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 Grogans 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 employers 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 victims 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 employers 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 supervisors 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 employees 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 employees 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 respondents 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 respondents 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
applicants 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 employees 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 applicants 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 Janes 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 Nampaks 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 applicants (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 companys 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 unions 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
employees 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.zas Legal Department in Pretoria