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[1994] ZASCA 69
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S v Ramdas (47/93) [1994] ZASCA 69 (20 May 1994)
RAPPORTEERBAAR
Case No 47/93
/wlb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
PRAVEEN RAMDAS Appellant
and
THE STATE Respondent
CORAM: HARMS JA, NICHOLAS et OLIVIER AJA
DATE OF HEARING: 22 March 1994
DATE OF JUDGMENT: 20 May 1994
JUDGMENT
OLIVIER AJA/
2 OLIVIER AJA:
This appeal concerns the requisites for a
conviction on a charge under section 319(3) of the Criminal
Procedure Act, 56 of 1955, ("the Act") which relates to the
making two conflicting statements on oath.
Appellant was convicted in the Pietermaritzburg magistrate's court on a
charge of contravening the said section. He was sentenced
to twelve months
imprisonment. His appeal was dismissed by the Natal Provincial Division (Galgut
et Hurt JJ) and leave to appeal
to this Court was granted.
The background facts are fairly simple. In 1988 the appellant was a detective
warrant officer in the South African Police. On the
evening of 21 April of that
year while on duty he was requested by one Majid Khan, whom he knew well, to
accompany him to a trim
park. There was blood on Khan's shire, and he made a
report to the
3 appellant to the effect that he had been attacked by a
number of assailants at the trim park. Appellant
accompanied Khan to the trim park. It was already quite
dark when they arrived there but the appellant stopped his
vehicle in such a position that the lights of his vehicle
could shine onto the scene. In the course of the
investigations conducted partly by the appellant and
subsequently by him and other detectives, three bodies were
found in the trim park. Khan was subsequently charged with
the murder of the three men.
Thereafter the investigating officer, Detective Sergeant Mottai, requested
the appellant to make a statement as to what he had seen
on the occasion of his
visit to the park in the company of Khan. The statement was reduced to writing
and, it is alleged by the State,
was made on oath by the appellant with
Detective Sergeant Mottai acting as commissioner of oaths. I shall refer to this
statement
as the first statement.
4 At the trial of Khan the appellant was called as
a witness for the defence. Arising out of the evidence
given by him at that trial, the appellant was charged with
contravening section 319(3) of the Act. The two alledgedly
conflicting
statements which form the substance of the
indictment according to the charge sheet are the first
statement of April 21, 1988 and his evidence, under oath,
in the trial of Khan on June 27, 1990. The crux of the
indictment as set out in the body of the charge sheet is
that the appellant alleged in the first statement that he
had seen only
one knife at the scene of the crime, whereas
in his evidence at the trial of
Khan he stated that three
knives had been found at the scene of the
crime.
The charge sheet as amended on appeal incorporated the first statement in
Column A and the relevant evidence in Column B Column A
and Column B read as
follows:
"
COLUMN A
At about 20H35 that evening I had just knocked off duty and was leaving the
Poilce yard with My private transport.
At the gate I was approached by A/M Majid Khan who was alone.
He reported to me that he was nearly robbed by four Black males and that they
had attacked him. He also stated that he had a fight
with them.
He asked we
to accompany him to the Trim park in Northdale where he was nearly robbed.
5.
I immediately placed myself on duty and accompanied him to the Trim park by
official vehicle.
6. On my arrival at the Trim park I noticed that the place
was dark. He pointed out the spot where the four Blacks attempted to rob
him.
Kith my van lights switched on I looked around to see if the culprits were still
in the
5
COLUMN B
'I also noticed not far from the second body that there was a knife and not
far from] the knife was a pair of nanchaku sticks. and
later
'Away from the
accused's car somewhere in the front, about a couple of metres from there was
another knife that that made of a pipe,
pipe handle knife. The reason why say it
was a pipe it was round and silver. It had some black sort of spots on it. and
again later,
We then go to the body of the first body under the tree and when it
was turned over to be photographed we seen the knife, it was
an orange coloured
knife.' and again later in reply to the question as to how many knives he saw at
the scene of the crime, he stated,
'Three knives I've seen.'"
6
area.
7. noticed a Black male lying underneath a tree about ten paces from where
Majid Khan was attacked. I checked on this Black and found
that he was lying on
his right side and there appeared to be a stab wound on his neck. He appeared to
be dead.
8. I immediately contacted radio control and informed them of my findings and
requested the Detectives and the Duty Officer to be
called out.
9. At that
stage some members of the reserve force had come in and they looked around and
discovered the second body, a few meters
away from the first one.
70. When a
torch was flashed at the first body I then noticed a long kitchen knife lying
next to the deceased's right hand. The knife
was blood stained.
The Detectives and the Duty Officer arrived a short
7
while later and took charge of the scene.
72. Later that night I again saw
Majid Khan at the charge office and noticed that his clothing had spots of blood
on them. His shoes
and the bottom of the Karate pants were also blood
stained.
73. I know and understand the contents of this statement. I have no
objection in taking the prescribed oath. I consider the prescribed
oath to be
binding on my conscience.'"
Section 319(3) of the Act 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 firstmentioned
statement, he shall
be guilty of an offence and may, on a charge alleging 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 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."
8 In the Afrikaans version of section 319
(3) the
words "two conflicting statements" are rendered as "twee
teenstrydige verklarings" and the words "in conflict" as "in stryd".
The crisp question is this: When can it be said that two statements are in
conflict ("in stryd is") and that there are conflicting
statements ("twee
teenstrydige verklarings")? The Concise Oxford Dictionary (8th ed 1990) s.v.
conflict
gives the following meanings of the verb
conflict
:
to
clash
, t
o be incompatible
. It also indicates that the adjective
conflicting
means the same or nearly the same as the word
contradictory
. The Verklarende Handwoordeboek van die Afrikaanse Taal
(7th ed, 1988) gives as synonym for
teenstrydig
the following:
strydig
met
,
wat mekaar teenspreek
.
In the case of
Handel v R
1933 SWA 40, 1933(2) PH K75, Van den Heever
J (as he then was) stated that the word
9
conflict
(in the context of legislative enactments)
connotes a situation in which one version says one thing
and the other the opposite. He stated that where the two
versions are reconcilable they must be reconciled. It is only when they are
not capable of reconciliation, i.e. when they are mutually
destructive, that a
conflict arises between them. I consider this to be an appropriate test to
determine the question of whether
statements are in conflict. See also
Rex v
Sneezum
1943 EDL 295
at 298 where the test used was whether the two
statements were palpably inconsistent, a test which is similar to the one used
in
Handel v R
supra.
The crucial question then is whether the two statements on which the charge
is based can be said to be in conflict. First, as regards
the charge sheet, it
is clear that the statement set out in Column A deals with the first body only
and the knife found near that
body whereas the statement in Column 8 deals with
two bodies and the
10 position of three knives. What the statement in Column A
has to say of the first body and the knife does not
conflict with the
statement made in Column B (and what it says in terms of the first body and
knife). It is clear that the statement
contained in Column B is more complete
and contains more facts than the statement in Column A, but that is not a
conflict. The two
statements can be reconciled in the sense that the first one
deals with only a part of the events or facts whereas the later statement
deals
with more facts and perceptions. But they are not mutually exclusive and they
are therefore not in conflict. Before it can
be said that the two statements are
in conflict where one is more complete than the other, the State must prove
beyond reasonable
doubt that it is a necessary implication that, on a proper
construction of the incomplete statement, it excluded all reference to
further
facts relating to the incident under discussion. This is an objective question,
and the answer must, in the present case,
be in the negative. In the absence of
a clear denial
11
that there were more knives khan the one found near the first body, or a
clear statement that only one knife was found at the scene
of the crime, or a
clear indication that the statement was intended to be a full and complete
version of events and observations,
it cannot fairly be said that the first
statement is in conflict with the evidence set out in Column E.
In my view the State failed to prove beyond reasonable doubt a conflict
between the appellant's first statement and his evidence in
Court.
The appeal succeeds and the conviction and sentence are set aside.
P J J OLIVIER Acting Judge of Appeal
HARMS, JA )
) AGREE NICHOLAS, AJA )