S v Somses (CA 51 of 1998) [1999] NAHC 7 (2 August 1999)

S v Somses (CA 51 of 1998) [1999] NAHC 7 (2 August 1999)

The conviction under the inapplicable South African statute was invalid. The requirements for statutory perjury under the applicable Namibian law were not fully admitted by the respondent, as the statements differed and were not properly put to her. There was a failure to admit all elements of the charge, and the magistrate should have entered a plea of not guilty and allowed the prosecution to prove its case.

Citation
[1999] NAHC 7
Parties
Appellant: The State; Respondent: Bettie Somses
Court
High Court
Jurisdiction
Namibia
Judgment Date
2 August 1999
Case Number
CA 51 of 1998
Procedural Posture
Criminal Appeal / Judgment on Appeal
Outcome
conviction and order set aside; matter remitted to magistrate
Legal Topics
Perjury, Statutory Interpretation, Amendment of Charge, Failure of Justice, Prejudice to Accused
Source Language
English
Criminal Law Criminal Procedure Perjury Statutory Interpretation Amendment of Charge Failure of Justice Prejudice to Accused

Case Brief

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Parties

The State

Appellant

Bettie Somses

Respondent

Procedural Posture

Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether conviction under an inapplicable statute is valid
  2. 2 Whether the conviction can be substituted under the correct statute without prejudice or failure of justice
  3. 3 Whether all elements of the statutory perjury offence were admitted by the respondent

Ratio Decidendi

The conviction under the inapplicable South African statute was invalid. The requirements for statutory perjury under the applicable Namibian law were not fully admitted by the respondent, as the statements differed and were not properly put to her. There was a failure to admit all elements of the charge, and the magistrate should have entered a plea of not guilty and allowed the prosecution to prove its case.

Court Disposition

conviction and order set aside; matter remitted to magistrate

Orders

  • The conviction and order warning and discharging the respondent are set aside.
  • The matter is remitted to the magistrate to amend the charge to refer to section 300(3) of the Criminal Procedure Ordinance, 1963, to enter a plea of not guilty, and to proceed with the trial.