DOUBLE JEOPARDY

Ilene Barrie and Gerhard Cloete from Labour Logic wrote this article to describe and explain the

term ‘double jeopardy’ by means of a definition and the application thereof by referring to various

court cases.

‘Double jeopardy’ can be defined as follows: “Where employees have been acquitted at a

disciplinary enquiry, or the presiding officer has imposed a penalty / sanction less severe than

dismissal, they cannot generally be subjected to a second enquiry on the same offence. Nor may

the management ignore the decision of the chairman of a properly constituted disciplinary hearing

and substitute its own decision. A dismissal in such circumstances would invariably be unfair.”

(Cited from Dr J Grogan’s book Workplace Law, 6ed, Edition, Juta, 2001 on page 168 ff: s.v.).

There is an embedded principle in our legal system that no person may be punished twice for the

same offence. Endorsing that principle are other legal principles, namely:

<!--[if !supportLists]--> <!--[endif]-->Nemo debet bis vexari pro una et eadem causa, which

means nobody, may be harassed with the same offence / case twice.

<!--[if !supportLists]--> <!--[endif]-->Double jeopardy, which means that no person may face the

risk of standing trial and be found guilty on the same offence.

<!--[if !supportLists]--> <!--[endif]-->Autrefois convict, which means where a person has pleaded

guilty on a previous offence, may not be found guilty on the same offence.

<!--[if !supportLists]--> <!--[endif]-->Autrefois acquit (stood in jeopardy), which means where a

person has been found not guilty on the same offence, that that person may not be found guilty on

the original charge.

To explain the application of double jeopardy the writer will now refer to various court cases:

1. NUMSA obo Walsh and Delta Motor Corporation (PTY) Ltd.

The facts: The employee assaulted a fellow employee on the employer’s premises, and the victim

was so severely injured that he was unconscious. The employee and his supervisor (Mr. Hartnick)

had a counselling session after the assault incident and an agreement was reached on the

payment of the victim’s medical expenses and loss of earnings. The supervisor then requested that

the matter be closed since it had been dealt with.

The Industrial Relations Department, however, stated that it was imperative to institute disciplinary

proceedings, particularly since assault is a serious offence, which almost invariably resulted in

dismissal. Disciplinary proceedings were initiated and the employee was dismissed.

The ratio: The court held that it was well established that an employee should not be disciplined

twice for the same offence. So, for instance, in the matter of Botha v Gengold Ltd (1996) 4 BLLR

441 (IC) it was found that a second disciplinary enquiry on the same facts cannot be allowed, since

that would amount to double jeopardy. However, in this case the learned judge ruled that the

institution of disciplinary action in respect of the incident did not amount to double jeopardy, but to

compliance (for the first time) with the employer’s Disciplinary Code and Procedures, i.e. holding a

disciplinary enquiry. The present situation is really distinguishable from the Botha case supra, in

that in the latter case the employee had been subjected to two proper enquiries in respect of the

same offence, he received a final warning at the first enquiry, and was dismissed at the second

disciplinary enquiry. In the NUMSA case, the decision to dismiss the employee was upheld.

2. CNA (Head Office) and ECCAWUSA (1995) 4 ARB 6.2.1

The facts: Members of the union lodged a formal grievance in regard to a supervisor’s behavior.

The union was dissatisfied with the outcome of the grievance meeting, because the supervisor only

received a written warning. Subsequent arbitration proceedings, in regard to the same complaint,

were instituted against the supervisor. The aforesaid examination of the grievances on which the

complaints against the supervisor were based showed that only the last grievance lodged had any

relevance to conduct justifying disciplinary action against him.

The ratio: The arbitrator held that the grievance had been adjudicated on and he had already

received a written warning. It is a fundamental principle of justice that the individual should not be

put in double jeopardy, i.e. should not be punished twice for the same offence, even if a more

serious penalty had been justified, which in this case was not the situation.

3. Duiker Mining Ltd (Tavistock Colliery) v CCMA & others (2003) 12 LC 1.11.10

The facts: The employee was dismissed after being found guilty of assaulting a fellow employee.

During the employee’s employment, there was a grievance hearing held on 7 and 8 June 2000, and

the chairman of the grievance hearing indicated that there was no evidence to prompt a

disciplinary enquiry. However, despite the decision not to convene a disciplinary enquiry, the

employer decided to conduct a further investigation into this alleged assault, and a disciplinary

enquiry was recommended. This enquiry was held on 31 August 2000. The employee refused to

attend the hearing. The employee was then found guilty of assault in his absence and was

subsequently dismissed. On appeal, the employee alleged that he had been disciplined at an

enquiry that was held on 7 and 8 June 2000, respectively. The employee’s appeal was dismissed.

The matter was referred to arbitration.

The ratio at arbitration: The arbitrator ordered the employer to reinstate the employee

with retrospective compensation. The employer took this matter on review.

The ratio at Labour Court: The Court ruled that the employee may have been a victim of double

jeopardy if the hearings of 7 and 8 June 2000, respectively, were final and in the form of

disciplinary hearings. The Court concluded that the proceedings of 7 June 2000 were characterized

as a grievance hearing, and the one on 8 June 2000 as a disciplinary hearing. The dismissal was set

aside and the matter was remitted to the CCMA for further consideration by another commissioner.

4. Strydom and USKO Limited (1997) 1 CCMA 7.11.1

The facts: The applicant (employee) had 13 years of service with the respondent (employer) before he was

dismissed. He was charged with the theft of 30 spanners and 3 pairs of pliers. On 25 November 1996, he

received a final written warning valid for twelve months, as well as suspending certain rights to sign documents.

On 27 November 1996, the applicant received a letter dated 26 November 1996 from the respondent’s divisional

manager informing him that the sanction imposed on him was inappropriate and had to be reviewed. The

applicant and his representative were invited to attend a meeting on 28 November 1996. At the outset of the

meeting, the manager said that he had the right to review the findings of the disciplinary enquiry and to substitute

the penalty of dismissal. Later that day, he received a letter from the respondent confirming his dismissal. At the

arbitration hearing, the chairman of the hearing held on 28 November 1996 testified that he believed that certain

aggravating and mitigating factors were not properly considered or insufficient weight was attached to certain

aggravating factors. In the circumstances, he was duty-bound to review the findings of the enquiry.

The ratio: The Commissioner held that the chairman in his capacity as the respondent’s divisional

manager was not authorized to review the findings of the disciplinary enquiry and to set aside the

penalty imposed on the applicant. Accordingly, the decision to dismiss the applicant was ultra vires

(“beyond the scope of his powers”) of the disciplinary code.

In this regard, the commissioner referred to the case of Wemyss v Hopkins (1875) LR 10 QB 378 at

381, where Blackburn J stated “ … [t]he defense does not arise on a plea of autrefois convict, but

on the well-established rule at common law, that where a person has been convicted and punished

(my underlining) for an offence by a court of competent jurisdiction, transit in rem judicatem, that

is, the conviction shall be a bar to all other further proceedings for the same offence, and he shall

not be punished for the same offence, and he shall not be punished for the same matter; otherwise

there might be two different punishments for the same offence. This dictum is premised on the

maxim: “nemo debet bis puniri pro una delicto” meaning not liable to be punished more than once

for the same offence. With reference to the case of Laskin J in Kienapple v The Queen 44 DLR (3rd)

at 364-365 he commented that “… [a]lthough transit in rem judicatem, as used by Blackburn J in

Wemyss v Hopkins is more appropriate to plea of autrefois acquit or issue estoppel, it is clear that

he is concerned with a matter more akin to double jeopardy ….”

The disciplinary enquiry is a matter of procedural fairness and any further enquiry, under the

deception of a review on the same allegations or facts cannot be permitted since it exposes the

employee to double jeopardy. The commissioner concluded that it was unfair for the respondent to

subject the applicant to review proceedings in the form of a meeting of 28 November 1996 since

such a meeting was intended to review the findings of the enquiry and substitute the penalty of

dismissal. It was ultra vires the Disciplinary Code and Procedures and invalid; accordingly the

applicant’s dismissal was substantively and procedurally unfair.

5. Wium v Zondi & Others (2002) 11 LC 7.22.2

The facts: The employee was a convicted thief, having been accused and convicted of theft

relating to a sum of R300.00 in or about 1993. In January 1997, the employee applied to become a

deputy principal of the Meyerton Primary School. Nine months later, he applied for the position of

principal of the same school. It appears that on both occasions, the employee attached a

Curriculum Vitae in which he stated that he had no previous criminal convictions. One De Beer,

member of the School Governing Body (SGB), who apparently knew of the employee’s previous

conviction for theft, complained that the employee had failed to disclose his criminal conviction

status. A disciplinary enquiry was held; the presiding officer found the employee quilty and

recommended that the employee must be given a final written warning. This recommendation was

made to the employer, whose chief executive officer is the Superintendent-General (SG). The SG

rejected the sanction recommended and imposed a penalty of dismissal.

The ratio: The disciplinary hearing was not intended to impose any sanction, but was merely

intended to recommend a sanction. The Court then upheld that double jeopardy was not applicable

here.

6. SARHWU & Burrill, GM v Bop Air (Pty) Ltd (1993) 1 ICJ 1.1.199

The facts: The 2nd applicant (employee) was dismissed on 29 January 1993. The respondent

(employer) received a copy of the S43 application for reinstatement. On 9 March 1993, the

respondent sent a fax to the applicant informing him of his unconditional reinstatement. At the

same time, a notice of enquiry was issued. The applicant was informed that his suspension on full

pay, pending the outcome of the enquiry, was continued.

The ratio: The applicant’s counsel contended that the second applicant was exposed to double

jeopardy. The Court found no reasons why an employer cannot in good faith say to an employee ‘I

do not accept that you are right but will reinstate you and hold an enquiry because you say your

dismissal is unfair. ‘The respondent did reinstate the applicant, and it cannot be suggested that the

respondent was not bona fide. In so far as the argument of ‘double jeopardy’ goes, the court found

that the concept had no application in this case.

7. Pick a Pay and SA Iron and Steel Union (1994) 3(2) ARB 2.6.13

The facts: The employee was a manageress of the delicatessen department in the company

Witbank store. She employed a domestic servant, Dora, for casual work on Sundays. Dora fell

pregnant and it was agreed that Jane would stand in for Dora. There was an agreement between

Dora and Jane that Jane’s earnings during this three months’ period would be divided between the

two of them. At the end of the 3 months’ period, Jane received only R20,00. The matter was taken

up with the employee, who apparently immediately acknowledged that the position was irregular,

and inter alia, signed an acknowledgement of debt, in which she herself undertook to pay an

amount of R444,00 to Jane. The employee was charged for breaking company rules and

dishonesty. She was found guilty on the charge of breaking company rules, but found not guilty on

dishonesty. The chairman suspended the employee without pay for a period of one month. She

duly served the period of suspension. SACCAWU believed that the disciplinary sanction was too

lenient and threatened to take industrial action if the employee was to remain in the employers’

employ. The store manager then approached the employee with various options, and she received

a letter from the employer placing her on further full-pay suspension until further notice. This

matter was referred to arbitration.

The ratio: The arbitrator held that the present dispute must be resolved on the basis that the

employee has already been subjected to disciplinary proceedings, and that she had already served

the determined penalty. The employee was therefore entitled to resume her employment with the

employer without further disadvantages. It follows that the second and presently enduring period

of suspension must come to an end. The arbitrator held that double jeopardy constituted a

procedural fairness in this regard, and that industrial action should not be used to challenge the

outcome of bona fide proceedings.

8. MWU-Solidarity obo Erasmus and Bevcan (a division of Nampak Ltd (2001) 10

AMSSA 7.22.1.

The facts: In this case, the company issued a plant notice to all employees that if employees were

found guilty of removing company property from the premises, they would be summarily

dismissed. On 13 January 2001, Mr. Ben Erasmus, a 55-year-old production mechanic, was found,

in a random search of employees leaving the premises, in possession of one roll of toilet paper. He

pleaded guilty in a disciplinary hearing held on 30 January 2001 and was given a final written

warning. On 20 February 2001, the union, NUMSA, wrote to the company and demanded that Mr.

Erasmus be dismissed. The company responded that the official who had issued the final written

warning had been negligent in failing to apply the rule established by the plant notice, but stated

that it could unfortunately not change the sanction.

NUMSA then wrote to Nampak’s head office accusing the company of racism and demanding intervention. A

fresh hearing was accordingly held on 18 April 2001, and Mr. Erasmus was dismissed. Mr. Erasmus had 19

years of service with the company.

The ratio: The arbitrator ruled that a second enquiry might be held (i) if it is fair to do so (ii) in

exceptional circumstances (iii) if the disciplinary procedure and code does not prohibit it. In this

regard, the commissioner found the evidence rather plausible, because Mr. Erasmus suffered from

piles, and carried a roll with him at work, because it was soft paper that he used in the place of the

toilet paper supplied by the company. The commissioner also held that a second disciplinary

enquiry was not required, and that there were no exceptional circumstances present in this case,

and was therefore unnecessary to conduct a second hearing. The finding of the first disciplinary

hearing therefore stands. Mr. Erasmus was reinstated retrospectively.

9. GC Cooper v Kloof Mines (Pty) Limited (1995) 1 IJC 8.1.20

The facts: The respondent (employer) terminated the applicant’s (employee) employment initially

in mid-July 1990. The applicant appealed and his appeal was successful. He was reinstated but a

further disciplinary enquiry was instituted and he was again dismissed. He alleged that he was

subject to double jeopardy. The applicant was dismissed for poor performance and he was

moonlighting as well.

The ratio: The industrial court disagreed that the applicant was exposed to double jeopardy, and

held that it would not be fair of an employer to hold a second enquiry where as a result of the first

enquiry the employee was found not guilty because then the employer would in effect be

appealing against his own decision. The employer acts fairly, however, if he comes to the

conclusion that the initial disciplinary enquiry was not properly conducted and gives the employee

concerned, who has been found guilty and dismissed, a second bite at the cherry.

10. Edworks Ltd and SACCAWU (1191) 1 Arb 6.5.1

The facts: The company held a disciplinary enquiry for two of its employees. During the first

enquiry the company’s representative also testified as a witness. The union official objected to this

and the company abandoned this enquiry and reconvened a second enquiry on the same charges.

The union alleged that this constituted double jeopardy because the employees were already

subjected to cross-examination and the leading of evidence against them, and as they had not

been found guilty at the first enquiry, they should not be obliged to stand accused in a second

enquiry.

The ratio: The arbitrator held that he did not support the contention of the union that the

employees may rightfully refuse to appear in a second hearing, because the chairman did not

come to a finding at the first hearing. It is therefore not for the union to raise the objection of

double jeopardy, in fact it was the union’s own objection which brought the first hearing to an end

before a finding could be made. The chairman may, at a subsequent hearing, legitimately hear the

allegations against the employees.

11. Sasol Coal & MWU obo Beukes (2001) 10 AMSSA 1.1.2

The facts: Mr. Beukes was found guilty and dismissed for assault or attempted assault at a

disciplinary hearing. He appealed and the chairman of the appeal ruled in Mr. Beukes’ favour. The

company was rather surprised by this finding and decided to have this finding reviewed by an

external arbitrator.

The ratio: The union objected to this decision because they believed that the company had

contravened the recognition agreement and it was not within the spirit of the Disciplinary Code and

Procedure in that no provision was made for external reviews. The arbitrator awarded in favour of

the union and held that the company did not act properly in referring the matter for review to an

external arbitrator. If an incorrect finding, according to the company was made at the appeal

hearing, then the company will have to live with that mistake. The principle is that the company

may not change the decision of its own enquiry.

12. Telkom SA v CCMA 7 Others

The facts: The second respondent was an employee of the employer at the Lenasia yard. He was

also a senior shop steward with over 20 years of service. Following a lock-out, the applicant

initiated a disciplinary enquiry against the employee. The applicant alleged that the employee had

intimidated and threatened certain persons during the lock-out. Four accounts of intimidation were

brought. At the end of the disciplinary enquiry, the chairperson found that the employee was guilty

on two of the four accounts. The chairman of the disciplinary enquiry then imposed a sanction of

“dismissal or ten days’ suspension” as an alternative. If the employee did not accept the

suspension as an alternative, the dismissal would come into effect from 29 November 1999. The

employee elected for ten days’ suspension, and he returned to work on 13 December 1999 at a

different premise of the employer. On 13 January 2000, an ‘in-house conciliation’ was held and the

chairman of the disciplinary enquiry dismissed the employee on the basis that by challenging the

finding of guilt, the employee had changed his mind about the acceptance of the alternative

sanction of ten days’ suspension and, as a result, the dismissal became operative automatically as

at 29 November 1999.

The ratio: The Court held that once the chairman of a disciplinary enquiry had, on 29 November

1999, given his award and had given the employee an alternative to dismissal, then the hearing

was finalised and the chairman was functus officio (no longer in office), and it was therefore not

competent for the employer at the so-called ‘in-house conciliation’ on 13 January 2000 to change

the lesser sanction to one of dismissal. This was especially so as the employee had clearly elected

the lesser sanction and had served a suspension period, and it had never been clearly explained to

the employee that the ‘in-house conciliation’ procedure would result in his dismissal. The

employee’s dismissal was procedurally and substantively unfair.

COMMENTARY

Double jeopardy, as per the definition, is usually applicable where a sanction has already been

imposed or where a further disciplinary hearing has been reconvened on the same charge/s after a

finding has been made. In this regard, the decision in the Edworks case supra should act as a

guideline, that where a union objected to the procedural unfairness of an enquiry and a fresh

enquiry is then being convened, that the chairman may proceed with such an enquiry because a

finding has not been made, on the proviso that the employee will not be prejudiced in his/her

preparation for the case. Likewise, if the chairman continues to sanction the employee after a

finding of not guilty has been made, or the charges have been withdrawn, i.e. to place the

employee on suspension even after the charge against the employee has been withdrawn, then

this will constitute an unfair labour practice, that is an unfair suspension in terms of section 187(2)

of the Labour Relations Act, 66 of 1995.

The guidelines as per the Erasmus case supra, in respect of calling for a second hearing after a

finding has been made, should be complied with. For ease of reference these guidelines include

whether it is fair to call for a second hearing, whether there are exceptional circumstances that

would justify a second hearing, and if the Disciplinary Code and Procedure does not prohibit the

convening of the second hearing. In all circumstances, the main issue is that double jeopardy

should not prejudice the employee.

If you need any further advice or assistance on labour issues, you may contact Labour.co.za’s Legal Department in Pretoria