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

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Act (except for sections 319(3) and 384) and the 1963 ordinance (except for sections 300(3) and 370) have since been repealed by section 344(1) of the Criminal Procedure Act, 1977.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."

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.

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.

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 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".

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.