01 November 2019

In the matter between:

Mr Sandile Welcome Linda (“Accused”)

Employee

and

MOBILE THREAD REPAIRS (“Complainant”)

RUSTENBURG, HEAD OFFICE Employer

OUTCOME OF DISCIPLINARY HEARING

HELD ON THE 31st OF OCTOBER 2019

DETAILS OF HEARING AND REPRESENTATION

1. The accused is charged with:

1.1 Any form of dishonesty – Theft.

2. The following parties were present:

2.1 Chair person L Loots

2.2 Accused SW Linda
2.3 Complainant W Janse van Rensburg
2.4 Employee’s Representative Not requested
2.5 Interpreter Not requested
2.6 Witnesses Not requested

3. Procedural Aspects:

3.1.1 The accused stated that he did receive a notice to attend the inquiry and was
aware of the date, place and his rights (stipulated on the notice to attend).

3.1.2 The accused stated that he had been given enough time to prepare for the inquiry.

Item 4(1), from the Code of Good Practice schedule 8 of the LRA as amended
states that the employee should be entitled to a reasonable time to prepare the
response.

3.1.3 The accused had no objections before or during the disciplinary inquiry. The
accused stated that he will represent himself during the disciplinary inquiry.
 3.1.4 The accused did not require an interpreter and the hearing was conducted in
English.

4. The accused stated that he did understand the charge as stated above.

5. The accused pleaded guilty on the charge 1.1.

6. During the inquiry both parties had the opportunity to cross-examine each other.
The chairperson asked questions during the course of the proceedings in order to
clarify certain issues stated by the complainant and/or the accused.

7. Both parties had the opportunity to submit mitigating and aggravating circumstances,
as they duly did (refer to minutes)

8. Substantive Aspects:

9.1.1 The complainant was given the opportunity to give evidence in terms of the
charges as well as the reasons why they were brought against the accused.
The accused had the opportunity to give his statement and to respond to the
evidence presented by the complainant in terms of the charge.

9. Attached hereto please find the minutes of the hearing.

CASE FACTS

The accused is appointed as a technician employed since February 2018.

The complainant stated that the accused took a LED light from the client, Barlow, premises
without permission on the 21st of October 2019. The accused was arrested on site.

The accused stated that a week before that day he did ask one of the employees, Philimon,
if he can have the light. Philimon permitted and told him that it would not be a problem. On
the 21st of October 2019 he carried the light inside his lunch bag knowingly that he would be
searched by the security. He did not realize he followed the incorrect procedure by taking
the light.

During cross examination he responded that he was unaware that he is stealing the light for
he did ask permission from an employee. Philimon did not inform him about the correct
procedure to ask permission from management or to get the relevant documentation before
removing the light from the premises.

SANCTION

In reaching my decision on the appropriate sanction, I considered amongst others the

following factors as submitted in writing by both parties:

• Can the employee be trusted in the continuation of his functions;

• Is the employer-employee relation still salvageable;
• Would a lesser sanction serve a purpose;
• What interests of the employer are to be protected;
• The severity of the offences of which the employee have been found guilty;
• The impact of the offences on the employer;
• The employee’s personal circumstances;
• The employee’s training in the position
• The employee’s long service record with the employer
• The employee’s record with the employer over the years

During the inquiry both parties had the opportunity to cross-examine each other. The
presiding officer asked questions during the course of the proceedings in order to clarify
certain issues stated by the complainant and/or the accused.

In Sidumo vs Rustenburg Platinum Mines (2007) 12 BLLR 1097 CC, the constitutional court
confirmed that multiple factors need to be taken into consideration when a decision is made
towards an appropriate sanction after a disciplinary hearing was done. These factors
include the importance of the rule that was breached, the damages that the company
underwent because of the employees actions, personal conditions and the length of service
from the employee.

It is my fullest intent to ensure that the discipline in the workplace is of the highest standard
and I only act on the best behalf of the company.

In Council for Scientific and Industrial Research vs Fijen (1996) 6 BLLR 685 AD 691 I, the
appeal court described the relationship between the employer and the employee as “in
essence one of trust and confidence”. The Respondent stated that the company cannot
trust the Applicant anymore and that the employer-employee relationship is in complete
ruins and thus no longer possible.

Item 3(4) from the Code of Good Practice, Schedule 8 of the LRA as amended states, that
dismissal is not appropriate for a first offence, except in the case of serious offences which
makes a continued employment relationship impossible (trust relationship).

Item 7 from the code of good practice, schedule 8 of the LRA amended states, the
employee contravened a rule or standard regulating conduct which the accused was aware
of, or could reasonably be expected to have been aware.

During the disciplinary hearing on cross examination the accused realized and understood
his wrong doing by asking permission from the person that is not labeled as the authorized
person. In other words, he asked the wrong person.

Furthermore, the accused is aware of the rule that it is prohibited to take anything from the
company or the client without permission, but he is adamant that he did get permission to
take the LED light. He was unaware that he failed to follow the correct procedure by not
getting permission from management.

Balance of probability, I noticed that the accused provided three different statements during
the inquiry namely; the meeting held with the client, his written statement and the statement
provided during the disciplinary hearing. One version is noticeably consistent that he is
adamant he did not steal the LED light, he had permission to take it.

During aggravating circumstances the complainant stated that due to the accused behaviour
their contract with the client is in jeopardy. They banned the accused from all their sites and
the company has no alternative positions available.
 In the high court of South Africa in the appeal case between Joseph Ndayi and State, Case
No. Case 163/2001, theft defined as:

“In current South African law theft is defined as an unlawful and intentional appropriation of
a movable corporeal property. C.R. Snyman Criminal Law, Ed. at p.469 et seq elaborates
on the different components of this basic definition, that is the elements of the crime, in
relation to the different types of theft. J.R.L. Milton, South African Criminal Law and
Procedures, vol. 2, 3rd Ed. states the following at p.617”

“In South African law it is not sufficient that the accused intentionally affected a contrectatio
of the property. In order for there to be the mens rea of theft the contrectatio must be
accompanied by an intention permanently to deprive the owner of the benefits of his
ownership.”

Taking the above into account it is clear that the act of theft is when the intention is to
permanently deprive the owner of its property.

I find the accused guilty as charge.

Taking all of the factors into account, the correct outcome of this disciplinary hearing, I
therefore recommend: Termination of service with immediate effect.

This Outcome is done and signed at RUSTENBURG on the 01 day of NOVEMBER 2019

Lydia Loots
Appointed Presiding Officer by
Multiform Human Development