S v Theron

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Trollip J and Trengove J
• Judgment Date: 06 November 1967
• Citation: 1968 (4) SA 61 (T)

H Trollip and Trengove, JJ.:

The appellant, to whom we shall refer as 'the accused', was charged in the regional court on twelve counts relating to the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963 (herein called 'the Oaths Act'), and the Prisons Act, 8 of 1959, as amended. He was acquitted on counts 1 and 12 and found guilty on the remainder, on which he was sentenced to ten months' imprisonment on each of counts 2 and 3 to run concurrently, one year on count 4, ten months on each of counts 5 and 6 to run concurrently,

Trollip and Trengove JJ

R100 or six months on counts 7, 8 and 9, and R100 or six months on counts 10 and 11. He has appealed against all his convictions and sentences, except on count 11.

[The learned Judges then set out the history of the charges and proceeded.]

A Before proceeding to deal with the evidence and the individual counts, we think that some general observations about the law and sec. 9 of the Oaths Act and sec 44 (f) of the Prisons Act, 8 of 1959, in respect of which the accused was charged in certain of the counts, can conveniently be made here.

B The relevant part of sec. 9 of the former Act reads:

'Any person who, in an affidavit . . . has made a false statement knowing it to be false, shall be guilty of an offence and liable upon conviction to the penalties prescribed by law for the offence of perjury.'

The offence thus involves two elements that are here relevant: (a) the C falsity of the statement and (b) the accused's knowledge of its falsity. In regard to (a), as in perjury, the 'statement' must be one of fact; a mere expression of opinion is not sufficient, except to the extent that it may constitute a statement of the fact that the opinion was actually held by the accused (see Gardiner and Lansdown on Criminal Law, 6th ed., D vol. 2, p. 1101). Whether the statement of fact is false or not must, of course, turn on its meaning. There was some debate before us about how that meaning must be ascertained, whether objectively or subjectively. As the accused's state of mind at the time he signs the affidavit is a fundamental constituent element of the offence, the test must be, we think, subjective. The meaning must be that which the accused intended the statement to have, for it is to the truth or E falsity of that meaning, and not an objective meaning, which he would have applied his mind at the relevant time. But it can, and will usually, be inferred that he intended to...