Tsobo v Magistrate P Bester and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Daniso J and Cronje AJ
• Judgment Date: 23 August 2023
• Citation: 2023 JDR 3202 (FB)
• Hearing Date: 29 May 2023
• Docket Number: 3376/2022
• Court: Free State Division, Bloemfontein

Daniso J:

[1]

On 23 September 2021 the first respondent, a Bloemfontein district

2023 JDR 3202 p2

Daniso J

magistrate (“the magistrate”) acquitted the third respondent on a charge of perjury privately prosecuted by the applicant after the National Director of Public Prosecutions had declined to prosecute.

[2]

At all material times hereto the applicant and the third respondent were married to each other though estranged and embroiled in acrimonious divorce proceedings. The charge arose from an affidavit deposed to by the third respondent in support of her Rule 43 of the Uniform Rules application in which she sought interim maintenance for herself and the parties’ minor child pending the finalization of the divorce proceedings.

[3]

According to the charge sheet, the third respondent was accused of contravening the provisions of section 9 of the Justice of Peace and Commissioners of Oath Act [1] in that she:

“intentionally, wrongfully and unlawfully gave the following false statements under oath in order to get Rule 43 order to her benefit, by declaring the following:

(a)

The complainant and herself built a R3 million house in Pretoria cash;

(b)

Their marital home is not owing to the Bank;

(c)

The complainant bought his parents a vehicle;

(d)

Each house in Bloemfontein generates an income of approximately R48 000.00;

(e)

R1500.00 monthly clothing for minor child;

(f)

The complainant removed their minor child from his medical aid; and

(g)

She spends R1 250.00 on medical aid for the parties’ minor child.

2023 JDR 3202 p3

Daniso J

[4]

At the trial, the applicant and the third respondent testified. No other witnesses were called. The applicant’s case was essentially that the third respondent had lied under oath in her rule 43 affidavit (Exhibit “A”) with the purpose of inflating the applicant’s financial status and income in order to secure high maintenance which the applicant could ill afford. The third respondent denied any malfeasance and contended that there was nothing fraudulent or even misleading about the evidence contained in her rule 43 affidavit. She stated that the applicant’s financial details that she had alluded to were merely estimates and they were duly accepted by the high court with the result that the relief she sought in that regard was granted.

[5]

After all the evidence was proffered, the magistrate delivered an “ex tempore judgment” [2] stating the following:

“COURT: Madam, we have got two different versions before court of what happened and at this stage the Court cannot decide between the two versions. And it is quite clear in law if the Court cannot decide you must get the favour of the decision of the Court. If this Court at this stage finds that the case against you is not proved beyond a reasonable doubt, then you are found not guilty and are discharged.”

[6]

The applicant is aggrieved by the magistrate’s decision to acquit the third respondent. On 02 June 2022 he filed a request for reasons as provided for in section 310 (1) of the Criminal Procedure Act (the CPA) [3] in terms of which the magistrate was requested to state a case for consideration of this court setting out the question of law on the basis of which the third respondent was found not guilty. The magistrate was also requested to provide his decision on that question of law and the findings of fact he made in that respect.

[7]

The magistrate’s written response was simply:

“KINDLY TAKE NOTE THAT I HAVE NOTING...