Mahlakoane v South African Revenue Service (JA118/13) [2018] ZALAC 1 (25 January 2018)

Principle:

  1. The principle of 'double jeopardy' has, as its heart, fairness and means that an employee cannot, generally, be charged again with the same misconduct either found guilty or not guilty of. However, there are instances where breaches of this rule or principle can be condoned - the paramount consideration is fairness to both sides.

  2. When it is apparent that the charges of misconduct in the first disciplinary hearing and those in the second hearing are not the same, the double jeopardy principle does not arise for consideration.

Facts:

In 2000 the employee was unemployed, living with her husband and two minor children. She applied for and was granted a child support grant for the two children in terms of the Social Assistance Act, which was repealed and replaced with a new Act (the SAS Acts). When she was employed by SARS in 2006 as a revenue administrator, her entitlement to the support grants ceased in terms of the SAS Acts. Notwithstanding this, she continued to draw the grants in breach of the Act. SARS became aware of this in 2008 and charged her with fraud, alternatively with breaching SARS' disciplinary code.

At her disciplinary hearing in 2008, (the first disciplinary hearing) her defence was that she had informed the South African Social Security Agency (SASSA), which is responsible for distributing the grants, that she no longer qualified for the grants, but they continued to do so. In her defence, she produced two letters purporting to be from SASSA dated 2 October 2006 (one in respect of each child), in terms of which SASSA confirmed that she was no longer entitled to the grants in terms of the social assistance legislation. She said these were in response to her having informed them of her changed employment status. As a result, the Chairperson of the hearing did not find her guilty of fraud, but only of continuing to receive the grants despite not qualifying therefor, which constituted an offence in terms of SARS' disciplinary code. She was given a final warning for this offence.

In 2010 her husband (they had separated by that time) informed SARS that the two SASSA letters she had relied upon in the first disciplinary hearing were forged, in that he and his wife had altered the date they were allegedly sent from October 2007 (the time when SASSA eventually stopped paying the grants) to October 2006. SARS then charged her with misconduct involving fraud, forgery and uttering, alleging essentially that she had forged the dates on the SASSA letters and had presented them as having emanated from SASSA in 2006, well-knowing that was not the case. She was dismissed after the second disciplinary hearing.

The employee lodged a dispute and referred it to arbitration at the CCMA. The CCMA commissioner found that it was unfair for SARS to have subjected the employee to a second disciplinary hearing, as this constituted double jeopardy for reasons including the following:

  • the allegations in the second hearing were the same as those in the first hearing;
  • SARS' disciplinary code made no provision for a second hearing;
  • the first hearing gave the parties the opportunity to lead evidence about the authenticity of the two contested letters;
  • the chairperson of the first hearing came to a "definitive decision that the two contested letters were genuine".

The commissioner found that the employee had been unfairly dismissed and ordered her reinstatement with R84 600 backpay. Aggrieved, SARS took the award on review, and the Labour Court reached a very different conclusion on the double jeopardy argument. The LC found that the charges in the two hearings were distinguishable from each other, even though there were some common facts, and that the commissioner had "conflated the two acts of misconduct into one." The LC also found that there was sufficient evidence in the second hearing to find the employee guilty of the offences alleged.

For these reasons, the LC found that the commissioner had failed to apply his mind appropriately to the proven facts, and that this amounted to a gross irregularity. The LC set aside the arbitrator's award and found that the dismissal was substantively fair. The employee then appealed the judgment to the LAC.

The LAC confirmed the principle that whilst an employee cannot generally be charged again for the same misconduct, there are instances where breaches of this rule can be condoned: the paramount consideration as determined by BMW (SA) (Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC) and Branford Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC) is one of fairness to both sides.

Notwithstanding the above, the LAC concluded that the double jeopardy did not apply in this instance, given that the charges of misconduct in the two enquiries were not the same. In the first, the employee was charged with fraud in relation to continuing to receive child support grants when she did not qualify for them. In the second, she was charged with fraud in relation to altering the dates on the SASSA letters. The LAC further agreed there was sufficient evidence to find the employee guilty of the charges at the second hearing, and that the dismissal was fair. The employee's appeal was dismissed with costs.

While the LAC distinguished between the misconduct that was dealt with at the two hearings, and on that basis concluded that the double jeopardy principle was not applicable, we suggest it would in any event not have been applicable even if the charges dealt with at the two hearings were the same. New evidence had come to light that the employer could not reasonably have been aware of at the time of the first hearing, that had a direct bearing on the trust relationship between the employer and the employee. On that basis, we suggest it would be fair to submit that new evidence to a further hearing.

Extract from the judgment:

(Coppin,JA)

'Double jeopardy'

[27]   The principle of "double jeopardy" has, as its heart, fairness and this rule or principle simply entails that an employee cannot, generally, be charged again with the same misconduct that he or she was either found guilty or not guilty of. However, there are instances where breaches of this rule or principle can be condoned. The paramount consideration, however, is fairness to both sides.

[28]   It is apparent that the charges of misconduct in the first disciplinary hearing in 2008 and those in the second hearing are not the same, so the double jeopardy principle does not arise for consideration. In the first disciplinary hearing, the appellant was charged with fraud, alternatively with a contravention of section 12(2) read with section 17 of the SAS Act, alternatively, with contravening clause 6.1 of the respondent's Codes of Conduct. The main allegations in that disciplinary hearing being that the appellant, well-knowing that she did not qualify for the child support grants in respect of her two children and in terms of the SAS Acts continued to take those grants. In the alternative, it was alleged that she received the grants knowing that she was not entitled to do so. It was also alleged that she failed to inform SASSA of her changed financial circumstances after she became employed by the respondent and as she was required to do by law.

[29]   The record of that inquiry shows that the appellant pleaded guilty to the main charge of fraud, but was ultimately found not guilty of that charge on the basis that the evidence did not support that charge. According to the Chairperson in that inquiry, on the evidence "Ms Mahlakoane made no representation causing a loss or a potential loss to the Department of Social Development". The appellant was however found guilty of the first alternative charge as she continued to receive the grants well-knowing that she was not entitled to them and because this constituted an offence, and accordingly, a contravention of the respondent's Disciplinary Code. The appellant was given a final written warning valid for one year on 5 September 2008.

[30]   Those charges did not relate at all to the authenticity of the letters or the genuineness on the dates of those letters. Those issues were not part of the charges in the first inquiry and the letters were merely submitted by the appellant in that inquiry in substantiation of her defence that she had reported her changed financial circumstances to SASSA in 2006, but they nevertheless continued to pay the grants despite such notification.

[31]   The charges in the second disciplinary hearing emanate from information supplied to the respondent by Mr Setshedi, her estranged husband, that the dates on the letters which the appellant had relied on, had been altered with his assistance. According to him, the date on the original letters from SASSA was 2 October 2007, but they had altered the year to 2006. Part of their modus operandi to make the date of 2006 appear authentic, was to rely on copies of the altered original letters and to have those copies certified as true copies of the original letters. The true original letters were discarded, and the appellant produced copies of the falsified letters at the first hearing. According to Mr Setshedi, even the certificates proclaiming the authenticity of those altered copies was also false. They purported to be certifications by a police officer, but the name of the police officer appearing on those certificates was made-up; such a police officer does not exist and the police have never seen the copies. According to Mr Setshedi, he obtained and applied the SAPS stamp himself. He also completed those portions requiring completion himself and had signed as if they had been signed by a member of the police services.

[32]   The charges in the second disciplinary hearing, therefore, centred on the falsification of the dates on the letters....................................

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[35]   The Commissioner's conclusion, in effect, that the charges of misconduct in the first and second disciplinary hearings were the same, and that the principle of double jeopardy found application, are material misdirections. The appellant was not charged in the first disciplinary hearing with falsifying letters, or with making false representations to the respondent, or to Mr Hiemstra. The misconduct charged in the first and second disciplinary hearings are apparently distinctly different. A reasonable commissioner would have appreciated the material differences in the two sets of charges and would not have reached the same conclusion as the Commissioner.