S v Thompson and Another
Jurisdiction | South Africa |
Judge | Eksteen J and Addleson J |
Judgment Date | 29 April 1968 |
Citation | 1968 (3) SA 425 (E) |
Hearing Date | 11 December 1967 |
Court | Eastern Cape Division |
C Eksteen, J.:
This is an appeal by the two appellants against their conviction by the resident magistrate of Somerset East on a charge of attempting to defeat or obstruct the course of justice. The first appellant is a medical practitioner practising as such at Somerset East D and the second appellant is a retired bank manager who assists the first appellant with his books of account and also performs certain secretarial duties for him. The indictment preferred against them relates to a proposed enquiry by the South African Medical and Dental Council in terms of sec. 41 of Act 13 of 1928 into an allegation of improper and disgraceful conduct by the first appellant, and alleges E that it was material to such an enquiry that one Anna Magdalena Gouws should testify that she was a patient of first appellant and had been examined by him, and that she had indeed already made an affidavit to that effect. It then goes on to allege that the appellants, being well aware of the materiality and necessity of Mrs. Gouws' testimony to substantiate the complaint against the first appellant, approached Mrs. F Gouws and attempted to persuade her falsely to declare that she had in fact been a patient of the first appellant and had been examined by him, and that they did so with intent to defeat or obstruct the due course of justice and to prevent the first appellant from being dealt with according to law.
G The indictment contained an alternative charge of attempting to commit the crime of subornation of perjury based on the same facts as set out above, but the Attorney-General concedes that, on the evidence led before the magistrate, he cannot ask for a conviction on this alternative charge and it will not be necessary to refer to it any further.
At the trial Mr. Broeksma, who appeared on behalf of the appellants both in this Court and in the court a quo, excepted to the indictment on the ground that it did not disclose an offence cognisable by
Eksteen J
the Court. He contended, in effect, that the crime of attempting to defeat or obstruct the course of justice could only be committed in respect of proceedings before a court of law and that the Medical Council or its disciplinary committee was not a court of law nor was it A in any way concerned with the administration of justice, and that consequently any attempt to interfere with its functions or to obstruct it could not amount to an attempt to defeat the course of justice. The magistrate rejected this contention, and, after hearing evidence on the merits, convicted both appellants. In the present appeal Mr. Broeksma has not only attacked the magistrate's findings on the evidence, but has B also reiterated his contention that the indictment does not disclose an offence cognisable by the Court, and I turn therefore to deal with this contention at once.
The offence of attempting to defeat or obstruct the course of justice C has long been recognised as an indictable offence in our law (cf. R. v Braham, 1 Buch. A.C. 147; R v Foye and Carlin, 2 Buch. A.C. 121; and R v Kaplan, 10 S.C. 259) and it finds its place in our Roman-Dutch Law as a branch of the lex Cornelia de falsis. (R v Cowan and Davies, 1903 T.S. 798). In R v Zackon, 1919 AD 175 at p. 179, MAASDORP, J.A., in discussing the ambit of the offence in our law, says:
D 'Any person contriving to place before a court of justice false evidence, knowing it to be false, with the object of misleading the court in determining a case under trial, comes under the provision of lex Cornelia de falsis (Dig. 48.10). The offences punishable under that law can, as Voet says, be committed in an infinite variety of ways, and amongst others he mentions that of tampering with evidence before a court of justice with a fraudulent or criminal intent. In our courts the practice has...
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