Is Forfeiture Of Patrimonial Benefits In Divorce Proceedings Still Relevant In Modern South Africa?

Is Forfeiture Of Patrimonial Benefits In Divorce Proceedings Still Relevant In Modern South Africa?

By Siphesihle Mayedwa, Cape Town intern

 

When a decree of divorce is granted on the grounds of irretrievable breakdown the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part. If the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that if the order for forfeiture is not made, one party will unduly benefit in relation to the other, then only will it consider granting such an order. In addition, the party claiming division, transfer or forfeiture of benefits should provide the grounds on which he or she makes the claim.

Where the courts grant an order for forfeiture of patrimonial benefits against a party, he or she forfeits not their share of the common property, but only the pecuniary benefit that they would otherwise have derived from the marriage. In addition to being an order for division, it is also an order stipulating that the party defending forfeiture is not to share in excess of what the party requesting forfeiture may have contributed over the contributions of the party defending same.

Previously, the power of the court to order forfeiture of benefits was based on the common law principle that no person ought to benefit financially from a marriage which he or she caused to fail. South African courts have since abandoned fault or conduct as the main reason for a forfeiture order. In terms of the Divorce Act, 70 of 1979 (the Act), the court has discretion, when granting a divorce on grounds of irretrievable breakdown, to order that the patrimonial benefits be forfeited by the party who is the cause of the breakdown, provided that such party will unduly benefit if forfeiture is not granted in favour of the other. As a result, many allege that forfeiture of patrimonial benefits as provided for in the Act seems to penalise those who are found to have committed substantial misconduct. It is therefore contended that it remains unrealistic to proceed from the view that the responsibility for the breakdown of the marriage lies only with one of the spouses while the other is completely innocent.

In the reported case MC v JC, after 26 years of marriage the husband obtained a partial forfeiture order based on his wife’s adultery which was deemed to be ‘substantial misconduct’. On appeal, the court made a comment in passing, holding that section 9(1) might infringe the right to equality because it placed the party who had committed substantial misconduct in an unfavourable position when it comes to the distribution of the patrimonial benefits of the marriage. As a result, the court pointed out that many may feel forced to remain in an unhappy marriage for fear of losing patrimonial benefits.

Moreover, in the event that the court is tasked with having to consider a prayer for forfeiture of patrimonial benefits it does not only take into account the substantial misconduct, but also further factors such as the duration of the marriage, the circumstances which gave rise to the breakdown and whether the other party would be unduly benefited, since all factors are equally important. In the reported case of JW v SW, the court held that substantial misconduct does not on its own justify an order for forfeiture.

The courts’ intention when granting an order for forfeiture is therefore to protect vulnerable parties in divorce proceedings rather than punishing the party against which the order is sought. In the reported case Tsebe v Tsebe, the court found that the defendant used the proceeds of his pension pay-out exclusively for his own benefit, to the detriment of the joint estate and the plaintiff in particular. It was further found that the defendant would under these circumstances be unduly benefitted if the order for forfeiture was not granted. As a result the defendant was ordered to forfeit his claim to 50% of the plaintiff’s pension interest held in the Post Office Retirement Fund. It is important to note that where there is a risk that one spouse in a marriage may endanger the other spouse’s interest in the joint estate pending the divorce, our law often seeks to protect such spouse against the deliberate or reckless conduct of the other during divorce proceedings.

It is however important to note that South African courts are reluctant to grant an order for forfeiture of patrimonial benefits due to its adverse effects and its interference with the applicable matrimonial property regimes governing the division of such estates. In light of the above, it is evident that forfeiture of patrimonial benefits is indeed relevant in modern South Africa to ensure that there is a level of protection in favour of vulnerable spouses, especially women.

 

  1. Divorce Act, 70 of 1979.
  2. Supreme Court Act, 59 of 1959, Uniform Rule 18, Magistrates’ Courts Act 32 of 1944, Rule 6.
  3. These include marriages in community of property and marriages out of community of property subject to the accrual system.
  4. 1937 WLD 126, at 127-8.
  5. Quansay ‘’The order of forfeiture of benefits in divorce proceedings in Botswana’’.
  6. MC v JC 2016 (2) SA 227 (GP).
  7. 1989 1 SA 597, 602-3.
  8. JW v SW 2011 (1) SA 545 (GNP).
  9. Tsebe v Tsebe [2016] ZAGPPHC 575 – Forfeiture of pension interest in a divorce matter.

 

Click here for our complete August 2019 Newsletter

A Single Marriage Statute?

By Sethabile Sithole, Durban intern

Our country is one that has people from diverse cultures and backgrounds. This is evident in the existence of legal pluralism that exists in our legal system. This is discernable in the judicial accommodation of non-state law when it comes to religious marriages. Though not recognised under South African law, the courts have extended a piecemeal recognition of religious marriages, although this recognition still casts a shadow of uncertainty on the parties to these marriages. For this reason parties have entered into both civil and religious marriages.

The South African Law Reform Commission (“the Commission”) seeks input on whether existing laws should be reshaped into a single marriage statute and, if so, how. There are currently three laws in which the three types of marriages recognised in South Africa are governed, viz., the Marriage Act of 1961, the Recognition of Customary Marriages Act of 1998 and the Civil Union Act of 2006.

One of the primary questions from the Commission is whether they should create a single statute that is all inclusive and has consequences applying to all types of marriages, or an omnibus statute which has different chapters regulating the different types of marriages. If the former is to be adopted, the question is what about the requirements which are unique and only exist in one type of marriage and not the other? Some examples would be the payment of a bride-price or the marriage being conducted by a marriage officer. In such cases, would we have to do away with such requirements or apply them across the board?

The Commission Issue Paper 35 on Single Marriage Statute is available on its website at www.justice.gov.za/salrc
and it is open for comments on any of the issues contained in the issue paper. For those who are interested in making comments, an extension has been given until 31 August 2019. Workshops will also be held in the various provinces in due course. In addition, a consolidated questionnaire will be available in all nine official languages. The commission is liaising with the Council for the Blind to have the questionnaire available in braille as well.

 

Click here for our complete August 2019 Newsletter

Amnesty International Youth Assembly

Amnesty International Youth Assembly

By Muchengeti Hwacha, Johannesburg intern.

On 2 August 2019 delegates from 150 countries descended on Johannesburg for Amnesty International’s (AI’s) Annual Global Assembly. This gathering constitutes the organisation’s highest decision making body and befitting the magnitude of the occasion, former Deputy Chief Justice Dikgang Moseneke gave the keynote address.

AI describes itself as a world embracing movement, working for the protection of human rights. The famed story of the Nobel Peace Prize winning organisation dates back to 1961, when British lawyer Peter Benenson wrote an article ‘The Forgotten Prisoners’ for the newspaper The Observer. The article was a call to action, an inspirational stance against the plight of prisoners of conscience.

AI invited ProBono.Org to take part in the YOUTH POWER ACTION! session. The youth gathering brought together young human rights activists to share stories of their past journey and ideas for future action. From reproductive rights activists in Latin America, to trauma counselling for Syrian refugees in Turkey, we heard testimonies that gave life to cursory coverage of the news media. We had moments of deep reflection, we had moments of youthful light-heartedness, but most importantly we had moments to connect and find allies in the work we are so passionate about. We experienced an energy in that room, a driving force for good, that we hope to carry with us in our human rights work.

 

Click here for our complete August 2019 Newsletter

Participation in Africa Month

Participation in Africa Month

By Muchengeti Hwacha, Johannesburg Intern.

As an organisation that works to protect and promote the rights of refugees, migrants and asylum seekers, ProBono.Org was invited to join a coalition of civil society organisations in planning events to celebrate Africa Day.

Given the recent xenophobic rhetoric from leaders across the political spectrum and the resultant violence it instigated, the coalition decided it was important to unite people around the hashtags ‘#AfricaForAll and #IAmAnAfrican’. The events were intended to engage with various stakeholders to address the causes of afro-phobia in South African society and the lack of government accountability when said phobia leads to violence and death. More importantly the events were intended to provide a space for open and honest dialogue that would breed common understanding among a divergent group of people.

 

The events included:

Youth Engagement at the University of Pretoria

This engagement with international students at the University of Pretoria was intended to get an understanding of what it is like to be a young foreign national living, working and studying in South Africa. The turnout was overwhelming and the engagements thought provoking. Issues of language barriers, tribalism and stereotyping were highlighted as key concerns among the youth population. ProBono.Org organised, catered for and moderated the event.

Youth Dialogue at the Diepkloof Welfare Centre

This dialogue, held in the heart of Soweto, brought a message of understanding and inclusiveness to the Diepkloof community. The event created a platform for three brilliant speakers from the refugee, migrant and asylum seeker community to share their experiences with Diepkloof residents. The ensuing dialogue brought out strong emotions from both the residents and the speakers. The raw emotions expressed, rather than being divisive, actually allowed for an open and honest interaction which led to a deepened understanding of one another. ProBono.Org assisted in organising and moderating the event

For media coverage on the Youth Dialogue follow the link below:
https://sowetourban.co.za/59194/ diepkloof-residents-given-insightsimmigration/

Stakeholder Dialogue at the Constitution Hill Precinct

This dialogue provided a platform for professionals who work to protect and promote the rights of refugees, migrants and asylum seekers to speak about their work and highlight the challenges facing this community. The event also allowed for government officials to respond to the criticisms laid against them by the professional group. This high level engagement created an opportunity for interaction and potential collaboration between civil society and government officials working in the space. ProBono.Org assisted in planning and formed part of the panel of civil society speakers. Tshenolo Masha, the head of the Refugee and Immigration department at ProBono.Org, spoke on the legal perspectives of the migrant experience.

Africa Day Festival at the Catholic Archdiocese, Doornfontein

After all the serious discussions mentioned above the coalition decided to create a more celebratory atmosphere with a festival held in the middle of Johannesburg. This event brought together people from 20 different African countries to share food, fashion and music. The programme included live musical performances, a fashion show and various other activities for the whole family. ProBono.Org assisted with financial and logistical support.

The following organisations participated:

The Foundation for Human Rights (FHR), The Consortium for Refugees and Migrants in SA (CoRMSA), Constitution Hill, Amnesty International, Lawyers for Human Rights (LHR), The Centre for the Study of Violence and Reconciliation (CSVR), Africa Diaspora Forum (ADF), The Jesuit Refugee Service (JRS), The Refugee Children’s Project, The SA Congress of Non profit Organisations (SACONO), the City of Johannesburg, the Department of Arts and Culture, the Department of Justice and the Action Support Centre (ASC).

Click here for our complete June 2019 Newsletter

<strong>National Elections</strong> – a mediator’s perspective

National Elections – a mediator’s perspective

By Muchengeti Hwacha, Johannesburg intern.

On 8 May 2019 South Africans went to the polls for national and provincial (general) elections for only the sixth time in the democratic Republic’s short 25 year history, and only the fifth time that the Independent Electoral Commission (IEC) facilitated the election process. Despite that relatively short history the IEC has managed the monumental task of holding regular elections that have been deemed both free and fair by local, regional and international observers. At this critical time in South Africa’s democratic history I am proud to say that I assisted in a successful election process. Upon the recommendation of the national director, I was appointed to form a part of the IEC’s Gauteng conflict mediation panel. I was honoured to participate in deepening the roots of this fledgling democracy.

The IEC received a significant amount of criticism following the elections. However, at the risk of being deemed conflicted, I would like to provide some context for the enormous task that the IEC takes on every five years.

The IEC was formed on 17 October 1996 as one of the so called ‘Chapter Nine’ institutions, established under the Constitution. These institutions are tasked with strengthening constitutional democracy in the Republic. Under section 190 of the Constitution the IEC is specifically tasked with;

(a) managing the elections of national, provincial and municipal legislative bodies
(b) ensuring that those elections are free and fair, and
(c) declaring the results of those elections within a period that must be prescribed by national legislation and that is as short as reasonably possible.

These three tasks look simple enough, but have often been the cause of violent conflict the world over, and more recently with our SADC neighbours; Kenya, Zimbabwe and the DRC. The cautionary tale of property damage and loss of life that played out in these countries illustrates the weight that is on the IEC’s shoulders every election cycle. These fears were compounded by various incidents in the lead up to the 2019 general election, including;

  1. The flare up of xenophobic violence in Durban
  2. The service delivery protests in Alexandra
  3. The Western Cape High Court ruling that threatened to postpone the elections
  4. A Constitutional Court ruling that required the voters role to include addresses
  5. The threatened strike action by IEC employees

The IEC is constitutionally mandated to handle all the issues above and more. Above and beyond this, the IEC was required to train, equip and mobilise a labour force of over 200 000 employees and approximately 50 000 volunteers. This staff contingent was to be spread out across 28 700 polling stations across the country. The challenge is made more onerous when one takes into account that this has to be done in co-ordination with the South African Police Service, the South African Defence Force, the National Disaster Management Centre, the various media houses, political parties and over seventeen and a half million voters. There is no private or public institution that has to mobilise that number of people, over such a short space of time.

It is within this context that the IEC had to operate, and if the statements of the various domestic and international observer missions are anything to go by, the institution succeeded. The issues that were highlighted by a number of the smaller parties and noted by the larger ones were important but overwhelmingly immaterial and negligible.

As a conflict mediator I personally witnessed IEC officials, spurred on by a commitment to the South African democratic project, going above and beyond the call of duty to serve this Republic. In what some political leaders declared the most important elections since 1994, I was honored to serve alongside them.

 

Click here for our complete June 2019 Newsletter

The importance of estate planning and having a will in place

By Naeelah Williams, Cape Town

Estate planning can be defined as planning and preparing for the transfer of a person’s assets upon death. Policies, pension funds, immovable and movable property all form part of one’s deceased estate. However, so does one’s debts and liabilities.

This article aims to amplify the significance of estate planning and will elicit important factors to be considered when doing so.

Planning one’s estate is crucial to ensure that your loved ones are looked after when you pass on. Having a Will drafted is therefore a vital part of getting your financial affairs in order and the foundation of every person’s estate plan.

ProBono.Org Cape Town has seen a number of clients who require assistance with the winding up of a loved one’s estate, only to discover that the deceased estate does not have the necessary liquidity required to settle the debts in the estate, or that people who have never cared for the deceased are to inherit. In most instances this results in extremely trying times for the family members, heirs and dependants of the deceased.

Here are four important factors to consider when doing the necessary planning:

1. Have a Will drafted by a qualified professional.

There are certain formalities in terms of the Wills Act, 7 of 1953, that have to be complied with in order for a Will to be accepted as valid by the Master of the High Court. Many clients approaching ProBono.Org present Wills that often do not comply with all the prescribed formalities which, in essence, renders the Will invalid.

– Once drafted, it is of utmost importance to review your Will on a continuous basis and to ensure that it is up to date, especially after major life events such as death or divorce, and
– Leave clear directions with someone you trust as to where your Will can be found.

2. Take care of who you appoint as the Executor of your estate.

Understanding the importance of this becomes apparent when one understands the role of the Executor. The Executor is the person you appoint to be in charge of your financial affairs after your passing. The Executor’s role is an important one and it is essential that you consider whether the person you are appointing understands the responsibilities of administering a deceased estate.

3. Nominate legal guardians for your minor children.

This is of utmost importance if you have minor children. A testator has the freedom of testation and may appoint in his or her Will the person who will act as the children’s guardian upon his/her death. In almost all instances, the surviving parent becomes the guardian, and for this reason many people tend not to appoint a guardian when drafting a Will. However, we urge people who are in the process of getting their affairs in order to nominate a guardian in the event that the surviving parent passes away. This is essential as every parent would want the person acting as the guardian of their minor child/ren to give him/her the same love and care the parent would have given.

4. Consider how your debts may affect your estate.

The heirs to your estate are often burdened by the debt you incurred during your lifetime. It is thus important to be honest with your heirs and to start paying off your debt while you are still alive or, alternatively, to consider taking out some form of life or debt protection insurance.

It is of paramount importance to take heed of the implications of passing on without leaving a valid Will. In South Africa, if a person passes on without a valid Will, his/her estate will be administered in terms of the Intestate Succession Act, 81 of 1987. Intestate succession involves matters around ‘blood’ relationships. If one passes on intestate, one’s estate will be inherited by his/her closest blood relatives. This would entail that the deceased’s spouse will receive R250 000, 00 or a child’s portion, whichever is greater. The residue of the estate will be inherited by his/her children in equal shares. Should the deceased pass on without leaving behind a surviving spouse, the entire estate will be inherited by his/her children in equal shares. If the deceased passes away without being survived by a spouse, or any descendants, the estate will be inherited by his/her parents and thereafter by his/her closest blood relative/s.

Comprehending and dealing with the loss of a loved one is devastating. It is however advisable and strongly recommended that family members make contact with the Master of the High Court and all other relevant financial institutions as soon as is reasonably possible, as fraud and criminal activity are rife even during trying times such as death.

 

Click here for our complete April 2019 Newsletter

Section 17 of the Consumer Protection Act, the lacuna

By Sanele Zondi, Durban Intern

The Consumer Protection Act, 68 of 2008 (“the Act”), is one of the most important pieces of legislation for the indigent. The purpose of the Act as per section 3(1) is to promote and advance the economic and social welfare of the consumer by providing the legal framework for achieving a consumer market that is fair, accessible and responsible. The Act provides for a variety of consumer rights, but the most notable is section 17, which provides that consumers can now cancel reservations, bookings and orders, except for special ordered goods, and the supplier of the goods and services may impose a reasonable charge for cancellation.

The drafters of the Act however left a lacuna that the suppliers of goods and services have been able to exploit and use to their advantage. The term “reasonable charge” is not defined in the Act and as a result suppliers of goods and services often impose exorbitant cancellation charges to prevent consumers from cancelling their reservations, booking or orders, or to make a substantial profit despite the cancellation.

Looking at case law for an interpretation of a reasonable charge, we have found the case of Lombard V Pongola Sugar Milling where the court held that a reasonable charge/remuneration would be the usual charge for the goods. We need to consider the purpose of the Consumer Protection Act, that is to promote the economic and social welfare of consumers. Imposing exorbitant cancellation charges goes against the purpose of the Act as it creates an unfair and inaccessible market, especially to the indigent who were intended to be the beneficiaries of this legislation.

One respectfully submits that most suppliers of goods and services still follow and view cancellation of a reservation or order as repudiation and the imposition of a reasonable cancellation charge as restitution. This however, is not the approach that the Act envisages. The Act envisages the promotion of social and economic welfare of consumers and it is submitted that regulation of the reasonable charge is necessary.

 

Click here for our complete April 2019 Newsletter

Unlawful Property Sales and Illegal Evictions by “Agents”

By Zunaid Latief, Cape Town intern

In South Africa the conventional purchase and sale of immovable property is administered by registered estate agents who analyse the property market, accompany clients to property sites, discuss and advise on conditions of sale and prepare agreements of purchase and sale between buyers and sellers. The process is further overseen by a conveyancer, who ensures that the necessary legal formalities are complied with and essentially ensures that transfer and registration take place.

Although it is legal for owners and prospective purchasers to buy and sell immovable property privately, it has become apparent that the Cape Flats and township areas within the Western Cape have been plagued by the presence of ordinary community members, who undertake to facilitate the process without the necessary mandate, or complying with the relevant legal framework. These individuals are often referred to as “agents” but are neither legal practitioners nor registered estate agents. In essence, their sole aim is to benefit from a healthy commission on conclusion of an unlawful transaction.

Common practice amongst these individuals entails the facilitation of a purchase and sale of immovable property by way of an affidavit and cash transaction. In the event that either the buyer or the seller has a legal dispute after the agreement has been concluded, it places them in a precarious position, as they find they have limited legal recourse available to them. At this stage, the “agent” has already received his or her compensation and is nowhere to be found.

The Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) safeguards South Africans from being unlawfully evicted from the land or property they occupy. It further sets out the procedure for the eviction of unlawful occupiers of land and avers that no person may be arbitrarily evicted from their home. Attorneys are therefore often appointed to ensure that eviction proceedings comply with the provisions of the Act. However, in light of consultations held with affected parties, it is evident that these “agents” blatantly disregard the provisions of the Act. In situations where the seller’s property is occupied by tenants or backyard dwellers, the “agent” often acts as an enforcer and proceeds to eject these occupiers forcefully and illegally.

It has become clear that a number of underprivileged and marginalised individuals are completely misguided and have little to no knowledge regarding the legalities related to the purchase and sale of immovable property, as well as the eviction process, and they become easy targets for these so-called “agents”. In an attempt to combat this scourge, ProBono.Org Cape Town has embarked on a mission to host several community legal education workshops in affected areas. The aim of these is to empower and enlighten marginalised individuals with basic knowledge in respect of the acquisition and disposal of immovable property and the legal implications in respect thereof. These workshops also focus on and break down the PIE Act, with the aim of educating community members in respect of their rights and responsibilities relating to eviction disputes.

 

 

Click here for our complete February 2019 Newsletter

Dialogue on Mandela the Lawyer

Dialogue on Mandela the Lawyer

In collaboration with the Nelson Mandela Foundation (NMF), ProBono.Org held a dialogue on Nelson Mandela the legal practitioner on 11 October to mark the centenary of Madiba’s birth.

The conversation was the first of several planned to start a conversation about the importance of pro bono work and the ethics and values needed to reshape the profession to be more public-spirited. The conversation was started by Sahm Venter, senior researcher at the NMF, who emphasised the importance of pro bono work during apartheid and the work of the Independent Defence and Aid Fund (IDAF) established by Canon John Collins of St Paul’s Cathedral to defend political activists.

Former Constitutional Court Judge Albie Sachs spoke about how Madiba the lawyer was a commanding presence in a courtroom. He stressed the importance of not seeing Mandela the lawyer as a conflict with Mandela the revolutionary. He used the law to make a living and also to fight for his people in court. His legal experience also helped him when it came to drafting the Constitution.

Lwando Xaso, senior associate at ENSafrica, found Mandela’s speech about being “a black man in a white man’s court” relevant today for young black lawyers in law firms where they are expected to dress and act according to the firm’s culture and thereby feel they are losing their own culture and feel alienated in their workplaces. It is sad that even as transformation is on people’s lips and in their policies, they do not make an effort to get to know their black lawyers. Several audience members, who were mainly young black lawyers, echoed this feeling. One said that she had found that in her community people did not know about the Constitution and she felt she could give back by educating them about the law.

ProBono.Org National Director, Michelle Odayan, who facilitated the dialogue, said that legal practitioners who give their time and experience to provide access to justice should not be regarded as poor and inferior. We are planning to hold further dialogue sessions on topical issues in 2019 as part of our young lawyer development programme.

Click here for our complete December 2018 Newsletter

Defamation via social media – rights vs responsibilities

 By Uzair Adams

Social media platforms have become an increasingly convenient and instant means of communication across the globe. However, easy access to Facebook, WhatsApp and Twitter, amongst others, does not come without drawbacks, particularly relating to matters of defamation.

Defamation via social media has been the bone of contention of several hearings before the Commission for Conciliation, Mediation and Arbitration (CCMA), particularly where employees share information regarding their employers that is disgraceful or detrimental to their employers’ reputation.

On 6 November 2018, ProBono.Org Cape Town was approached by a children’s hospice for assistance with a labour dispute relating to the conduct of an employee, where an allegation was made via a WhatsApp text message to one of the employer’s board members alleging maladministration, financial mismanagement and a lack of transparency by the CEO of the nonprofit organisation.

The employee was subsequently charged with defamation of character, in that he intentionally conveyed false information to the board member, and was further charged with bringing the organisation’s name into disrepute, in that he claimed that the CEO had misrepresented the organisation’s financial position to the Department of Social Development.

In this regard, a disciplinary hearing ought to have been held on 22 August 2018, where Mr. M was appointed as an independent chairperson, but he was unfortunately involved in a serious accident and was no longer able to oversee such disciplinary process. The children’s hospice, like many NGOs in South Africa, is currently faced with an unfortunate funding crisis, and has limited financial and human resources available that would have enabled a fair and thorough disciplinary hearing. ProBono.Org Cape Town proceeded to brief counsel to act as an independent chairperson and to facilitate the disciplinary hearing, which was held on 23 November 2018.

Summary of the Chairperson’s findings:

  • The chairperson noted that he could not find the employee guilty on both allegations as it would amount to a duplication of “convictions”.
  • The chairperson could see no evidence showing that the employee had brought the employer into disrepute. The allegation made was via a private WhatsApp text message to one of the employer’s board members. There was therefore no evidence that the employee’s allegation was publicised in any way, or that it affected the employer’s reputation.
  • The question remained whether the employee was guilty of defamation of character in that he ‘intentionally gave false information that humiliated and belittled the CEO, which made her look foolish and ridiculous and which rendered her less worthy of respect by the board members. The chairperson found the employee guilty of this allegation, in that he conveyed information to one of the employer’s board members which was false. If the employee had made the proper inquiries, he would have discovered that there was no inflation of figures. The CEO confirmed (and it was not contested) that the Department was fully aware of how the employer arrived at its figures and accepted that the employer was acting appropriately.
  • The chairperson further noted that he did not accept that the employee made the allegation in order to bring an impropriety to the attention of the board. If that was so, the employee would have sent a message detailing that concern. However, the allegation relating to inflating figures was a throw-away (yet deeply insulting) remark.
  • Moreover, the chairperson considered whether the employee’s allegation amounted to a protected disclosure for the purposes of the Protected Disclosures Act and found that it did not.
    • Firstly, the allegation was not a ‘disclosure’ within the definition of the Act, given that it did not relate to a serious impropriety within the meaning set out in Malan v Johannesburg Philharmonic Orchestra (JA 61/11) [2013] ZALAC 24 (12 September 2013). The allegation was one relating to figures which were readily available and known by the board. They were also known by the Department which accepted them and the manner in which they were calculated.
    • Secondly, the employee’s allegation was made to the employer and, in terms of the Protected Disclosures Act, had to be made in good faith, which the chairperson did not accept was the case under the circumstances.
  • The employee’s conduct was therefore unacceptable, and the appropriate sanction imposed was a written warning suspended for 6 months on condition that the employee was not found guilty of similar misconduct within the stipulated period.

Employees now have several platforms where they can vent their frustration and raise concerns regarding their employers. However, employees ought to utilise such platforms responsibly or face severe consequences, as illustrated in this case. While freedom of speech and expression, together with the right to privacy, affords us great power, the risk of publicly defaming the character of another has increased exponentially with the constant evolution of the social media landscape. Consequently, we have to remain cognisant of the fact that with such great power comes great responsibility.

Click here for our complete December 2018 Newsletter