In the first judgement of 2024 the LAC had to determine amongst other issues whether a confession made by an Employee was admissible as evidence at both the hearing and the Arbitration.

The case of BRAUNS AND OTHERS V WILKES N.O AND OTHERS (JA47/22) [2024] ZALAC 1 (18 JANUARY 2024), will be referred to. There were three Employees who worked at the SAPS Brakpan station. These three Employees were related to each other. The Employees in question were one Quinton Brauns (Quinton), his wife Vannessa, and Quinton’s sister-in-law Yolanda Schoeman (Yolanda). It was alleged the three Employees had intentionally and willfully defrauded and prejudiced SAPS by manipulating a SAPS system that Quinton could access to pay himself, Vannessa and Yolanda monies for overtime worked when it was evident neither of the three had in fact worked any overtime on the dates in question. 

Vannessa received R202 418.02 because Quinton said he could not put the “stolen” monies into his own account, so he used Vannessa’s account. Yolanda received R8 984.52. All three of them knew the money was not due to them and knew it was unlawful to retain these payments.

On the 12th of April 2016 Quinton was confronted with the evidence. He became extremely emotional and was crying, he apologised for disappointing his family and SAPS management. Quinton then requested to meet with the station Commander Brigadier Manyatela. On the 15th of April 2016, Quinton, whilst at a SAPS parade stood up and apologised to management in the presence of “everybody” for his misconduct and he acknowledged what he had done was wrong. 

Arrangements were then made for Quinton to confess to a Magistrate. The Magistrate reduced Quinton’s statement to writing. She explained the procedure she followed whilst taking down his statement. She wrote his statement as he told it to her to which she then read it back to Quinton. The Magistrate made Quinton aware that his confession was being given freely and voluntarily without coercion or undue force. During the process Quinton said he knew the monies were not his and he said he would pay all the money back.

Thereafter, SAPS charged all three Employees with dishonesty, fraud, and conspiring with each other to commit a crime. After an enquiry the three were dismissed.

The three Employees referred an unfair dismissal dispute to the Safety and Security Sectoral Bargaining Council.

At the Arbitration the three of them, Quinton, Vannessa, and Yolanda had wild versions. It is not surprising that Quinton completely changed his statements. Quinton said he could never have captured the overtime during the period in question as at the time he was on fifteen days leave. Then Quinton said that he was told by one of the management team what to say to the Magistrate during his confession. He said he was also told to say he would pay the money back, essentially being unduly influenced and coerced by a senior manager. During cross-examination though it was put to Quinton why did he not inform the Magistrate that he was being influenced what to say, to which he replied that he thought his senior manager was helping him to ensure that criminal charges would not be proffered against him. However, when asked by the Magistrate during the confession whether the money was due to him, he said, “ek het geweet die geld was nie verskuldig aan my nie”.

During the Arbitration the Commissioner made the following findings:

(i) Quinton had the opportunity and the motive to capture and approve payments for overtime not worked by the three.

(ii) Quinton was usually at work about half an hour earlier than the other finance department Employees. Further, on one Sunday morning when the transactions were captured, there was documentary proof that Quinton was the only one on duty.

(iii) Quinton deliberately and without justification caused overtime payments to be made when none were due.

(iv) It was not disputed by the Applicants (Quinton, Vannessa, and Yolanda) that there was a clear rule prohibiting their conduct. This rule was valid and reasonable and the three were aware that consistency had been applied.

(v) The dismissal was substantively fair because the conduct involved gross dishonesty and therefore the trust relationship had been destroyed between the parties.

(vi) The Commissioner took into account a confession had been made by Quinton and such was done freely and voluntarily, in addition, the evidence of Quinton standing up at the SAPS parade and admitting guilt was considered.

However, upon review to the Labour Court the Applicants challenged the Commissioners finding by saying the Commissioner had misdirected himself and had arrived at a finding that no reasonable decision-maker would have made.

It was stated by the Applicants that the Commissioner failed to appreciate that Vannessa and Yolanda had offered to pay the money back in terms of SAPS policy. (However, the SAPS policy for the repayment of monies only applies in circumstances where the payment was erroneously made and not where there was theft or fraud). It was further asserted by all three of the Applicants that they had clean disciplinary records and therefore the sanction of dismissal was unduly harsh.

Now turning to the admissibility of the confession, there is no dispute that the statement made by Quinton to the Magistrate was a confession. Quinton was asked if he was making the statement freely and voluntarily without undue influence or coercion. A confession may be defined as “the act of admitting that you have done something wrong or illegal”, it is “an unequivocal acknowledgement of guilt”.

It may appear then that a confession is all an Employer needs to find an Employee guilty and dismiss, but this is not the case there is still a burden on the Employer. The Employer must show the confession is admissible because it was given freely and voluntarily, and that the Employee making the confession was made aware s/he needed to state s/he was not being unduly influenced or coerced in making his confession. The Employee should have full and sober senses. The Employer must show that the confession was clear and unambiguous, and that the Employee understood the consequences of making the confession.

So, the lesson to be learned is that an Employer must satisfy the requirements mentioned above to ensure a confession will be admissible at a hearing or at Arbitration.

Written by Tessa Kassel at General, Domestic and Professional Employer’s Organisation.