What is perjury?

Understanding the essential elements of the crime of perjury

Perjury is a serious criminal offence that fundamentally undermines the administration of justice by corrupting the integrity of legal proceedings. It involves the deliberate telling of a falsehood while under oath or affirmation in a judicial setting. One could argue it is the legal equivalent of serving spoiled milk at a dinner party: not only does it leave a bad taste, but it also ruins the entire affair for everyone involved.

Formally defined, perjury is the unlawful and intentional 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 competent to administer or accept the oath, affirmation or admonition. It is quite the mouthful. While sometimes inaccurately referred to as “statutory perjury,” it is an independent substantive offence.

The essential elements of the crime of perjury are the following:

The making of a declaration – This refers to the act of providing a statement, which can be oral testimony or a written declaration like an affidavit.

Which is false – The statement made must be factually untrue.

Under oath or in a form equivalent to an oath – The person making the statement must have been sworn in, made an affirmation, or been admonished to speak the truth by a competent authority.

In the course of a judicial proceeding – The false statement must be made during legal proceedings recognized by law. This broadly includes trials, preparatory examinations, and even applications where affidavits are submitted.

Unlawfulness – The act of making the false statement must be against the law.

Intention (Mens Rea) – This is a crucial element, meaning the person must have knowingly made a false statement. The mere inclusion of erroneous figures or mistakes, even serious ones, without the requisite intent to mislead, does not constitute perjury.

In South Africa, the crime of making a false statement under oath or affirmation is primarily governed by the Justices of the Peace and Commissioners of Oaths Act (JPCO)¹ and the Criminal Procedure Act (CPA).²

Justices of the Peace and Commissioners of Oaths Act:

Section 9 of the JPCO is central. It stipulates that any person who, in an affidavit, affirmation or solemn or attested declaration made before a competent person, has made a false statement knowing it to be false, shall be guilty of an offence and liable upon conviction to the penalties prescribed by law for the offence of perjury. This highlights that the crucial aspect of culpability for this specific offence is the knowledge of falsity.

Criminal Procedure Act:

This CPA sets out the procedural aspects of giving evidence and prosecuting offences.
Sections 162, 163, and 164 specify how witnesses are examined under oath, by affirmation, or through admonition to speak the truth. Notably, if a person who does not understand the nature of an oath is admonished to speak the truth and then wilfully and falsely states anything which, if sworn, would have amounted to perjury, they are deemed to have committed that offence.
The CPA extends criminal liability for false statements beyond oral testimony to include false statements made wilfully and falsely in certificates issued by state officials related to certain facts and in written statements admitted as evidence.
A significant provision for the prosecution of perjury is section 101, which states that a charge relating to false evidence need not allege, nor need it be established at the trial, that the false evidence or statement was material to any issue at the relevant proceedings or that it was to the prejudice of any person. This simplifies the prosecution’s burden by removing the need to prove materiality or specific prejudice.
Section 204 deals with witnesses giving incriminating evidence for the prosecution and provides for immunity from prosecution for the specified offence, but explicitly states that this immunity does not apply to a witness who is prosecuted for perjury arising from the evidence given. This underscores that perjury is treated as a separate and distinct offence.

The intent to deceive is paramount in proving perjury. Courts must consider the context of the words used to ascertain whether there was an intention to lie under oath. In Talacar Holdings (Pty) Ltd v City of Johannesburg,³ the applicant sought perjury charges against a deponent who stated under oath that a matter had been “settled”. However, the court found that the deponent did not commit perjury because the term “settled” was used in the specific context of a queried account, and the explanation for its use did not meet the requirement of the offence of perjury, which indicated an absence of the necessary intent to lie.

Similarly, in Rajah v S,⁴ the appeal court emphasised the crucial role of mens rea when it overturned a perjury conviction. The trial court had found the First Appellant guilty of perjury based on materially incorrect figures in an affidavit. However, the appeal court concluded that the First Appellant did not have the mens rea to misrepresent the allegations. It clarified that mere mistakes or negligence, even when resulting in erroneous figures, do not equate to the intentional falsity required for perjury.

In the end, perjury law stands as both guardian and guide to protect the integrity of our courts while acknowledging the very human capacity for error, confusion, and imperfect expression. For legal practitioners and witnesses alike, the message remains refreshingly clear: honesty truly is the best policy, but when mistakes happen, intent matters more than perfection.

Written by Theo Tembo