S v Kibi

• Jurisdiction: South Africa
• Citation: 1978 (4) SA 173 (E)

S v Kibi
1978 (4) SA 173 (E)

1978 (4) SA p173

Citation	1978 (4) SA 173 (E)
Court	Eastern Cape Division
Judge	Stewart J and Howie AJ
Heard	May 8, 1978
Judgment	June 19, 1978

Flynote : Sleutelwoorde A

Criminal law — Persons, liability of — Defence of necessity — Not available where imperilling factor is lawful action — Fear of an assault B which is not imminent — Such does not create a state of necessity.

Criminal Perjury — Statutory perjury — Contravention of s 319 (3) of Act 56 of 1955 — Mens rea in regard to accused's belief that each of the statements relied on by the State were true — Onus on accused to establish absence of such mens rea — Willingness of accused to have made an oath — C Effect of s 7 of Act 16 of 1963 — Mere unwillingness to depose not sufficient to ground a defence — Liability can be excluded on a defence of necessity — Onus on State to negative compulsion — Accused pleadi ng necessity by reason of his detention and interrogation under s 22 of Act 62 of 1966 and by reason of his having been assaulted by police — Failure of where such detention and interrogation lawful and assaults had D not compelled him to make the sworn statement.

Headnote : Kopnota

It is abundantly clear that private defence (noodweer) cannot arise where the "attack" is lawful. It would therefore be totally illogical and against the principles of our criminal law to grant the defence of necessity where the imperilling factor is lawful action. What is legally incompetent in the face of lawful action must inevitably apply to both private defence and the defence of necessity.

A submission, on a charge of statutory perjury in contravention of s 319 (3) of Act 56 of 1955, that it is for the State to establish mens rea in the form of culpa is only partly correct. From the last clause in s 319 (3) it is quite apparent that insofar as belief in the truth of the respective statements is concerned it is for the accused to establish the absence of mens rea by proving that he believed each of the statements relied on by the State to be true.

An act prohibited by law and sought to be penalised must be voluntary but F it is not s 7 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 which so decrees for the purposes of a charge under s 319 (3) of Act 56 of 1955 but the general principles of our criminal law. The proviso to s 7 of Act 16 of 1963 deals not with willingness to depose but willingness to make an oath. Mere unwillingness to depose and to make the oath is not sufficient to ground a defence to a charge under s 319 (3): liability can only be excluded if the defence is one of necessity (noodtoestand). Where this is the defence advanced, the onus rests on the G State to negative compulsion.

The appellant was convicted by a regional magistrate of statutory perjury in contravention of s 319 (3) in that he had made a sworn statement to D, a major in the police force, which was in conflict with sworn testimony which he subsequently gave in a court. In an appeal against his conviction, the appellant contended that he had made the statement to D in a state of necessity by reason of (a) the pressure occasioned by H detention already undergone in terms of s 22 of Act 62 of 1966, and the fear of continued, indefinite detention if he did not satisfy his interrogators, and (b) assaults allegedly committed upon him on 24 October 1977 coupled with threats of further assaults. The appellant had made the statement to D on 4 November 1977. At the hearing of the appeal the Court concluded that the magistrate had entertained a reasonable doubt concerning the assaults and that the appellant's evidence on that score was reasonably possibly true.

Held, as to (a), that the appellant could not found a defence of necessity on the detention and interrogation aspect seeing that these powers were lawful.

Held, further, that, irrespective of whether the statement to D was in fact in all its details

1978 (4) SA p174

the truth, it was at least the appellant's belief as to the truth: for reasons known only to himself he chose not to divulge it until 4 November 1977 and his detention due to that decision was his own fault.

Held, accordingly, that the requirement that the threat to the accused was not caused by his own fault had not been fulfilled.

Held, further, as to (b), that, on the facts, the only reasonable inference to be drawn was that appellant's will had not been "overborne by threat of personal injury so that his sworn deposition was not his voluntary act": the statement might well have been to some extent induced by the assaults but that was not the same thing as saying that the assaults compelled it.

Held, further, that whatever fears of further assault the appellant might have entertained on 4 November 1977, such fears could at most have concerned a possible assault at some uncertain future stage and a fear of that kind - which was not of imminent assault-did not in law justify retaliation in self-defence or create a state of necessity. Appeal dismissed.

Case Information

Appeal from a conviction in a regional magistrate's court. Facts not material to this report have been omitted.

C Cubitt for the appellant. C

J M Scott for the State.

Cur adv vult.

Postea (June 19). D

Judgment

Howie AJ:

On the afternoon of 23 October 1977 some sort of public entertainment was in progress in the Rio cinema, New Brighton, Port E Elizabeth. The appellant officiated as a ticket collector at the auditorium entrance. During a pause in the course of the proceedings a man called Monde Spier addressed the audience. According to information obtained by the South African Police shortly thereafter Spier urged those present to desist from going to work on pain of their houses being burnt down, and to commit arson upon the houses of members of the police force and any people who helped them.

F In the early morning hours of 24 October 1977 the appellant was taken into custody by the police at his home in New Brighton. Initially he was removed to the Algoa Park police station but later on the same morning he was taken to the New Brighton police station after which he remained in police custody until 4 November 1977.

G On the latter date he made a statement recorded and attested by one De Jongh, a major in the police force. This statement was made in Xhosa, interpreted by a detective, Detective Sergeant Nel, into Afrikaans and recorded by De Jongh in Afrikaans. The statement was thereafter sworn to by the appellant. The salient contents thereof read as follows:

H "Nadat die vertoning reeds vir 'n geruime tyd aan was het ek op 'n stadium die saal binne gegaan. Met my inkoms het 'n Bantoeman bekend aan my as Monde op die verhoog gegaan, die mikrofoon geneem en 'n toespraak gelewer. Net voordat hy met sy toespraak begin het het hy sy regtervuis met arm uitgestrek die lug opgesteek en die woorde 'Amandla' geuiter. Die gehoor het hom nageboots. Hy het toe gesê dat vanaf Maandag daardie week niemand moet gaan werk nie en hulle moet verstaan dat indien mense werk toe gaan gaan hulle huise afgebrand word. Hy het ook verder gegaan en gesê dat huise van polisie asook die huise van veiligheidspolisiebeamptes en dat die persone wie hulle behulpsaam is afgebrand moet word deur gebruik te maak van petrol bomme. Hy het verder gesê dat die mense moet saamstaan en voortgaan met die onluste. Hy het ook 'n versoek aan die studente gerig en hulle gesê dat hulle moet ophou om die

1978 (4) SA p175

Howie AJ

winkels van die nie-blankes in die lokasie te brand en indien hulle wil brand hulle die winkels in die stad moet gaan brand."

A The appellant was released from police custody after making that statement.

On 8 December 1977 Spier was charged in a regional court with incitement to public violence and/or arson and the appellant gave evidence under oath as a State witness. In the course of his evidence the appellant, referring to Spier, said this:

"I can't remember what he said but when I made my statement the person who B was taking my statement told me that he's reminding me that he said that if people go to work their homes will be burnt by the use of petrol bombs. I didn't in fact hear the accused say this. He did not tell people to burn down the houses of police and security police. To me he seemed to be talking to the police, the security branch and...