Once again, however, it has never happened that an accused person that did testify at his own trial, and were caught out at lying under oath, were charged with perjury. The reason is simply because, in most such instances, the accused would have been convicted of the original crime charged and, his mendacity as a witness would have had an effect on sentence (lack of remorse etc.) It would therefore most probably amount to double jeopardy should he be charged and punished again. Since it has never happened in the past 350 odd years of South African common law history, it is dubious if it would ever happen in future.

Nevertheless, I take it you concede that s 319 of the old CPA is not applicable in the Motata matter and, neither can he be charged with the common law crime of perjury because he never made a statement under oath which was proven to be false.

“I’m afraid I’ll have to turn down your offer of a drink”

Easy girl we just met, you moving to fast there for me, next you gonna ask me out on a date.

Exaclty The reason for cross-examination is to test the credibilty/strength/truthfullness of the testimony. Should it be found that thewitness lied under oath; a charge of perjury will then be put to the claimant who lied

Thats why your are wrong on this score
“In South Africa, an accused pesron that testifies, and is caught out at lying under oath, can never be prosecuted for perjury.”

However I must concede that Motata did not testify “That is one of the reasons that Desmond nair found that the state’s version had been proven beyond reasonable doubt.”

I admit my mistake there

As for you last paragraph

“As far as practice is concerned – there are many examples where state witnesses, witnesses in civil matters and people who made false affidavits (not sublect to privilege, mind you)”

Yes and the practice is to sue for damages and there are many cases of that

Never say never

check out Cornwell Tshavhungwa

He was found guilty of perjury, drunken driving and on two fraud charges.

He committed perjury when he testified under oath in the Pretoria High Court that he played a role in prosecuting the Bronkhorstspruit cash heist gang. He claimed that because of his “role” in that case, he would be in danger in prison.

He once again committed perjury when he said in the Pretoria regional court that he was not involved in any remunerated employment outside the NPA.

s 319(3) Act 56/55 (statutory pejury) is not applicable since it cannot be proven that Motata made two statements under oath. Firstly, his statement to his Counsel, even if under oath, is protected by lawyer/cleint privilege. (That would apply to every other accused person as well.)Moreover, we do not know whether he said something else in that matter than what he did during his trial. An accused person has a right to plead not guilty and to test the case against him, even if he had in confidentiality disclosed to his lawyer that he is in fact guilty. If the state cannot prove its case, then he is entitled to his discharge. Lastly, Motata did not testify (under oath, that is) in his own case. He pleaded not guilty and exercised his right to silence. No plea explanation was given ito s 115 of the Criminal Procedure Act 51 of 1977. The explanation that he only had tea was given extra-curially, never in court. But even if such a plea explanation was given during plea or during cross-examination of state witnesses, it is still not under oath and not a statement that qualifies as a conflicting statement for purposes of s 319. He also did not testify in his own defence. After the prosecution closed its case, and after a failed attempt to get discharge in terms of s 174 of the CPA at the closure of the case for the prosecution, he closed his case and relied on legal argument for an acquittal. He did not testify under oath. That is one of the reasons that Desmond nair found that the state’s version had been proven beyond reasonable doubt.

As far as practice is concerned – there are many examples where state witnesses, witnesses in civil matters and people who made false affidavits (not sublect to privilege, mind you) have been prosecuted and punished for perjury. There is however not one example in South African history where an accused person that has been caught out at lying under oath has been prosecuted for perjury and, for the reasons I advanced above, there will never be such a case in future. Believe you me.

“In South Africa, an accused pesron that testifies, and is caught out at lying under oath, can never be prosecuted for perjury.”

I disagree

Criminal Procedure Section 319(3) of Act 56 of 1955

“If a person has made any statement on oath whether orally or in writing, and he
thereafter on another oath makes another statement as aforesaid, which is in conflict
with such first mentioned statement, 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 offence and punished with the penalties prescribed by law for the crime of
perjury, unless it is proved that when he made such statement he believed it to be true.”

Motata did testify in his own defence…he pleaded not guilty and that he only drank tea.

However where the conflict is obvious a specific indication of the differences is actually superfluous as the possibility of prejudice falls away.The onus then falls upon the accused to prove on a balance of probability that he believed in the truth he was drinking tea

@Kevin yesterday…

The issue is not that he was drunk. Obviously we all make mistakes.

The issue is that he claimed he was not drunk. This is called lying.

I find it incredibly problematic when a judge lies.

The presiding judge also found that the witness audio recordings were accurate. In those recordings, Motata made racial slurs.

I find the fact that a judge is racist also very problematic.

I don’t care about Hlophe, or the fact that Motata is black. I do care that a judge lied and made racist remarks. I don’t see how this is remotely unreasonable, or “inhumane”.