YES/NO
Case
No: R153/2019
In the matter
between:
THE
STATE
a
nd
PORTIA NCAMANE
Coram:
JORDAAN,
J
et
OPPERMAN,
J
Delivered:
28
November 2019
Judgment:
Opperman,
J
JUDGMENT
[1]
The
accused pleaded guilty in terms of
section 112(2)
of the
Criminal
Procedure Act 51 of 1977
. She was convicted of
the
contravention of
section 9
of the Justice of the Peace and
Commissioners of Oath Act 16 of 1963 and thereafter sentenced to six
months imprisonment that was
wholly suspended for five years on
condition that the accused is not again convicted of Perjury and that
was committed within the
period of suspension. She was deemed fit to
possess a firearm in terms of the
Firearms Control Act 60 of 2000
.
[2]
The
matter was submitted in terms of
section 304(4)
of the
Criminal
Procedure Act for
special review. During the judicial quality
assessment, it was decided that the statement “did not elevate
or substantiate
the elements of the offence with which the accused
was charged and therefor the statement of the accused is lacking in
its entirety.”
[3]
The
matter was referred back to the Judicial Head of the Office that
caused the review with a request for reasons on the following
aspects:
In the cover letter
of the presiding officer he/she indicated as follows: “…
I concur that I did not clarify
the issues any
further and accepted the statement as presented by the legal
representative of the
accused.”
1.
What issues did the presiding officer not canvass with the accused?
2.
Which of the elements of the crime were not substantiated and
encompassed in
the statement in terms of
section 112(2)
of The
Criminal Procedure Act 51 of 1977
?
3.
What is the effect of the alleged non-compliance with the law and
what is the
order/solution that the presiding officer suggests in the
circumstances of the case?
[4]
The
presiding officer is currently on maternity leave and since the
matter was referred by the Acting Head of Office, she decided
to
attend to the matter to avoid delay.
[5]
The
Head of Office once again perused the
section 112(2)
-statement and
reconsidered
section 9
of
the
Justice of the Peace and Commissioners of Oath Act 16 of 1963 which
states as follows:
9.
Penalties for false statements in affidavits and certain other
declarations.—Any person who, in an affidavit,
affirmation or
solemn or attested declaration made before a person competent to
administer an oath or affirmation or take the declaration
in
question, has made a false statement knowing it to be false, shall be
guilty of an offence and liable upon conviction to the
penalties
prescribed by law for the offence of perjury.
[6]
Hoctor,
Cowling & Milton in
South
African Criminal Law and Procedure,
Volume
III: Statutory Offences, CD-Rom and Intranet: ISSN 2218–Jutastat,
e-publications at C2 page 25 commended that:
Although this
offence is often called 'statutory perjury', that description is
inaccurate, for it is an independent substantive
offence and the
perjury rules (for example that requiring corroboration) do not
apply.
The essential
elements of the offence are: (i) a false statement. (ii) in an
affidavit, affirmation, or solemn or attested declaration.
(iii) made
before a competent person. (iv) mens rea.
[7]
The
learned Acting Head of Office admitted that upon reconsideration the
proceedings cannot be faulted and requested the Court of
Review to
“return the matter for filing.”
[8]
The
proceedings in the case were indeed conducted in accordance with
justice.
[9]
Order
The conviction and
sentence are confirmed.
M
OPPERMAN, J
I concur
F
JORDAAN, J