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South Africa: Western Cape High Court, Cape Town
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2004
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[2004] ZAWCHC 36
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Ryneveld v S (A407/2007) [2004] ZAWCHC 36 (25 April 2004)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
:
A407/2007
DATE
:
25
APRIL 2004
In
the matter between:
HILDA
RYNEVELD
Appellant
and
THE
STATE
Respondent
JUDGMENT
(Appeal
against Sentence)
BINNS-WARD,
AJ
tn
this matter the Appellant was convicted of contravening section
319(3) of the old Criminal Procedure Act, Act 56 of 1955; that
is of
making contradictory statements on two occasions on oath. The
appellant had apparently made allegations on oath against her
husband
in the context of a family violence matter, and when that matter came
to court confirmed those allegations on oath, and
thereafter, when
called back into the witness box, somewhat curiously to testify on
behalf of her husband, retracted those allegations,
confessed that
they were untrue and indicated that they had been made in the
circumstances of a family feud between her family
and her husband.
The
magistrate imposed a sentence of 12 months imprisonment in terms of
Section 276(1)(i) of the Criminal Code and it is against
that
sentence that the appellant, with the leave of the trial Court, comes
on appeal.
Mr
Brand
who appeared in this Court for the appellant drew attention to two
previous judgments of this Court, the first being a judgment
of
Marais
AJ
in
S
v Fass
1980(4) SA 102 Cape, in which
van
den Heever J
concurred and the second being a judgment of
Tebbutt
J
in
S
v Wagner
1998(2) SACR 423, Cape, in which
Chettv
J
concurred. The judgments in both those cases were to the effect that
it was inappropriate to impose sentence, and particularly
a sentence
of Imprisonment, in a matter of this nature without a proper enquiry
into the circumstances of the commission of the
offence.
In
Wagner's
case, for example, there were indications that the false statement
under oath, which was contradicted under separate oath later,
had
been made because of duress in a gang related environment, but there
was an absence of detail concerning the nature of that
duress and the
extent to which it affected the making of the false statement.
In
the current case the Magistrate was informed in stark terms that the
family feud, to which I referred earlier, had influenced
the making
of the contradictory statements under oath, but he undertook no
investigation to obtain clarity in that regard. In my
judgment,
particularly having regard to the authority to which I have just
referred, his approach was misdirected.
His
approach was further misdirected in the sense apparent in his reasons
for sentence furnished later in which he justified the
sentence
imposed, explaining that it had to be remembered that the appellant
would serve at most two months before she was released
on
correctional supervision. Mr
De
Villiers
correctly conceded that that was a material misdirection by the
magistrate and that a 12 month sentence of imprisonment imposed
in
terms of Section 276(1)(i) of the Code is an effective sentence of 12
months imprisonment, and it is by no means certain in
those
circumstances that the prison authorities would act as permitted in
terms of the provision to achieve the release of the
accused on
correctional supervision at any particular stage during those 12
months.
In
the circumstances, as both counsel agreed, it is appropriate that the
APPEAL
AGAINST SENTENCE SHOULD BE UPHELD
,
the sentence should be set aside, and the matter should be referred
back to the trial court for a proper investigation into the
circumstances of the commission of the offence for
the determination of an appropriate sentence.
BINNS-WARD,
AJ
I
agree, and it is so ordered.
CLEAVER,
J