Ramthlakgwe v Modimolle-Mookgopong Local Municipality and Another (JS562/23) [2023] ZALCJHB 190; (2023) 44 ILJ 2297 (LC) (15 June 2023)

FLYNOTES: LABOUR – Disciplinary hearing – Criminal charges – Misconduct – Alleges laying of criminal charges compromised employee’s constitutional right to a fair trial – Avers evidence potentially given at disciplinary hearing could be self-incriminatory evidence in criminal proceedings – Whether an employer may be interdicted from starting or proceeding with disciplinary hearing where criminal charges have been laid – Criminal complaint or charge does not affect employer's ability to subject employee to disciplinary process – Action is tantamount to an abuse of court process – Application dismissed – Constitution, s 35.

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

CASE NO: JS562/23

In the matter between:

SALTHIEL KHOMOTSO RAMTHLAKGWE

Applicant

And

MODIMOLLE-MOOKGOPONG

LOCAL MUNICIPALITY

First Respondent

TSHEPO MONTANI N.O.

Second Respondent

Heard: 18 April 2023

Delivered: This judgment was handed down electronically by circulation to the Applicant’s and the Respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 10h00 on 15 June 2023.

JUDGMENT

JOLWANA AJ

Introduction

[1] This matter started its life as an extremely urgent application, being instituted a few days before the date of the hearing. In essence, the applicant sought an urgent interdict restraining the leading, presentation or solicitation of any evidence against him whatsoever, in furtherance of the prosecution of certain charges of misconduct at a disciplinary hearing which was set down to commence the day before the hearing of this application. It appears that the extreme urgency was precipitated by the sudden discovery by the applicant that criminal charges had been laid against him with the police in respect of the charges that were added through the amendment of the charge sheet. However, at the hearing of this application an order by consent was made postponing the disciplinary hearing sine die, pending the delivery of this judgment thus dissipating the urgency.

The parties

[2] The applicant is an employee of the first respondent wherein he holds the position of a Manager, Project Management Unit. He has been in the employ of the first respondent for some time since 2008, presumably holding various positions up to the current position as the head of the Project Management Unit of the first respondent.

[3] The first respondent is Modimolle-Mookgopong Local Municipality (the municipality), a category B municipality in the Waterberg District in the Province of Limpopo. It was formed consequent upon the amalgamation of the erstwhile Modimolle and Mookgopong Local Municipalities in August 2016.

[4] The second respondent is cited in these proceedings in his official capacity as the chairperson of the applicant’s disciplinary hearing. The second respondent did not participate in these proceedings in any way whatsoever. Therefore no further reference shall be made to him hereunder as no substantive relief is sought against him.

The facts

[5] The facts giving rise to this application are largely common cause. They are more or less the following. Towards the end of January 2023 the applicant was charged with misconduct in connection with 19 payments made to certain service providers on 29 April 2022. The essence of that charge was that he failed to follow the internal control procedures of the municipality. He was alleged to have done this by failing to ensure that all supporting documents were in the “payment packs”. He had also failed to ensure that all signatories had signed the supporting documents, for the processing of those payments before making a recommendation that payments be made to those service providers. The disciplinary hearing in respect of the said charge was scheduled to commence on the 17 April 2023 and to proceed until the 19 April 2023. However, it was agreed between the parties that the disciplinary hearing would be held in abeyance until the 19 April 2023 consequent upon this application being set down for hearing on 18 April 2023.

[6] The applicant had no difficulties with the disciplinary hearing in respect of the misconduct charge referred to above proceeding as scheduled and was prepared to defend himself at the disciplinary hearing to ward off the said charge. However, on 31 March 2023 the municipality amended the charge sheet by adding two new additional charges. The applicant still had no difficulties with the charge sheet being amended by the addition of those charges. In fact, he, together with his legal representatives started making preparations for the disciplinary hearing in respect of all the charges including the exchange of correspondence with the prosecutor appointed by the municipality to present the charges. I pause now to reflect, verbatim, the two additional charges as they are central to the entire application.

[7] The first of the additional charge reads:

“Charge 2

The Employee is guilty of fraud in that on or about the 3 June 2022 the Employee deliberately misrepresented the facts by alleging that the invoice submitted by Seokgo Malesela Enterprise of the amount of R316 250.00 was approved, checked and verified by the Engineer. This the Employee did with full knowledge that his statements were false in that the Engineer was not aware of the invoice and as such did not check, verify and approve the said invoice. The illegal conduct of the Employee led to the municipality paying Seokgo Malesela Enterprise an amount of R316 250.00 for work not done or for work not verified by the Engineer and as a result the Employer suffered financial loss to the amount of R316 250.00.

ALTERNATIVELY:-

The Employee is guilty of committing an act of financial misconduct, in that on or about the 03rd of June 2022 the Employee deliberately and/or negligently signed a memorandum wherein, he stated amongst other things that invoice number 07 submitted by Seokgo Malesela Enterprise was verified by the Project Engineer, while being aware that the statements were false, because the Engineer did not check and verify the invoice and the Engineer was not even aware of the said invoice. The actions of the Employee let to the Employer paying Seokgo Malesela Enterprise an amount of R316 250.00 for work not done or/and for work not verified by the Engineer and as a result the Employer suffered financial loss to the amount of R316 250.00.”

[8] The third charge reads:

“Charge 3:-

The Employee is guilty of committing an act of fraud in that on or about 28th November 2021 he recommended that the invoice submitted by Seokgo Malesela Enterprise in the amount of R1 488 691.67 be paid. The Employee did this with the full knowledge that the work done and verified by the Engineer amounted to R338 391.67 and not R1 488 691.67. The employee’s misrepresentations led to the municipality paying Seokgo Malesela Enterprise an amount of R1 488 691.67 instead of the amount of R388 691. 67 which was legally due. As such, the Employer suffered financial loss in the amount of R1 150 000.00.

The Employee is guilty of committing an act of financial misconduct in that on or about the 28th November 2021 the employee deliberately and/or negligently failed to follow the internal control procedures by failing to ensure that all the required documents are duly signed by all the people who are supposed to sign them, before recommending that an amount of R1 488 691. 67 be paid to Seokgo Malesela Enterprise.”

[9] The above mentioned charges 2 and 3, which are the gravamen of this entire application shall henceforth be referred to as the additional charges. Charge 1 shall henceforth be referred to as the initial charge.

[10] During the exchange of correspondence between the prosecutor appointed by the municipality and the applicant’s legal representatives in preparation for the disciplinary hearing, it transpired that the municipality, had, through its municipal manager, laid criminal charges with the South African Police Services in respect of some of the charges that the applicant had to answer to at the disciplinary hearing. There was some disagreement between the parties about whether or not the said criminal charges related to the initial charge or the additional charges. However, that disagreement is immaterial to the determination of this application as, in my view, it takes the matter no further either way. I, however, deal with this matter on the basis that the criminal charges so laid were in connection with the additional charges as the applicant alleges.

[11] The applicant, through his attorneys of record and in a written correspondence, protested at this turn of events complaining that the laying of criminal charges against him in respect of some of the charges placed him in a quandary. He alleged that the laying of criminal charges against him compromised his constitutional right to a fair trial as provided for in section 35(3)(h) of the Constitution[1]. Furthermore, the laying of criminal charges against him in the midst of the disciplinary hearing could also compromise his right to remain silent in the event of an arrest or detention provided for in section 35(1)(a) of the Constitution[2].

[12] The applicant’s main concern is that he will not be able to answer fully or even at all to the additional charges at the disciplinary hearing without compromising his right not to give self-incriminatory evidence. As I understand it, his fear is that the evidence he might give at the disciplinary hearing could be used against him at the criminal trial in the event that he is criminally charged and prosecuted in respect of the additional charges.

[13] Furthermore, it would be difficult for him to testify freely at the disciplinary hearing on account of fearing giving self-incriminatory evidence which may infringe on his right to fair labour practices as provided for in section 23(1) of the Constitution[3]. This is because if he does not testify at the disciplinary hearing or make submissions thereat, the additional charges may be determined without him having given his side of the story and defended himself to avoid giving self-incriminatory evidence. He contends that in all of these circumstances, he stands to be severely prejudiced and that the said prejudice is clearly manifest.

[14] He, therefore, approached this Court on an urgent basis fearing that he will be severely prejudiced and could suffer irreparable harm if he is not given a reprieve. The reprieve he is seeking is the postponement of the disciplinary hearing, sine die, in respect of the additional charges pending the finalisation of any criminal proceedings that may be initiated against him consequent upon the laying of the criminal charges. Alternatively, he seeks an order for the withdrawal of the additional charges so that the disciplinary hearing would proceed and determine the initial charge only. It appears that the parties could not agree on either the postponement, sine die, of the additional charges or their complete withdrawal hence this urgent application.

The issues

[15] The main issue for determination is whether an employer may be interdicted from starting or from proceeding with a disciplinary hearing where criminal charges have been laid or are under investigation or are pending before court. In other words, the question is whether any of the subset of rights enshrined in section 35 of the Constitution where an employee could be facing criminal charges relating to his alleged conduct at the workplace for which he faces disciplinary charges would entitle that employee to protection by the courts from a disciplinary hearing that may be pending or proceeding against him or her.

Discussion

[16] En passant, the right of the police and indeed their duty to investigate crime[4] and that of the National Prosecuting Authority to prosecute any person[5] are not implicated in this application. The applicant is not seeking any immunity from being investigated by the police or from being prosecuted by the prosecuting authority or the stay of criminal proceedings. He is seeking to interdict his employer from instituting or proceeding with a disciplinary hearing against him in respect of the additional charges about which he contends, his employer has also laid criminal charges against him with the police. He is therefore prepared to be criminally charged and to be prosecuted, if necessary, by those public institutions. It seems to me that the factual matrix in this matter presents a tension between the right of employers to discipline their employees which may be pitted against the right of employees not to give self-incriminatory evidence. This would typically occur where criminal charges arise from the same factual circumstances as the misconduct complained of at the workplace. In that situation the fair labour practice would include the right of the employee to testify freely and present his defence to the disciplinary charges in a fair disciplinary hearing without the fear of giving self-incriminatory evidence.

[17] The tension I referred to earlier and how the courts deal with it, that may be manifest between civil proceedings such as a disciplinary hearing and criminal proceedings that an employee may face down the line and the difficult situation an employee may find himself faced with was explained thus by Nugent J in Equisec[6]:

“Where a person is accused of having committed an act which exposes him to both a civil remedy and a criminal prosecution, he may often find himself in a dilemma. While on the one hand he may prefer for the moment to say nothing at all about the matter so as not to compromise the conduct of his defence in the forthcoming prosecution, on the other hand, to do so may prevent him from fending off the more immediate civil remedy which is being sought against him. When he finds himself in that dilemma he might appeal to a court to resolve it for him, which is what has occurred in the case which is now before me.

…

The prejudice to which the first respondent is said to be exposed in the present case is not extraordinary. I think that on a fair reading of his affidavit it comes down to this:

the first respondent would prefer for the moment to say nothing at all about the matters which have given rise to his prosecution, which of course he is ordinarily entitled to do. If the sequestration proceedings are not stayed, however, he might be called upon to disclose information relating to those self-same matters and he wishes to avoid being placed in that position. There are two

circumstances in which the first respondent will face the prospect of disclosing information which may be relevant to whether he has committed the offence with which he is now charged. Firstly, he is called upon in these proceedings to answer the allegations made against him by the applicant in the founding affidavit if he is to avoid his estate being placed under a final liquidation order. There is, of course, no legal compulsion upon him to do so. Whether a court should intervene to relieve a person of the perhaps difficult choices he faces in that regard was considered by me in Davis v Tipp N.O and Others 1996 (1) SA 1152 (W), which was subsequently followed in Seapoint Computer Bureau (Pty) Ltd v Mcloughlin and De Wet NNO 1997 (2) SA 636 (W). I see no reason to depart from the conclusion which was reached in those cases. In my view, the choice which the first respondent may face between abandoning his defence to the civil proceedings or waiving his right to remain silent (cf Templeman LJ in Rank Film Distributors Ltd and Others v Video Information Centre and Others [1982] AC 381, especially at 423 D-G) does not constitute prejudice against which he should expect to be protected by a Court and I would not exercise my discretion in favour of the first respondent on those grounds alone”

[18] Our jurisprudence indicates that our courts have always been prepared to intervene in the interests of justice in medias res, where necessary. In the not so recent past, that legal position was confirmed in Zondi[7] in which the Labour Appeal Court stated that:

“It is clear from what I have set out above that the proceedings before the first respondent are far from being concluded. The application

for review has in other words been brought in medias res. There is no universal or absolute test governing the question when a court will interfere in uncompleted proceedings, but one thing is clear from the cases and that is that a court will only interfere in medias res in exceptional circumstances, or when there is very good reason to do so. In ordinary circumstances the time to take any proceedings on appeal or review is at the termination thereof. The reasons for this attitude are equally clear. To permit interference in unterminated proceedings delays the continuation and completion of such proceedings. If such termination were to be readily permitted the proceedings might be interrupted at various times, and to deal with reviews or appeals piecemeal is clearly not practicable. In any event, the irregularity, even if it is allowed to stand, will not necessarily affect the result which might otherwise have followed. The tribunal concerned might for example in any event come to a conclusion favourable to the party otherwise affected by the irregularity. Even if the irregularity does indeed lead to a conclusion adverse to the person affected thereby, the time to put it right, as I have already said, is at the termination of proceedings.”

[19] What is clear from the above is that an interference in medias res is and has always been permissible. The circumstances in which such interference may be necessary will always depend on the facts of each case and only where miscarriage of justice, grave injustice or prejudice might otherwise occur.[8] Generally the default position is to allow proceedings to continue uninterrupted until they are completed.

Does it matter when the employer lays criminal charges?

[20] At some point during her submissions, I understood counsel for the applicant to be submitting that the municipality shot itself in the foot, so to speak, in laying criminal charges with the police before the completion of the disciplinary hearing. This submission is mentioned if only to be rejected. It seeks to draw an artificial distinction where an employee has a dilemma in facing a disciplinary process at the workplace when the conduct alleged may also potentially lead to criminal prosecution. Whether it is before or after the completion of the disciplinary hearing, the potential for prejudice is not difficult to see. The court in Fourie[9] did express itself with regard to this situation and, in my view, settled the issue. I am in respectful agreement with the court in that matter. It said:

“In my view, there is no merit in the argument that it depends upon the stage at which the employer wishes to institute criminal proceedings whether the employer is entitled to go ahead with a disciplinary enquiry. In the present matter, as I have stated above, it would appear that the disciplinary enquiry will take place at a stage when criminal proceedings already have been instituted, although the proceedings are not yet pending. I see no difference, in principle, between this position and the position where criminal proceedings have not been instituted but are likely to be instituted or, on the other hand, where criminal proceedings are indeed pending. In all of these cases it is at least foreseeable, and more so in the last mentioned case, where it is highly probable, that the criminal proceedings will take place.

However, the employee concerned always has the choice whether to give evidence at the disciplinary enquiry, that is, whether he or she wishes to put up a defence. In other words, the employee has the choice whether to abandon his or her defence or, on the other hand, waive his or her right to remain silent. Clearly, there is some prejudice involved for such employee (who faces possible future criminal proceedings based upon the same alleged misconduct), but I would agree with the principles enunciated in the cases (quoted above) that it is not the type of prejudice against which the employee should expect to be protected by a court.”

[21] It seems to me that the protection that may be given to an employee who is faced with that kind of dilemma is not based on him being conflicted between enjoying and even exercising two or more of his constitutional rights that are in conflict with one another. His choice on which right he exercises and asserts and which one he is prepared to forego or compromise by giving precedence and prominence to the other is his and his alone. For instance, the constitutional right to remain silent in criminal proceedings may be pitted against his right to a fair labour practice in being able to put up a defence at a disciplinary enquiry. The section 35(3) constitutional rights are there to protect a person from being forced or compelled to assist in his own prosecution in a criminal case. He is given an opportunity during the criminal trial, not to have to prove his innocence but rather to say something that could exonerate him or show how weak or non-existent the evidence of the State against him is, if he so chooses. Where he gets convicted, it would not be because he said nothing, it would be because the State would have proved its case against him beyond reasonable doubt.

[22] There is another consideration which is more profound in an employee’s dilemma. It is that, first, during the disciplinary hearing, he does not have to be proved guilty beyond reasonable doubt but on probabilities. Second, any self-incriminatory evidence that he may give at the disciplinary hearing is not automatically admissible at the criminal trial. In fact he is entitled to object to the State at criminal proceedings attempting to cross-examine him on what he may have said in the context of a disciplinary enquiry. Even the possibility of him being cross-examined on that evidence at the ensuing criminal trial, would depend on him deciding not to exercise his right to remain silent. This is because he cannot be compelled or forced to testify during trial as he does not have to prove his innocence.

[23] There is another layer of protection available to the applicant at the criminal trial. It is trite that an accused person is entitled to be discharged in criminal proceedings “if at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty[10].”

[24] It is clear from what the Supreme Court of Appeal said in Lubaxa[11] that the State must, on its own and independently of an accused person, bring before court credible evidence on which he might be convicted. That evidence would exclude any evidence the accused person may have given in civil proceedings. This is even before

considerations of its admissibility come to the fore. It is clear that the State may not supplant evidence given by an accused person or given against him at a disciplinary hearing into a criminal trial. This means that all the constitutional rights provided for in section 35 of the Constitution remain intact and in fact are not compromised, nor can they be, by any evidence which may be given in civil proceedings such as a disciplinary enquiry. This means that the employee being found guilty or acquitted at a disciplinary hearing has no bearing on the State’s obligation to prove his guilt beyond reasonable doubt at a criminal trial, if he is subsequently charged.

[25] Still on the subject of a person faced with a dilemma brought about by civil proceedings and criminal proceedings being instituted simultaneously, or one after the other, Nugent J said in Davis[12]:

“Civil proceedings invariably create the potential for information damaging to the accused to be disclosed by the accused himself, not least so because it will often serve his interest in the civil proceedings to do so. The exposure of an accused person to those inevitable choices has never been considered in this country to conflict with his right to remain silent during the criminal proceedings. Where the Courts have intervened there has always been a further element, which has been the potential for State compulsion to divulge information. Even then the Courts have not generally suspended the civil proceedings but in appropriate cases have rather ordered that the element of compulsion should not be implemented.”

[26] In the context of, not only civil proceedings in general but more particularly, a disciplinary hearing in an employment situation, it has never been our law that the employer may be precluded from conducting a lawful and fair disciplinary enquiry to establish if one or more of its own employees has in fact conducted himself or herself contrary to an applicable code of conduct at the workplace. The employer has always had the right to maintain and enforce discipline at the workplace through a fair disciplinary process. This has never been seen to be in conflict with a situation in which the misconduct for which the employee is accused of at the workplace might also expose himself to criminal liability. The police, independently, have a duty to investigate criminal conduct regardless of who lays the criminal complaint. Even if the criminal complaint or charge is laid by an employer, that can never, in my view, stand in the way of that same employer subjecting the employee to a disciplinary process in the workplace.

[27] It seems to me that from the principles of our law which were, with respect, well-articulated in Davis that, what our courts would frown upon is the State in civil proceedings, using its machinery, forcing a person, to give information that could make him or her liable to criminal prosecution. This is what I understand our courts have meant by an element of State compulsion justifying a court’s intervention. Surely the State cannot and should not compel anyone to expose themselves to criminal liability and then prosecute that person using information that would have been given under a form of duress, which may at times be nuanced, the so called element of State compulsion. This is very different from an employee’s many constitutional rights clashing with one another sometimes and the employee finding himself or herself, in that sense, being squeezed between the proverbial rock and a hard place. If he or she chooses not to testify at a disciplinary enquiry for fear of self-incrimination, he exposes himself or herself, not by compulsion but by choice, to the possibility of not being able to protect his or her job. The hard choices he or she faces have nothing to do with the employer enforcing the code of conduct and discipline in the workplace which is, in any event, generally incorporated explicitly or by necessary implication, into the employment contract.

[28] The principles of our law relating to the exceptional situations in which our courts have deemed it fit to intervene and have done so were restated and confirmed not so long ago in Randell[13] in which the Supreme Court of Appeal said:

“In my view, the approach in Davis is sound and does no more than reiterate the approach of the previous decisions; namely that a stay will only be granted where there is an element of state compulsion impacting on the accused’s person’s right to silence. It is true that the judges in those cases do not specifically refer to compulsion but this is a matter of deduction made from the way the general principle is applied in matters which primarily involved sequestration proceedings. The development and formulation of the principle occurred in the context of sequestration proceedings. There is no authority to support the proposition that the principle is of application in ordinary civil proceedings not involving an element of compelled response on the part of the party who seeks a stay of civil

proceedings. Our courts have only granted a stay where there is an element of state compulsion….

I agree with the approach in Davis. I also think that to extend the Court’s, intervention to cases where an applicant for a stay of the civil proceedings has a “hard choice” to make, would bring the right to remain silent into disrepute. The ratio for the discretion being narrowly circumscribed is that a distinction must be maintained between the situation where an individual has the choice whether to testify (even though the alternatives over which he has a choice are equally unattractive) and where he is compelled to because a failure to do so attracts a penalty (at 1158H-J). According to the decision in Davis this is necessary to ensure that the “salutary principle”, enshrined in the right to silence is not to be extended beyond its true province and thereby risk falling into disrepute (at 1158 I-J).”

[29] The high water mark of the applicant’s case seems to be founded on a misguided and incoherent understanding of some of the principles of our law which have been referred to above. In his founding affidavit, the following paragraphs encapsulate quite succinctly the applicant’s understanding of the legal principles implicated in his set of circumstances. It is on the basis of that flawed understanding, as captured in the following paragraphs, that he seeks the protection of this Court from what appears to be the hard choices that he faces. He says in his founding affidavit:

“5.2.2 I have the right not to give any evidence incriminating myself in any criminal proceedings, regardless of the stage those proceedings have reached. Whilst I acknowledge that a disciplinary hearing is not a criminal court, it is a requirement that a proper record of proceedings be kept. Any evidence, submissions or statements I make at the disciplinary hearing in response to the additional charges will be a matter of record, and may therefore be used against me in any criminal investigation, which is ostensibly already pending, and in any criminal proceedings. The prejudice to me in this regard is manifest.

5.2.3 Furthermore, should I exercise my right against self incrimination and decline to answer thereto, give evidence in respect of or make any statements or submissions in respect of the Additional Charges at the disciplinary hearing, the Second Respondent, who is ceased(sic) with the matter will not be able to make a fair determination in respect of guilt on the Additional Charges, as he will only have the version of the First Respondent before him to base his findings upon. He will most likely find me guilty on the Additional Charges in the absence of any evidence from me.”

[30] These paragraphs reflect his misguidedness on how distinct the two processes are. If the disciplinary hearing proceeds and is concluded the evidence given thereat and the conclusions reached will be subject to a determination of the preponderance of probabilities. At the criminal trial, the assessment of the evidence is based on very different principles of our law. The test is not that of determining the preponderance of probabilities. It is based on the fact that, first, the accused person does not have to prove his innocence. The sole responsibility to establish the guilt of an accused person is that of the State and the State alone. Second, the State is obliged to prove the guilt of an accused person beyond reasonable doubt. This is a very different test which is a substantially very high standard of proof which is required. The evidence, submissions or statements made at a disciplinary hearing are not, without more, automatically admissible in a criminal trial that may ensue down the line. They cannot be superimposed on the criminal record at the criminal trial and be incorporated directly or indirectly in the criminal proceedings. Were that to be allowed, it seems to me, would be anathema to the very foundations of judicial independence and indeed also the very fundamental right of an accused person to be presumed innocent until proven otherwise.

Conclusion

[31] In all these circumstances, it follows that the applicant has not made out a case for the relief sought. He has not established any basis on which he deserves protection from the disciplinary hearing. It follows that his application must fail as being devoid of any merit.

Costs

[32] On the issue of costs, our law is very clear. It is that costs do not follow the result. Costs are determined according to the requirements of law and fairness[14]. I do think that the applicant must be ordered to pay costs. This is why. It is difficult to understand the rationale for the applicant to think that he should be immune from being subjected to a disciplinary process at his workplace. His reasoning for seeking to stop the disciplinary process in its tracks in a nutshell, denuded of all the high sounding and misapplied constitutional principles, is that criminal charges against him were laid. Therefore, as I understand this disjointed reasoning, for the duration of the criminal

investigation that may take years to complete and indeed for the duration of the criminal trial, that is, if it ever gets off the

ground, he should remain immune from disciplinary processes or be indemnified from being subjected to discipline at his workplace. This could literally be until he retires or finds another job elsewhere.

[33] In other words, the fact that his alleged misconduct may also amount to a very serious criminal offence must work to his advantage in that he should not be subjected to a disciplinary process. This kind of reasoning which is clearly self-serving, is so flawed, misguided and ill-conceived that it deserves special censure in the form of an appropriate order for costs. It boggles the mind that an employee holding the position of a manager, with the advice of attorneys and counsel, could see himself as being entitled not to be subjected to a disciplinary process at his workplace. This, only on the basis that the misconduct complained of happens to also expose him to criminal prosecution which makes it more serious than ordinary workplace misconduct. Therefore, his colleagues both senior and junior who may commit lesser forms of misconduct for which there is no criminal sanction must face a disciplinary process while he does not have to be called to answer for his alleged serious and possibly criminal conduct. This is shocking to say the least. It is tantamount to an abuse of court process by a person holding a managerial position using court processes to prevent his employer from subjecting him to a disciplinary process under the guise of protecting his constitutional rights.

[34] In the result the following order shall issue:-

Order:

1. The application is dismissed.

2. The applicant is ordered to pay costs of this application on a scale as between attorney and client.

M. JOLWANA

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Adv L. Steenkamp

Instructed by

BJF van Zyl Attorneys

For the First Respondent: Mr C. Malumbete of Malumbete and

Makhubela Attorneys

[1] Section 35(3)(h) of the Constitution of the Republic of South Africa, 1996 reads: Every accused person has a right to a fair

trial, which includes the right- … (h) to be presumed innocent, to remain silent, and not to testify during the proceedings.

[1] Section 35(3)(h) of the Constitution of the Republic of South Africa, 1996 reads: Every accused person has a right to a fair

trial, which includes the right-

(h) to be presumed innocent, to remain silent, and not to testify during the proceedings.

[2] Section 35(1)(a) reads: Everyone who is arrested for allegedly committing an offence has the right- (a) To remain silent.

[2] Section 35(1)(a) reads: Everyone who is arrested for allegedly committing an offence has the right-

(a) To remain silent.

[3] Section 23(1) of the Constitution provides that everyone has a right to fair labour practices.

[4] Section 205(3) of the Constitution provides: The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

[4] Section 205(3) of the Constitution provides:

The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

[5] Section 179(2) of the Constitution provides: The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary

functions incidental to instituting criminal proceedings.

[5] Section 179(2) of the Constitution provides:

The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary

functions incidental to instituting criminal proceedings.

[6] Equisec (Pty) Ltd v Rodriques and Another 1999 (3) SA 113 (W) at 115 A-B and I-J and 116 A-D.

[7] Zondi and Others v President, Industrial Court and Others (1991) 12 ILJ 1295 (LAC) at 1300.

[8] Note 8 supra at page 1302.

[9] Fourie v Amatola Water Board (2001) 22 ILJ 694 (LC) para 13-14.

[10] Section 174 of the Criminal Procedure Act 51 of 1977. In S v Lubaxa 2001 (2) SACR 703 (SCA) at paragraphs 18-19 section 174 was explained as follows: “I have no doubt that an accused person(whether or not he is represented) is entitled to be discharged at the close of the case

for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself. The failure to discharge an accused in those circumstances, if necessary mero motu, is in my view a breach of the rights that are guaranteed by the Constitution and will ordinarily vitiate a conviction based exclusively upon his self-incriminatory evidence. The right to be discharged at that stage of the trial does not necessarily arise, in my view, from considerations relating to the burden of proof (or its concomitant, the presumption of innocence) or the right of silence or right not to testify, but arguably from a consideration that is of more general application. Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law principle that there should be a reasonable and probables cause to believe that the accused is guilty of an offence before a prosecution is initiated (Beckenstrater v Rottcher and Theunissen 1995 (1) SA 129(A) at 135 C-E), and the constitutional protection afforded to dignity and personal freedom (s10 and s12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights protected by s10 and s12.”

[10] Section 174 of the Criminal Procedure Act 51 of 1977. In S v Lubaxa 2001 (2) SACR 703 (SCA) at paragraphs 18-19 section 174 was explained as follows:

“I have no doubt that an accused person(whether or not he is represented) is entitled to be discharged at the close of the case

for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself. The failure to discharge an accused in those circumstances, if necessary mero motu, is in my view a breach of the rights that are guaranteed by the Constitution and will ordinarily vitiate a conviction based exclusively upon his self-incriminatory evidence.

The right to be discharged at that stage of the trial does not necessarily arise, in my view, from considerations relating to the burden of proof (or its concomitant, the presumption of innocence) or the right of silence or right not to testify, but arguably from a consideration that is of more general application. Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law principle that there should be a reasonable and probables cause to believe that the accused is guilty of an offence before a prosecution is initiated (Beckenstrater v Rottcher and Theunissen 1995 (1) SA 129(A) at 135 C-E), and the constitutional protection afforded to dignity and personal freedom (s10 and s12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights protected by s10 and s12.”

[11]Note 10 supra.

[12] Davis V Tipp NO & Others 1996 (1) SA 1152 (W) at 1157 E-G.

[13] Law Society of the Cape of Good Hope v Randell 2013 (3) SA 437 (SCA) at paras 23 and 32.

[14] See section 162 of the LRA.