In a judgment handed down by the Constitutional Court on 10 October 2023 ( Liebenberg v S (CCT 145/22) [2023] ZACC 33), the Court dealt with whether evidence from the employee’s disciplinary processes could be used at the employee’s subsequent criminal trial in regard to the issues that were also the subject of the disciplinary hearing, and which evidence was alleged by the employee to have been obtained in an unconstitutional manner.

The employee was employed as an estate administrator.  When administering an estate, the employee was obliged to follow certain procedures, rules and policies. One of these related to the Administration of Estates Act, and that no monies could be paid out prior to the finalisation of the liquidation and distribution account except in two special circumstances: funeral costs and the subsistence of family members.

Investigative consultations were conducted and this led to the employee being charged for negligently failing to follow the procedures, rules and policies.

The employee was interviewed as part of the investigation process, which interviews were recorded and the employee also made written statements during these two interviews.  Transcripts of the recordings were subsequently also prepared.

The employee was suspended pursuant to the disciplinary hearing and was later dismissed. Thereafter the employee was subsequently charged criminally.

The employee/accused was convicted and the matter eventually reached the Constitutional Court, where the question was whether evidence from the employee’s disciplinary processes could also be used at the accused employee’s criminal trial.

The employer’s evidence was that because it was an informal gathering of information, and that a staff member or a union member was permitted to be present when the employee made her statements, and the evidence was not obtained in an unconstitutional manner.

On the other hand, the employee said to the Court that she thought she was being called to the office to sign her suspension forms and was not at the office to be interviewed, and that she had signed the statement to get the entire debacle behind her.

The employee also contended that the statement she made during the disciplinary process was unconstitutionally obtained, because she was compelled to make a statement and her right to silence was not explained to her. The employee submitted that the proceedings were thus fundamentally unfair and irregular.

The Court found that if evidence is obtained unconstitutionally that this can indeed render a trial unfair, however based on the facts in this case ie. the evidence that was alleged to have been obtained in an unconstitutional manner did not factor into the decision made in convicting the employee, the issue of whether the evidence was obtained in an unconstitutional manner was not relevant to this case.

The above judgment is not only a lesson to employees that they should obtain legal advice during the investigation stages which may lead to a disciplinary hearing being held, but it is also a lesson to employers that they must follow fair procedures in obtaining evidence that they wish to rely on at subsequent disciplinary hearings.