In the year 2000 Mrs. Mahlakoane was unemployed. She was granted a child support grant in respect of her two minor children, in terms of the now repealed Social Assistance Act, 59 of 1992 (“SAA”). On 1 February 2006 the South African Revenue Services (the applicant) employed Mrs. Mahlakoane and accordingly her entitlement to child support grants lapsed. She nevertheless continued to receive the grants in breach of the SAA.

When this came to light, the applicant brought Mrs. Mahlakoane before a disciplinary hearing during 2008 on the charge of fraud alternatively breaching the applicant’s disciplinary code in receiving child support grants in contravention of the SAA. Mrs. Mahlakoane contended that she had informed the agency responsible for distributing SAA grants, the South African Social Security Agency (“SASSA”), that she no longer qualified for the grants. She tendered two letters from SASSA that on face value confirmed that she no longer qualified for the grants.

Mrs. Mahlakoane was found not guilty of fraud, since she did not make any misrepresentation. She was however found guilty of receiving SAA grants, which constituted an offence in terms of SARS’s disciplinary code. The imposition of a final written warning was accepted by Mahlakoane.

During 2010, Mr Setshedi who was then the ex-husband of Mrs. Mahlakoane informed SARS that he had assisted his ex-wife to forge the SASSA letters. Mrs. Mahlakoane was charged with five acts of misconduct relating, inter alia, to fraud and forgery in that she had forged the SASSA letters and presented them into evidence at the 2008 disciplinary hearing.

The employee was dismissed and she referred an unfair dismissal dispute to the CCMA. Commissioner Pienaar found the dismissal to have been substantively unfair and ordered the SARS to re-instate Mahlakoane. Commissioner Pienaar reasoned that the chairperson of the first disciplinary hearing made a “pertinent finding” that the SASSA letters were genuine and that they had not been fraudulently obtained.  Pienaar believed that the charges in both disciplinary enquiries related to the same offence and that this constituted double jeopardy and as such not permissible. In addition to the aforementioned Pienaar also believed that Mr Setshedi, who provided SARS with the information that resulted in the second disciplinary hearing, was not reliable since he had animosity toward his ex-wife.

Judge Cele ruled that the commissioner erred insofar as he held that the charges that formed the subject to the first hearing were the same as in respect of the second hearing. The double jeopardy rule only comes into consideration in instances where an employee is recharged for the same conduct or offence that formed the subject of a previous hearing; not in instances such as the present where the second hearing concerns different conduct. There was no indication on the record, in particular on the basis of the transcription or the outcome of the first (2008) disciplinary hearing, that the authenticity of the SASSA letters was in dispute at the first disciplinary hearing.

The commissioner’s oblique finding that the information given to SARS by Mr Setshedi may not have been reliable was a further factor that he took into account in concluding that the second hearing constituted double jeopardy. In this instance the commissioner seemed to have suggested that a second enquiry would only be competent in instances where an employer is satisfied on a balance of probabilities, in advance of the second hearing, of the veracity of the allegations / information that form the basis of the charges. There is no legal basis in support of such conclusion.

The arbitration award was reviewed and set aside. The dismissal of Mrs. Mahlakoane was substantively fair.

Written by Jan du Toit 

First published on SA Labour Guide