Perjury, simply put, is the misrepresentation of facts whilst under oath. The consequence of perjury in South Africa is a fine, imprisonment of up to 10 years or both. The presence of the following elements determines the test for perjury in South African common law:
I. “[a] false statement;
II. in an affidavit, affirmation or attested declaration;
III. made before a competent person;
IV. (iv) mens rea” (intention to commit wrongdoing).
Perjured testimony in arbitration awards
The recent case of Rand Refinery (Pty) Ltd v Sehunane N.O. and Others (CCT 204/22) [2023] ZACC 28 (21 August 2023) dealt with a situation where a witness to disciplinary proceedings claimed in subsequent litigation that he had been forced to give false evidence against an employee.
Essentially, an arbitration award rendered as a consequence of false evidence given in arbitration proceedings would be tainted by perjured evidence. However, a court with competent jurisdiction would not be in a position to simply set aside a ‘tainted arbitration award’ on the sole basis of a witness having perjured himself/herself.
Legal integrity at stake
Giving false evidence in civil proceedings, such as during an arbitration, can have a material impact on the outcome of that dispute, hence the severe consequences associated with such conduct. An employer cannot force an employee to perjure him/herself to obtain a more favourable outcome in litigation, as this would directly contradict Section 23(1) of the Constitution of the Republic of South Africa, 1996.
When an employee alleges that an employer forced them to perjure themselves, the well-known concept of ‘he who alleges must prove’ becomes applicable in that such a severe allegation would have to be determined to be true. When a person, and in this scenario, an employee, is bound to prove the existence of any fact, it is said the burden of proof lies on that person to prove the existence of said fact on a balance of probabilities.
If the existence of forced perjury is adequately proven, an employer may very well face the harshness of the law; however, if an employee is not able to prove the existence of forced perjury, the result could be a host of legal recourses, including, but not limited to, being sued for defamation.
Safeguarding trust and credibility in arbitration
In conclusion, it is unequivocally detrimental for any company to endorse or encourage witnesses to lie during arbitrations. Such actions not only undermine the integrity of the arbitration process but also erode the trust and credibility upon which business relationships and legal proceedings rely. The ramifications of such behaviour can be severe, potentially resulting in legal penalties, reputational damage, and lasting repercussions on the company’s standing in the business community.
Therefore, it is imperative for companies to uphold honesty and integrity in all aspects of their dealings, recognizing that the pursuit of short-term gains through dishonest means can lead to long-term consequences that far outweigh any perceived benefits. Ultimately, fostering a culture of transparency and accountability not only serves the interests of justice but also safeguards the long-term success and sustainability of the company.
Looking for expert guidance and assistance in navigating the arbitration process? Our experienced team is dedicated to providing comprehensive support to individuals and companies alike, ensuring that your interests are protected and advocated for every step of the way.
Contact our offices today at 0861 737 263 or email us at info@invictusgroup.co.za to learn more about how we can assist you in achieving a fair and favourable outcome in arbitration processes.
