Making a false statement under oath or
affirmation in the course of a judicial proceeding is a crime under South
African common law. The common law is supplemented by a statutory crime, namely
making conflicting statements under different oaths (contravention of S319 (3)
Act 56 of 1955). It is also a crime to make a false statement in an affidavit.
The rationale for the criminalisation of
these offences is that witnesses should always tell the truth and nothing but
the truth in courts or in affidavits. Without this the system will not be able
to function effectively and with integrity.
Elements
(a)
making of a declaration (b) which is false (c) under oath or in a form
equivalent to an oath (d) in the course of judicial proceeding (e) unlawfulness
(f) intention
This crime consists in the unlawful and
international making of a false statement in the course of a judicial
proceeding by a person who has taken the oath or made an affirmation before, or
who has been admonition by, somebody competent to administer or accept the
oath.
•False
statements: means verbal or in writing in a form of an affidavit. Although the
point has not been authoritavely
decided in South Africa, it seems that the statement must be ‘objectively
false’.
This means that a witness who
intends(subjectively) to tell lie in court, but the statement in actual fact
turns out to be true, commits not perjury but a crime of attempted perjury, or
defeating or obstructing the course of justice.
•The
state does
not need to prove that the false statement is material to
any issue to be decided by court.
•The
case of perjury can only be committed in the course of a judicial proceeding
(criminal or civil). Note that affidavits made to the police in the context of an investigation do not
qualify as ‘statements made in the course of judicial proceedings’
•Oath,
affirmation or admonition: this requirement implies that any statements by a
legal representative in court, as part of legal argument (in other words not
testimony under oath)will be excluded from the ambit of the common-law crime
perjury. It is important to note that witnesses must be sworn in, or the
affirmation must be accepted by a court official who is competent.
•Intention:
the accused must know (or at least foresee) the possibility that his statement
maybe false. Thus dolus eventualis
will
be sufficient. It is also necessary to show that the accused knew that he was
under oath(affirmation or admonition), and the relevant statement was made in
the course of judicial proceedings.
This
kind of crime is in contravention of S 319 (3) of 1995 which provides: if
a person ahs made any statement on oath whether orally or in writing, and he
there after on another oath makes another statement as aforesaid, which is in
conflict with such first- mentioned statements, he shall be guilty of an
offence and may on a charge alleging that he made the two conflicting
statements and upon proof of those two statements and without proof as to which
of the said statements was false, be convicted of such offences and punished
with the penalties prescribed by law for the crime of perjury, unless it is
proved that when he made each statement he believed it to be true.
•unlike
common law perjury, this statutory form of perjury does not require that the
statements be made in the course of a judicial proceedings.
What state has to prove: is
that the accused on two occasions made two conflicting statements under oath
and that that the statements conflict each other. Mohamed
1951 1 SA 439 and Mofokeng
1957 2 SA 162 (o)
MAKING
FALSE STATEMENTS IN AN AFFIDAVIT
•Contravention
of S9 of Act 16 of 1963 of the Justices of the Peace & Commissioners of
Oath Act provides that any person who in an affidavit, affirmation or take the
declaration in question, has made a false statement knowing it to be false,
commits an offence. This crime is completed when the false statement is made (in proceedings
other than testimony under oath during court proceedings) the statutory
requires mens
rea
in
the form of intent.
•Case
law s v Zuma
1995, S v Mbatha 1996,
S v Theron 1968
OBSTRUCTING
POLICE IN THE PERFOMANCE OF THEIR DUTIES
•Crimes
against the administration of justice do not only involve the and the
functioning of the courts but importantly and crucially also the work of the
police.
•S
67 (1) of the SAPS Act provides that any person who resists or wilfully hinders
or obstructs a police in the exercise of his powers or performance of his
duties or functions, commits an offence. Interference with a police officer’s
uniform or equipment also constitutes a criminal offence.
•Dolus eventualis
is
sufficient as where one foresees the possibility that it is a policeman he is
obstructing but nevertheless continues with his conduct
DEFEATING OR OBSTRUCTING THE COURSE OF
JUSTICE
•This
crime consist of unlawfully and intentionally
engaging in conduct that defeats the course or administration of
justice.
•in S
v Burger the court referred to the difference between ‘defeating’ and
‘obstructing’ the course of justice. To defeat the course of justice, the
accused must in fact have defeated the course of justice (for instance where an
innocent person has been convicted as the result of the actions of the accused)
obstructing is something less: conduct that could lead to the end result of
defeating the course of justice.
•Its
important to note that these are not two distinct crimes. It is a single crime
of defeating or obstructing the course of justice
•The
accused conduct can
take many forms for an example: influencing or trying to influence a witness,
fabricating evidence, hampering the investigation of a crime scene and so on.
Depending on facts and circumstances, such actions can overlap with crimes such
as forgery, fraud, extortion and corruption
•Elements: (a)
conduct (b) which amounts to defeating or obstructing (c) the course or
administration of justice and which takes place (d) unlawfully and
(e) intentionally
DiscussionJ
•Warning
other motorists about speed traps: does this constitute obstruction of justice?
There are two seemingly conflicting
judgements on this point. In S v Naidoo the court held that warning other
motorists about the presence of a speed trap is to interfere with the due
administration of justice. However in S v Perera the court held that the accused can only
be guilty of obstructing of defeating the course of justice if he had reason to
believe that the approaching vehicle exceeded the speed limit. If the accused
driver is simply warning people in general about the presence of the speed, he
is in effect warning other drivers to obey the law, which can hardly be a
crime. Common sense approach in Perera is more like it!!!!J
ESCAPING
FROM CUSTODY
There are three (3) groups of offences
relating to escaping from lawful custody namely:
1)The common-law crime of escaping: in
terms of common law it is a crime to escape from lawful detention. Even a
person who assist in the scape is equally liable.
2)Escaping and aiding escaping before
incarceration: S
51 of the criminal procedure Act 51 of 1977 deals with escaping after a lawful
arrest but before the accused is lodged/ out into a police cell…… this is a
criminal offence. Busuku
2006 1 SACR 96 (E). even
a person who assists commits an offence.
3)Offences created in correctional
Services Act relating to escaping: S117 provides that any prisoner who
escapes from custody commits a crime. Be it the prisoner collaborates with a
correctional official or conspires with any other person to leave prison
without lawful authority or under false pretences also commits a crime
Max 10 years impr
or a fineL
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