S v Kgogong

• Jurisdiction: South Africa
• Judge: Trollip JA, Kotzé JA and Viljoen AJA
• Judgment Date: 05 May 1980
• Citation: 1980 (3) SA 600 (A)
• Hearing Date: 22 February 1980
• Court: Appellate Division

Trollip, JA.:

On 23 March 1976 in the trial of S v Molokeng and

Others under the Terrorism Act 83 of 1967 in the Witwatersrand Local C Division, the appellant, a young Black man about 25 years old, was called as a State witness. He had previously made a written statement to the Security Branch of the Police which, on 3 November 1975, he affirmed as being true. In this statement he had incriminated one of the accused, Phumza Dyanti, in the Molokeng trial. Soon after commencing his testimony D in chief, he, of his own accord, alleged that he had not made the police statement, on which his evidence was being led, voluntarily. He explained further in evidence that, while being detained under s 6 (1) of the Terrorism Act, he had been told by Captain Cronwright of the Security Police ("SP") what to include in his statement, that he had been forced by them to comply therewith in order to avoid "further punishment or assault", and that material parts of the statement were therefore untrue. E In support of those allegations he identified a piece of paper (exh E) put before him by defence counsel during cross-examination. This document, he said, emanated from Capt Cronwright during his detention. According to the latter's instructions, he alleged, the topics it listed had to be dealt F with in his statement according to those instructions. When he was released from detention on 14 November 1975, having completed and affirmed his statement, he took exh E with him and handed it into his attorney's offices. Phumza Dyanti was acquitted at the end of the State case in the Molokeng trial.

Arising out of those events appellant was charged in the Pretoria regional G court on two counts, each having an alternative count. He was acquitted on each of the main counts. They are no longer relevant to these proceedings. It suffices merely to explain that he was acquitted on the main count 1 of committing statutory perjury under s 319 (3) of the Criminal Procedure Act 56 of 1955 because his police statement was only affirmed and not sworn to by him.

H The alternative count 1 alleged that appellant had attempted to defeat or obstruct the course of justice in that he had "unlawfully" and "with intent to defeat or obstruct the course of justice" testified at the Molokeng trial that he had not made his police statement "voluntarily". The alternative count 2 alleged that appellant had stolen exh E from the possession of the SP and was therefore guilty of theft.

The regional court found appellant guilty on both alternative counts. He was sentenced respectively to two years' imprisonment and a fine of

Trollip JA

R10 or 10 days' imprisonment. The Transvaal Provincial Division dismissed his appeal but granted him leave to appeal to this Court on both counts.

A We canvassed with counsel the meaning and effect of the alternative count 1. In the trial court the State unfortunately refused a reasonable request by the defence to elucidate, by further particulars, what it meant by "unlawfully". However, it ultimately became common cause before us that B that meant "falsely to his knowledge". So the gist of the charge in the alternative count 1 was that at the Molokeng trial appellant had to his knowledge falsely testified that he had not made his police statement voluntarily. (The meaning of...