Perjury

COMMON LAW PERJURY

Definition The following definitions are sufficient but you
will note that our writers are at variance in the use of
wording. Snyman defines perjury as “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 admonished by, somebody
competed to administer or accept the oath, affirmation or
admonition”. Hunt’s (definition is that “perjury consists in
the unlawful and intentional making upon oath, affirmation or
admonition and in the course of judicial proceedings before a
competent tribunal, of a statement which the maker knows to be
or foresees may be false”.
Definition continues…….
• Joubert defines perjury as “the unlawful and
intentional making of a false statement in the
course of a judicial proceeding which is
material to any issue in the proceeding, by a
person who has taken the oath or made an
affirmation before, or who has been admonished
by, somebody competent to administer or accept
the oath, affirmation or admonition”.
Elements
• Making of a false statement (The act) The
statement is usually verbal, but it may also be in
affidavit form (Jarrard 1939 EDL 102; Beukman 1950
(4) SA 261 (O) 264)). The statement must be false,
that is it must be untrue or contain a falsehood.
Our courts have not yet decided whether the
perpetrator’s statement requires a subjective or
objective falsity (i.e. where he is in fact
unwittingly telling the truth, but he is under the
impression that he is intentionally making a false
statement). In English law a subjective falsity is
required, and this means that a person who thinks
that he is lying but is in fact unwittingly
telling the truth, commits the crime of perjury.
Elements continues…..
• Although Hunt 139 is satisfied with a subjective falsity the
weight of authority in our practice favours objective
falsity as a requirement. (Cf. Snyman 342; Joubert 191 and
De Wet en Swanepoel 435.) Our courts indicate that perjury
is committed when a false statement is made, and not if a
statement is made which is false to the knowledge of its
maker (April (1894) 9 EDC 177; Amonda Ayar (1905) 26 NLR 96
100; McIntosh (1910) 4 BAC 63 64). In dealing with the
procedural provisions relating to perjury, section 101 (1)
of the Criminal Procedure Act, 1977 (Act 51 of 1977) refers
to the “making of a false statement”, which indicates an
objective falsity. If a person tells the truth on oath while
he subjectively intends to lie it is an attempt to do the
impossible which may be punished as attempted perjury or
obstructing the course of justice (or attempting to do so)
(See Snyman 347; Joubert 193; Davies 1956(3) SA 52 (A)).
Elements
Unlawfulness
Coercion may function as a justification ground (Baxter
1929 EDL 190-191). In Mokwena 1948 (4) SA 772 (T) 773
coercion was incorrectly regarded as a ground excluding
wilfulness (mens rea). It is, however, no defence if a
witness shortly after the making of a false statement,
for example during cross-examination, admits that the
statements is false and then tells the truth (Ngca 1911
EDL 162 165; Baxter supra 193; Maarohanye 1932 OPD 110
114-115). If a witness who makes a false statement
corrects his mistake at the first opportunity, and
explains that he has been misunderstood, and that he did
not have the intention of making a false statement, it
may be indicative that he lacks mens rea (Cf. Baxter
supra 193; Maarohanye supra 114-115).
Elements…..
On oath Perjury is committed only if the false statement is made in
the following forms, namely:
• (a) on oath (see section 162 of the Criminal Procedure Act, 1977
(Act 51 of 1977),
• or (b) an affirmation to speak the truth (see section 163 of the
Criminal Procedure Act, 1977 (Act 51 of 1977),
• or (c) after the presiding officer, in the case of certain classes
of persons, e.g. young children, had admonished them to speak the
truth (see section 164 of the Criminal Procedure Act, 1977 (Act 51
of 1977), and Saul Mapekula (1897) 11 EDC 126). The person who
administers the oath or its equivalent must be competent to do so
(Martheza 5 (1885) 3 HCG 456 457; McKay 1897 CLJ 20); Mahomed
Hossain 1913 CPD 841 844). A person who takes the oath in its
usual form without objection, cannot afterwards on a charge of
perjury raise the defence that the oath in that form was not
binding on his conscience (Kara 1917 TPD 463).
Elements
In the course of a judicial proceeding.
• The false statement must have been made in the course of a judicial
proceeding, either in a criminal or civil case (Ah Chee 1912 AD 231 237;
Jarrard 1932 EDL 102 103; Hassa 1939 NPD 161; Mazibuko 1954 1 PH H100 (N);
Du Toit 1950 (2) SA 469 (A); Carse 1967 (2) SA 659 (C) 660). The offence
is not committed if the false statement is made during the proceedings of
an administrative tribunal (Ah Chee supra 241; Carse supra 659).
• The term “judicial proceeding” is not confined to the proceedings in a
court of law, but it nevertheless refers to proceedings in which rights
and duties are legally determined by a competent authority on a
consideration of facts (Beukman 1950 (4) SA 261 (O) 263; Carse supra 663-
664). In Carse 1967 (2) SA 659 (C) 663-664 it was suggested that the
following criteria should be applied to determine whether the requirement
of a “judicial proceeding” has been satisfied, namely: “(a) there must be
two or more parties involved ...; (b) there must be a lis or issue between
the parties; (c) the issue must be laid before the tribunal for final
determination; and (d) the decision ... must affect the rights and/or
liabilities of the parties before it, ...”. The first criterium is not
correct because an ex parte motion proceeding is also a judicial
proceeding , despite the fact that there is only one party involved.
Elements…..
• Intention
Intention is a requirement (Siwahla 1930 EDL 236 238; Maarohanye
1932 OPD 110 114; Mokwena 1948 (4) SA 772 (T) 773; Bushula 1950 (4)
SA 108 (OD) 116). The perpetrator must know, or at least foresee
the possibility that his statement may be false (McIntosh (1910) 4
BAC 63 64; Mokwena supra 773; Bushula supra 116 117). In the latter
case it was decided that dolus eventualis is existent if the
accused acts recklessly in not caring whether the statement is
false and failing to qualify his statement (Bushula supra 116-117).
In Bissett 1990 (1) SACR 285 (ZS) 290 it was stated that if a court
has to infer from the evidence that the required intent has been
proved, the following consideration is important, namely: “If an
untruth is uttered on a matter of deep significance or
unforgettable materiality, it may well be inferred that it was
uttered deliberately (i.e. with actual intent) or, in a proper
case, recklessly (i.e. with legal intent). But if it is uttered on
a matter of no significance or of merely theoretical materiality,
the inference tends in the other direction.”
Elements continues……
• Mere inadvertence or carelessness is not
sufficient (Mokwena supra 773). As the mens rea
has to refer to all the elements of the crime,
the perpetrator must be aware of the fact that
he is under oath (Shongwe 1966 (1) SA 390 (RA)
393), and that he is making the statement in
the course of judicial proceedings (Snyman 324;
Joubert 197) and that it is false.
Statutory perjury
• The present position is regulated by section 319(3) of
the Criminal Procedure Act, 1955 (Act 56 of 1955) which
reads as follows:
• “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 each statement he believed it to be
true”.
Elements
The act.
• Two statements made at different times Either or both statements may be
oral or in writing and it does not matter whether either or both of the
statements were made in the course of a judicial proceeding or
extrajudicial (Ex Parte Minister of Justice: in re R v Bhyala 1943 AD 135;
Mahomed 1951 (1) SA 439 (T) 441). The word “thereafter” and the reference
to “another oath” indicate that the statements must be made at different
times (Mahomed supra 442; Grainger 1958 (2) SA 443 (AD) 446).
• Conflicting statements. The state only has to prove that the two sworn
statements conflict; it need not prove which statement is false (Mahomed
supra 442). The existence of conflict is for the most part a question of
fact (Sneezum 1943 EDL 295; Shole 1960 (4) SA 781 (T) 789; Mazwai 1979 (4)
SA 484 (T) 468). The conflict must be clear, i.e. the words being
inconsistent in their context (Sneezum supra 295; Shole supra 789-790).
Where the two versions are reconcilable, i.e. when they are mutually
destructive, that a conflict arises between them (Randas 1994 (2) SACR 37
(A)). If the words are used figuratively in one statement and in other
literally there is no such conflict (Mazwai supra 486). There is no
conflict if the second statement merely consists in a denial that the
first was made (Mofekeng 1957 (2) SA 162 (O))
Elements continues……..
On different oaths.
• Both statements must have been made on oath. If
the contradictory statements are made under the
same oath, the crime under discussion is not
committed. Section 319(3) specifically uses the
words “thereafter on another oath” and in
interpreting the section its ordinary meaning must
be given to the words used (Buthelezi 1952 (1) SA
511 (O) 513). If a 9 person thus gives evidence
under oath in a court and the court adjourns, but
as its resumption he is warned that he is still
under oath, his evidence is tendered under the
same oath, i.e. it is now a new oath (Buthelezi
supra 513).
Elements continues…..
Unlawfulness.
• This requirement also applies to the statutory crime created
by section 319(3) of Act 56 of 1955. In Bacela 1988 (2) SA
665(E) it was indicated that coercion functions as a
justification ground.
Intent
• Although intent in any of its forms need not be proved by
the state (Kibi 1978 (4) SA 173 (EC) 176), this is not a
crime in which intent is excluded. On the state proving the
prohibited elements of the act and unlawfulness. (See Blom
1977 (3) SA 513 (A) 532; Waglines (Pty) Ltd 1986 (4) SA 1135
(N) 1143; Lehmbeckers Transport 1989 (2) SA 53 (A) 61). The
onus is hereafter on the accused to prove that he believed
that he was speaking the truth when he made both statements.
Elements continues…..
Onus on accused.
• Under the proviso to section 319(3) of the
Criminal Procedure Act, 1955 (Act 56 of 1955) a
defence is available to the accused. The onus
is on him to prove on a preponderance of
probabilities that he believed that he was
speaking the truth when he was making both
statements.
OTHER STATUTORY PROVISIONS
RELATING TO THE MAKING OF FALSE
STATEMENTS
• There are many statutes in which the making of a false
statement under oath before certain officials or bodies
is made punishable. These are not discussed, but the
following provisions which relate to these offences are
mentioned for information only.
(a)Section 139(2) of the Insolvency Act, 1936 (Act 24 of
1936).
(b)Section 24 of the Explosives Act, 1956 (Act 26 of
1956).
(c)(f) Section 20(3) of the Inquests Act, 1959 (Act 58
of 1959).
(d)(g) Section 36 of the Marriage Act, 1961 (Act 25 of
1961).