R v Grainger

• Jurisdiction: South Africa
• Judge: Schreiner JA, Steyn JA, Malan JA, Price AJA and Van Blerk AJA
• Judgment Date: 24 March 1958
• Hearing Date: 11 March 1958
• Court: Appellate Division

Schreiner, J.A.:

The appellant was convicted by a magistrate of contraveing sec. 131 (3) of Act 31 of 1917 as amended by sec. 20 (b)

Schreiner JA

of Act 46 of 1935 and sec. 26 of Act 29 of 1955, and was sentenced to three months' imprisonment. The Cape Provincial Division dismissed his appeal to it (see 1957 (4) SA 247), but granted him leave to appeal to this Court.

The statutory provisions in question may be said, broadly speaking. to A penalise the making of contradictory statements under separate oaths, unless the swearer believed each statement to be true when he made it. The 1935 provision, which first made such conduct an offence, said that the perpetrator was to be deemed to be guilty of perjury. The consequence, so it was held in Rex v Rajah, 1936 AD 45, was that it was not sufficient for the purposes of a conviction that there should be one competent and credible witness to the accused's guilt, for sec. 284 B of Act 31 of 1917 (now sec. 256 of Act 56 of 1955) required that there should in the case of perjury be other competent and credible evidence as well. The provision substituted by Act 29 of 1955, which came into force on the 10th May 1955, only made the perpetrator guilty of an offence, without giving that offence a name. He was not deemed to C be guilty of perjury though the penalties for perjury were made applicable. Consequently the Crown is not obliged by law under the substituted provision to adduce more evidence than that of a single competent and credible witness before it can establish the accused's guilt.

The appellant made a statement under one oath on the 23rd March 1955, D before the substitution, and a contradictory statement under another oath on the 23rd May 1955, after the substitution. The question in issue is whether he thereby committed an offence under the provision as substituted in 1955, or whether the latter only applies to cases where both statements have been made after the 10th May 1955.

E The substituted provision, as it appears in sec. 26 of Act 29 of 1955, which was signed in English, reads -

'(3) 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 the first-mentioned statement. he shall be guilty of an offence and may, on an indictment, summons or charge alleging that he made two conflicting 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 F proved that when he made each statement he believed it to be true.'

A minor alteration in the language appears in the English text of sec. 319 (3) of Act 56 of 1955, the existing consolidated Act, which was signed in Afrikaans, but the change has no bearing on the present question.

G The case for the appellant is that there is a presumption against the retrospective operation of statutes and he contends that where a statute creates an offence the whole of the transaction constituting the offence, from beginning to end, must have been done after the coming into force of the statute. Otherwise there would be retrospectivity. The word 'retrospective' is capable of different meanings (see per POLLOCK, H B., in Rex v Portsea, 7 Q.B.D. 384 at p. 386). What may be called the strict meaning was referred to in Shewan Tomes & Co v Commissioner of Customs and Excise, 1955 (4) SA 305 (AD). But what we are concerned with is not whether the case raises an issue of r retrospectivity in the strict sense but whether the 'ambit and scope' of the provision covers cases where the first statement was made before the 10th May

Schreiner JA

1955. That is a question of interpretation and regard must certainly be had to the general principles that statutes should, if reasonably possible, be construed as operating for the future only and not as taking away or interfering with existing rights or as penalising acts done before the statute came into operation.

A The special feature of the present provision is the requirement of two acts, the one coming before the other, before the offence comes into existence. I have found no treatment of any closely similar situation in the authorities. Some persuasive effect may, perhaps, be given to the B remarks of LORD DENMAN in R v St. Mary Whitechapel, 116 E.R. 811 at p. 814, and R v Christchurch, 116 E.R. 823 at p. 825. LORD DENMAN was dealing with the much litigated provisions of the Poor Law and in particular with removals from one parish to another. In the St. Mary case he said, in reference to the presumption against a statute's being given a retrospective construction,

'We have before shewn that the statute is in...