Rex v Beukman

• Jurisdiction: South Africa
• Citation: 1950 (4) SA 261 (O)

Rex v Beukman
1950 (4) SA 261 (O)

1950 (4) SA p261

Citation	1950 (4) SA 261 (O)
Court	Orange Free State Provincial Division
Judge	De Beer JP, and Smit AJ
Heard	June 26, 1950; June 27, 1950
Judgment	August 31, 1950

Flynote : Sleutelwoorde

Criminal Law — Perjury — What amounts to — False statement on oath to a police officer for purpose of laying a charge — Not capable of founding a charge of perjury at common law — Convicted D however for contravening sec. 9 of Act 16 of 1914 (as amended).

Headnote : Kopnota

A false statement on oath to a police officer who is a commissioner of oaths for the purpose of laying a charge against another cannot found a E charge of perjury at common law.

Rex v Ah Chee (1912 AD 231) applied.

Appellant had been charged with the crime of perjury under common law or alternatively, with contravening section 9 of Act 16 of 1914 as amended by section 82 of Act 46 of 1935. He was convicted on the main charge. The false statement relied on by the Crown had been made by the appellant on oath to a member of the police force, a commissioner of F oaths, on the occasion when the appellant laid a charge of desertion against a native. On an appeal,

Held, as the false statement had not been made in a judicial proceeding and had not been part of the evidence of a witness in such proceedings that the conviction on the main charge should be set aside.

Held, further, however, as the false statement had been made G extra-judicially that the appellant should be convicted of the alternative charge.

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.

J. N. C. de Villiers, K.C., for the appellant: The difference between the main charge and the alternative charge is that the former is made in H the course of judicial proceedings and the latter not; see Gardiner & Lansdown, South African Criminal Law & Procedure (5th ed., Vol. II, pp. 1072, 1064); if the declaration is not made in the course of judicial proceedings it must be charged under the alternative; cf. Rex v Asslam (1936 CPD 527); Rex v de Beer (1937 TPD 362); if the declaration is made in the course of judicial proceedings the charge may be in the alternative; cf. Rex v Prinsloo (1939 OPD 15). Under a perjury charge

1950 (4) SA p262

sec. 284 applies; see Rex v Rajah (1936 AD 45); Rex v Matakane (1947 (3), S.A.L.R. at p. 725 (O.P.D.); 1948 (3), S.A.L.R. at p. 389 (A.D.)). Not two witnesses are necessary, but corroboration; but it must be true corroboration, viz., inconsistent with the accused's innocence; A it is not the same as in the case of an accomplice. But if the charge is under sec. 9 of Act 16 of 1914 as amended, the rule does not apply; see Rex v Gold (1938 TPD 397); Rex v Prinsloo (supra). But it is questionable whether this is applicable in a case where the charge could also have been brought as ordinary perjury.

B In the present case the charge is that the affidavit was made with a view to 'geregtelike stappe' being taken against the person whom appellant accused of theft and desertion of service; apparently that is a sufficient allegation that the affidavit was made in the course of C judicial proceedings; see Gardiner & Lansdown (supra, Vol. II, p. 1064); Rex v Lottering (9 S.C. 199, 201); Rex v Jarrard (1932, E.D.L. 102); Rex v Ah Chee (1912 AD 231, 238); Rex v du Toit (1950 (2), S.A.L.R. 469) (A.D.)). The only point therefore which is pressed on appeal is that it has not been proved beyond a reasonable D doubt that the false statement was made wilfully and knowingly. Perjury will not have been committed if the accused believed the report made to him, because he would not have been wilful. The Crown does not discharge the onus on it if there is a reasonable probability of the story of the accused being true; see Rex v Blume (1931, E.D.L. 149); and cf. Rex v. E Difford (1937 AD 370). As to corroboration, see Rex v Kristusamy (1945 AD at p. 558); Rex v Ncanana (1948 (4) S.A.L.R. at pp. 405 - 6 (A.D.)); Rex v Gumede (1949 (3), S.A.L.R. 749); Rex v Dikant & Others (1948 (1), S.A.L.R. at p. 700). As to the distinction between F the degree of proof required by sec. 284 of Act 31 of 1917 and the requirement of corroboration, see Gardiner & Lansdown (supra, Vol. I, p. 511). As to what is in the course of judicial proceedings, see Rex v Asslam (supra).

W. L. Verschuur, for the Crown: As to the main charge, see Rex v Asslam G (1936 CPD at p. 528); Rex v Prinsloo (1939 OPD 15); Gardiner & Lansdown (supra, Vol. II, pp. 1064 - 5). In any event, the facts disclose a contravention of the alternative charge, a conviction on which may be substituted on appeal; see secs. 98 (2) and 103 (4) of Act 32 of 1944; Rex v Phillips (1949 (2), S.A.L.R. 671); Rex v du Toit (1950 (2), S.A.L.R. 469); Rex v Prinsloo (supra, at p. 19 et seq.); Rex H v. Pietersen (1944 CPD 340). The provisions of sec. 284 of Act 31 of 1917 do not apply to the alternative charge; see Rex v Gold (1938 TPD 397); Gardiner & Lansdown (supra, Vol. I, p. 512; Vol. II, p. 1073). The witness Daniel is not an accomplice. See Gardiner & Lansdown (supra, Vol. I, pp. 525 - 7).

de Viliers, K.C., in reply.

Cur adv vult.

1950 (4) SA p263

Postea (August 31st).

Judgment

Smit, A.J.:

Appellant was charged with the crime of perjury under the common law or alternatively with contravening sec. 9 of Act 16 of 1914, as amended by sec. 82 of Act 46 of 1935. He was convicted of the main A charge and now appeals against that conviction. The false statement relied on by the Crown in respect of both charges was a statement on oath made by appellant at the police station, before Lance Sergeant Buckle of the South African Police, who was admitted to be a commissioner of oaths, on the occasion when appellant laid a charge of B desertion against a native, Jacob. No proceedings were subsequently instituted against Jacob.

The first point argued on appeal was that a false statement made under oath to a police officier does not amount to a statement in the course of judicial proceedings. In the case of Rex v Ah Chee (1912 AD 231) C it was laid down that one of the essentials of the crime of perjury is that the false statement must be made in the course of judicial proceedings. In his judgment in that case the learned Chief Justice, LORD DE VILLIERS, stated:

'For myself I have always regarded the definition of perjury as given by the Cape Legislature in dealing with native territories by the 106th section of Act 24 of 1886 as equally applicable to the law of D the rest of the Colony: Perjury is there defined as 'an assertion as to a matter of fact, opinion, belief or knowledge made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open Court or by affidavit or...