FOR1502 Study Guide

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ONLY STUDY GUIDE FOR
Selected crimes and transgressions I
NATURE, CONTENT AND SCOPE
Page
INTRODUCTIONvii
Study unit 0: FOUNDATIONAL UNDERSTANDING OF POLICING
AND SOCIAL ORDER IN PRE-COLONIAL AFRICA/
AFRIKAxi
1. Pre-colonial Africa: an introduction xii
2. What is philosophy? xii
3. Criminal justice in pre-colonial Africa xiii
4. Decolonisation of curriculum xiii
5. Social justice xv
5.1 Equity, equality and justice xvi
6. Alternative dispute resolution (ADR) and restorative justice (RJ) xvii
7. Ubuntu xviii
Referencesxx
SECTION I: DISCIPLINARY TRANSGRESSIONS 1

STUDY UNIT 1: DISCIPLINE IN THE SOUTH AFRICAN
LABOUR ENVIRONMENT 3
1.1 Introduction 4
1.2 The need for an investigation 5
1.3 Codes of conduct 8
1.4 Disciplinary misconduct 10
1.5 Poor performance is not misconduct 11
1.6 Misconduct 11
1.7 Levels of misconduct 13
1.8 The investigation of misconduct 14
1.8.1 Gathering evidence 14
1.8.2 Obtaining statements 15
1.9 The disciplinary procedure 15
1.10 Off-site misconduct 16
1.11 Social media and the workplace 16
1.12 Summary 17
Self-assessment18
STUDY UNIT 2 – MISCELLANEOUS MATTERS 19
2.1 The criminal justice system in South Africa 20
2.2 Different tribunals 22
2.3 Is justice a western concept? 24
2.4 The investigative cycle 26
FOR1502/1iii
2.5 Investigative mandate or letter of engagement 26
2.6 Investigative report 27
2.7 Procedural fairness 31
2.8 Substantive fairness 31
2.9 Standard of proof 32
2.10 Burden or onus of proof 32
2.11 The five-questions rule 32
2.12 Summary 34
Self-assessment34
STUDY UNIT 3: – ABSENTEEISM 35
3.1 Absenteeism 36
3.2 Legislation, company policy and codes of conduct 37
3.3 Investigation 38
3.4 Frequently asked questions 40
3.5 Summary 42
Self-assessment43
STUDY UNIT 4 – NEPOTISM 45
4.1 Concept definitions 46
4.1.1 Nepotism 46
4.1.2 Cronyism 46
4.1.3 Patronage 47
4.1.4 Favouritism 47
4.1.5 Cadre deployment 47
4.2 Origin of nepotism 47
4.3 Discussion 48
4.5 Other possibile manifestations of nepotism 52
4.6 Procurement policy to avoid nepotism 54
4.7 Related legal issues 56
4.8 Summary 58
Self-assessment58
STUDY UNIT 5 – RACISM 59
5.1 Lenses 60
5.2 Sticks and stones 62
5.3 What is racism? 63
5.4 Racial words and expressions 64
5.5 Discussion 64
5.7 Other forms of discrimination 67
5.8 Summary 68
Self-assessment68
STUDY UNIT 6 – MISUSE OF COMPANY PROPERTY 69
6.1 Company property 70
6.2 Misuse or unauthorised use of company property 71
6.3 Policy matters 74
6.5 Abuse of company property 78
6.6 Ethics and the use of company property 79
6.7 Summary 81
Self-assessment81
References82
iv
SECTION II: CRIMINAL OFFENCES 89
STUDY UNIT 1 – THEFT 91
1.1 Introduction 92
1.2 Legally speaking – what does the law say? 93
1.3 Elements of the crime 95
1.3.1 Element 1: appropriation 96
1.3.2 Element 2: corporeal property 96
1.3.3 Element 3: ownership 96
1.3.4 Element 4: intention of theft 97
1.4 Company policy 98
1.5 Incident 98
1.6 Conducting an investigation into theft 99
1.7 Offences related to theft 106
1.8 Summary 107
Self-assessment107
STUDY UNIT 2 –PERJURY AND DEFEATING OR OBSTRUCTING

THE COURSE OF JUSTICE 109
2.1 Introduction 110
2.2 Types of perjury 111
2.2.2 Perjury 111
2.3 Statutory perjury 113
2.4 Subornation of perjury 114
2.4.1 The specific conduct 114
2.4.2 Unlawfulness 115
2.4.3 Intention 115
2.5.1 The investigation: case study 1 116
2.5.2 The investigation: case study 2 117
2.6 Defeating or obstructing the course of justice 118
2.6.1 Discussion 119
2.7 The investigation 120
2.8 Summary 127
Self-assessment128
STUDY UNIT 3 – HARASSMENT AND SEXUAL HARASSMENT 129

3.2 Legislative protection 132
3.3 Harassment defined 133
3.4 How it manifests 134
3.5 Addressing the matter 135
3.5.1 The investigation of an harassment or a sexual harassment
complaint137
3.6 Summary 139
Self-assessment139
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STUDY UNIT 4 – COMMON ASSAULT 141
4.2 Historic overview 142
4.3 Defining common assault 144
4.3.1 Unlawfulness and intent 144
4.3.2 Application of force or violence 145
4.3.3 The belief that force is imminent 145
4.4 The investigation of common assault 146
4.4.1 Preliminary investigation 147
4.4.2 Protect the scene 149
4.4.3 Administration of the investigation 149
4.4.4 First information statement 149
4.4.5 Witness statements 149
4.4.6 Investigating an assault by threat 150
4.5 Summary 151
Self-assessment151
STUDY UNIT 5 – INTIMIDATION 153

5.2 Defining intimidation 156
5.2.1 Discussion 157
5.2.2 Investigation 157
5.3 Summary 158
Self-assessment159
STUDY UNIT 6 – MALICIOUS DAMAGE TO PROPERTY 161

6.2 Damage to property 162
6.2.1 Defining damage to property 163
6.3 The investigation of damage to property 165
6.3.1 The crime scene 165
6.3.2 Make field notes 165
6.4 Possible motives 166
6.4.1 Profit 166
6.4.2 Elimination of competition 167
6.4.3 Concealing another crime 167
6.4.4 Jealousy, revenge or spite 167
6.4.5 Vandalism and malicious mischief 167
6.4.6 Political motives 167
6.5 Potential evidence or exhibits 168
6.6 Statements 168
6.6.1 Statement of the complainant and witnesses 168
6.6.2 Statement of the investigator 169
6.7 Summary 170
Self-assessment170
References171
vi
Introduction
Dear Student,
Welcome to the module Investigation of Selected Crimes and Transgressions

(FOR1502). This is one of two investigative modules for the first year of the
BA Forensic Science and Technology. As the name of the module suggests,
we will be covering a selection of crimes (criminal acts) and transgressions
(disciplinary misconduct) that may occur within a work environment. Figure
1 below gives you an overview of what FOR1502 consists of and what we will
be covering.
SECTION 1 DISCIPLINARY MISCONDUCT

STUDY UNIT 1 Discipline
STUDY UNIT 2 Miscellaneous matters
STUDY UNIT 3 Absenteeism
STUDY UNIT 4 Nepotism
STUDY UNIT 5 Racism
STUDY UNIT 6 Misuse of company property
SECTION 2 CRIMINAL OFFENCES

STUDY UNIT 1 Theft
STUDY UNIT 2 Perjury and defeating or obstructing the course of justice
STUDY UNIT 3 Harassment or sexual harassment
STUDY UNIT 4 Common assault
STUDY UNIT 5 Intimidation
STUDY UNIT 6 Malicious damage to property
This module is offered online. It means that everything you receive in hardcopy
format will also be available online. Please make sure that your contact details
are up to date all the time as we will communicate with you by SMS, e-mail and
notifications on myUnisa. If you fail to make sure that UNISA has your correct
contact details, you will not receive important notifications such as reminders
of due dates for assignments, feedback and discussions. Refer to Tutorial Letter
101 for instructions regarding this matter. Tutorial Letter 101 is a key part of
your study material for the module. It contains important information such as
dates, assignment information and instructions to access myUnisa. Read all
the tutorial letters and visit the online module site on the myUnisa platform
regularly.
FOR1502/1(vii)
INTRODUCTION
The icons that will be used in this learning guide are listed below together
with a description of what each means:
Icon Description
Key concepts. The key-concepts icon draws

your attention to keywords or concepts that you
will come across in the topic or learning unit.
To supplement your understanding of the key
concepts in this study material, we have compiled
a multilingual glossary. Terms are explained in
the following indigenous languages:
Isi-Zulu
Setswana
Isi-Xhosa
You can access the multilingual glossary under
Additional Resources on the module site.
Learning outcomes. The learning outcomes indi-

cate aspects of a particular topic or learning unit that
you have to master and demonstrate that you have
mastered.
Read. The read icon will direct you to read

certain sections of the additional information for
background information.
Reflection. The reflection icon requires you to

reflect on important issues or problems in the
learning unit.
Assessment. When you see the assessment icon,

you will be required to test your knowledge,
understanding and application of the material
you have studied.
(viii)
Introduction
Time out. The time-out icon indicates that you should

take a rest because you have reached the end of a
learning unit or topic.
Refer to Tutorial Letter 101 to find out how the contents of this study guide
should be approached. You are requested to actively engage with the study
material by underlining or highlighting text and making notes and summaries.
A multilingual glossary of terms is available on the module site on myUnisa

under Additional Resources. You are advised to consult it for an explanation of
the terms that are used in the Forensic Investigation discipline.
This module will be useful to persons who are employed in the corporate, private
and public-service law enforcement agencies and who investigate criminal
actions or disciplinary misconduct in their work environment. The focus of the
study material and, therefore, the approach to investigations will be from the
perspective of the corporate or private environment. Please note that, because
of the scope of the module, we will not deal with investigators who work in the
short-term insurance industry, since most of their investigations are referred to
the Ombudsman for Short-Term Insurance (OSTI). The purpose of this module
is to give you a general understanding of the investigation of selected crimes
and transgressions such as intimidation, common assault, perjury, defeating
the ends of justice, absenteeism, misuse of company property, harassment,
sexual harassment, nepotism, and racism within the ambit of the South African
criminal justice system, common law, statutory law and company policies.
This module is focused on practical detective work and not on the work of a
forensic-laboratory scientist. As you work through this module, it is important
that you understand the multidimensional nature of being an investigator. It is
not as simple as you have seen in popular television programmes. Conducting
a forensic investigation will require perseverance, persistence, hard work and
dedication. It will also require you to do things in a specific and orderly manner,
keeping record as you go along. Since the end product will be tested by applying
a set of legal rules, it is important that whatever you do is done in an ethical
and lawful manner and can withstand legal scrutiny.
FOR1502/1(ix)
INTRODUCTION
(x)
0
ST U DY U NIT
Foundational understanding
of policing and social order in
pre-colonial Africa/Afrika
(1) Pre-colonial Africa: an introduction

(2) What is philosophy?
(3) Criminal justice in pre-colonial Africa
(4) Decolonisation of the curriculum
(5) Social Justice
(6) Alternative Dispute Resolution (ADR) and Restorative Justice (RJ)
(7) Ubuntu
TIME REQUIRED FOR STUDY UNIT
This study unit will require approximately 4 hours to complete.
1 hour to read the entire study unit

180 minutes to complete the five reflective tasks
FOR1502/1(xi)
INTRODUCTION
1. Pre-colonial Africa: an introduction

Before we proceed to the discussion of the content of the module, we need
to reflect on policing and social order as western disciplines imposed on a
seemingly lawless African continent. Because this is not a philosophy or African
politics module, reflection is vital if we are to take the content of the module
seriously and identify with its ethos. You will embrace the content only if you see
a reflection of yourself, your demographics and your story in the study material.
Therefore, the content must reflect Africa in all her beauty and splendour.
In the discussion that follows, the terms ‘Afrocentric’, ‘Eurocentric’, ‘African’

and ‘western’ will be used. Although there are several academic definitions for
each of these terms, in this discussion they mean the following:
Afrocentric regarding African or black culture as the most important

Eurocentric regarding European or western culture as the most important
African of African origin
Western of western origin
Many other terms and concepts are used in the study of African theories and
politics, but for the purpose of this discussion, we will refer to these four. We will
explore the relevant philosophy which incorporates the above-mentioned terms
after you have engaged with activity 01. Below you will find the information
pertaining to activity 01. This activity should take you no longer than 30 minutes.
01
Time for this activity: approximately 30 minutes.
01.1 Please view the videos on the module site under Lesson Tools titled
UNIT 0: PHILOSOPHY. Make brief notes.
01.2 Once you are done, proceed to the blog section UNIT 0: My views. Indicate
which of the philosophical views you prefer and explain why.
01.3 Then please read at least two other blogs and make at least one comment.
01.4 For additional reading, view Lesson Tools: STUDY UNIT 0: Additional
reading.
2. What is philosophy?
Philosophy is the study of problems, both general and fundamental, regard-
ing human existence, values, the mind, language, reason and knowledge. This
word is derived from the Greek word “philosophia”, which means the ‘love of
wisdom’. Why is it important that we have some understanding of philosophy?
Well, simply because it will help us to understand how we think about the so-
ciety we live in and other societies across the globe, our position in the world
and our place in the universe (or in some schools of thought, the pluriverse).
(xii)
Introduction
The majority of western or Eurocentric literature regards pre-colonial Africa

as a wild, lawless and untamed continent lacking any form of criminal jus-
tice. Therefore, colonisation was to establish “law and order” on the African
continent. The scholar Hegel was one of the most prominent writers who
devalued and excluded the African. From Hegel’s perspective, “Africa is said to
be unhistorical … devoid of morality, religions and political constitution. Hence he
holds that there is a justification for Europe’s enslavement and colonization of Africa”
(Adegbidin 2015).
Eurocentric views, for the most part, lack evidence. A growing body of scholarly
writings from the African continent since the early 1900s disproves them.
Writers such as Diop, Dubois, Fanon, Karenga, Kati and Walker, and Millar
presented evidence that Muslim scholars travelled to West Africa between the
11th and 15th centuries.
Whereas literature about policing and social order from a Eurocentric view
abound, literature that addresses these themes from an Afrocentric view is
quite scarce. Research showed a different African (or Afrikan) continent to
the one we know today. In the module APC1501: African Politics: The Politics
of Contemporary Africa, the authors give an overview of the history of the
African continent. Its name was given to the continent by Europeans and several
respected authors use it under protest (Ramose, 2005:4). This philosophical and
historical underpinning leads us to examine criminal justice in pre-colonial
Africa.
3. Criminal justice in pre-colonial Africa

In his article Pre-Colonial criminal justice in West Africa: Eurocentric thought
versus Afrocentric evidence, David Dalgleish presents evidence of the existence
of criminal justice in a large region of West Africa. He refers to the scholarly
works of Kati who mentions the “police chief, police commissioner and inspector
and chief of police of the town”. The works of Kati were translated from Arabic
into French in 1913 by the scholars Houdas and Delafosse (Dalgleish 2005;61).
Moreover, Fanon (1963:47) writes “Whether in the djemaas of northern Africa
or in the meetings of western Africa, tradition demands that the quarrels
which occur in a village should be settled in public”. This proves the existence
of structures to deal with disputes arising from a variety of causes.
African folklore abounds with stories of greed, theft, honesty,

humility, compassion, and benevolence (Witcher, 2020), and shows that justice,
equality and fairness in a society (a village or a town or a region) was not a
foreign concept to Africans prior to colonisation.
These philosophical ideas lead us to view everything we learn through the lens
of the decolonisation of the curriculum. Let us examine what this concept means.
4. Decolonisation of curriculum
Although the post-1994 South Africa is supposed to reflect social justice, equality
and fairness, many South Africans do not experience it. Nothing brought this
better to the fore than the 2015 #FEESMUSTFALL movement (Masiangoako,
2019). One of the demands was the decolonisation of learning material at
FOR1502/1(xiii)
INTRODUCTION
institutions of higher learning. In so doing, protesting students questioned

the “westerness” or Eurocentricity of most learning material. But before the
call for decolonisation can be implemented, much work has to be done. Jansen
(2017:2) writes the following in a book review on ‘Africanising the Curriculum’,
containing a variety of essays collected by Vuyisile Msila and Mischack Gumbo.
“The call for Africanisation (and decolonisation) is not without serious

problems. It is hard not to conclude from the chapters in this edited
book that Africanisation means black African. There is a racial and
ethnic chauvinism at play, which is betrayed through both the limited
range of authorship and the deployment of key words like ‘pure’ forms
of the African curriculum. Where is the focus on complex Khoisan
histories as in the research of Michael Besten? Or South African Indian
symbolic knowledges presented in the writings of Devarakshanam
(Betty) Govinden or radical Afrikaans literary explorations in works
from Andre Brink to Hein Willemse – and new breakthroughs in
creative fiction and poetry of Shirmoney Rhode and Ronelda Kamfer?
It is difficult not to conclude that what is being proffered is often an
essentialist black African version of Afrikaner nationalist thought”.
To this Jansen adds:
Which of course raises a critical issue about knowledge, curriculum and

identity in the 21st century. To insist on an African versus European
curriculum in the age of globalisation is naïve. Our knowledges are
integrated both at the level of knowledge as well as in the hands of
knowledge workers. Our leading intellectuals stand with their feet in
many worlds, travelling across borders and collaborating with their
colleagues in Asia, Latin America and the large, very diverse ‘West’.
The insistence on a ‘them vs us’ dichotomy this side of colonial rule is
anachronistic and unhelpful for those who actually do research and
writing across the world; examples of such powerful North-South
collaboration (led, incidentally, by black scientists from South Africa)
are in the field of health sciences at the University of KwaZulu-Natal
(in the area of HIV/AIDS research) and in cardiovascular research at
the University of Cape Town. Not only is world knowledge entangled
with theory from elsewhere – Southern Theory, for example – but new
discoveries are being made in the social and natural sciences through
transborder partnerships. Remaining trapped in a discourse of ‘the
West vs the rest of us’ is to ignore changes in knowledge work over the
past three decades since dependency theory held us captive. It is also
to ignore the changing authority of African scholars and scholarship.
This therefore begs the question. What does a decolonized curriculum look
like? I suspect that the answer to that question is not as simple as it appears.
In a recent media briefing, Professor Funmi Olinisakin, the vice-

president and vice-principal (international) and chair of the Equality
Leadership and Action Group at Kings College in London reportedly
said “Removing statues dedicated to colonialists … is not enough …”.
At university level, “You want to build an environment where every
member of staff and student feels a sense of belonging − that is at
the heart of what you do with the curriculum; it’s at the heart of the
institutional culture of our universities …[d]ecolonising the curriculum
(xiv)
Introduction
seems to be political, but it should be seen as a question of power …

[w]hat I hope will happen … is we will teach cultural competency
at the point of entry, so every student or staff who arrives here will
encounter the ability to see the world through the eyes of the other.
That changes everything.” (Mckie, 2020).
To decolonise the curriculum, it is vital that we consider additional principles

that play a vital role in our society and social processes. We will briefly touch
on social justice, equity, equality and justice, alternative dispute resolution and
restorative justice, and ubuntu. We will reflect on how these principles can be
applied to the lived experience of a modern forensic investigator at intervals
throughout the study guide.
5. Social justice
Social justice is not only a political but also a philosophical theory. It is founded
on the idea of “… fairness in relations between individuals in society … and
equal access to wealth, opportunities, and social privileges in a society” (CFI
2021).
Social justice comprises five principles, namely access to resources, equity,

participation, diversity, and human rights.
Former Public Protector Advocate Thuli Madonsela argues that “… in the South
African context, social justice is about just and fair access, as well as equitable
distribution of opportunities, resources, privileges and burden (Madonsela 2018).
In this module, you are encouraged to consider these five principles and
continuously ask yourself where and how you can apply these principles in
your investigations and personal life. This may seem challenging at first. But
I believe that with practice and collaborative feedback, we will be able to not
only share our thoughts and ideas, but also learn from one another. Feel free
to share these principles with your colleagues, friends, family and elders and
to ask their views on their application to daily life.
FOR1502/1(xv)
INTRODUCTION
REFLECTIVE TASK 0.1
Take a moment to reflect on the five principles of social justice as illustrated

in the diagram above. Please visit the module site, proceed to the Lesson Tools
and access the lesson titled Unit 0: Social Justice. Click on the link https://sji.
org.za/what-is-social-justice/ and watch the two videos.
Now proceed to the blog titled Unit 0: Social Justice and share your thoughts
with your fellow students (in no more than 200 words) on the following:
When was the first time you learned about social justice?
In what way did it change the way you approach life?
After watching the two videos, would you like to change certain aspects in
your community or work place for the better?
How would you go about effecting such change?
Read at least two other blogs and comment on at least one. Read and comment
on a blog that has a different view to yours. Remember to keep comments
courteous, civil and kind.
For further reading on this concept, please click on the links below:
https://socialjustice.co.za/
https://www.un.org/esa/socdev/documents/ifsd/SocialJustice.pdf
5.1 Equity, equality and justice

I am sure that all of us are familiar with the terms ‘equity’, ‘equality’ and
‘justice’. But what do they mean? Let us consider them in the graphic below.
(Equity and equality 2021)
(xvi)
Introduction
Having viewed the illustrations and read the explanations, do you have a better
understanding of what these terms mean? Let us engage.
REFLECTIVE TASK 0.2
Take a moment to reflect on the terms ’equity’, ‘equality’ and ‘justice’.
Please visit the module site, proceed to Lesson Tools and access the lesson titled
Unit 0: Equity, Equality and Justice. Click on the links and read the articles on
equity, equality and justice.
ht t ps : //on l i nepubl ic hea lt h.g w u.edu /res ou rces / eq u it y-v s-

equality/#:~:text=Equality%20means%20each%20individual%20or,to%20
reach%20an%20equal%20outcome
ht t ps ://v iablef ut u rescenter.org /racemat tersinst it ute /2014 / 04 / 02/

racial-equality-or-racial-equity-the-difference-it-makes/
Now proceed to the blog titled Unit 0: Equity, equality and justice and share your
thoughts with fellow students on the following:
Having read the articles, are there aspects of these concepts that you:
– understand better? (please share with us)
OR
– understand less (please share with us)
OR
– do not understand at all (please share with us)
Do you think that equality, equity and justice have a place in South African
society? (please elaborate on your answer)
Read at least two other blogs and comment on at least one. Read and comment
on a blog that takes a view different to yours. Remember to keep comments
courteous, civil and kind.
6. Alternative dispute resolution (ADR) and restorative justice (RJ)

Alternative dispute resolution (ADR) is a process that involves mechanisms
such as negotiation, mediation, arbitration and the ombudsman. Since litigation
is costly and for most South Africans unaffordable, there has been an increase
in ADR in South Africa (Thorolds Law 2021) as an alternative to the standard
legal processes. Uwazie (2011) contends that ADR suits the African context well
since reconciliation is its objective. Quite a number of very informative papers
on ADR are available. You can read more on ADR by clicking on the links on
the module site under Additional Resources: Unit 0: ADR.
The simplest way to describe restorative justice is justice that restores what was
lost, broken or hurt. Like ADR, restorative justice (RJ) is a process. The graphic
below displays the elements of as well as the parties (stakeholders) that may
be involved in the process. Without the buy-in of everyone, RJ will not work.
FOR1502/1(xvii)
INTRODUCTION
(RJC 2021).
The last concept, but certainly not the least, that we will consider is ubuntu.
7. Ubuntu
The final concept we need to take note of is ubuntu, a Zulu and Xhosa word.
In English it is defined as “a quality that includes the essential human virtues
of compassion and humanity” (Thomson 2020).
Bishop Desmond Tutu once said: “Ubuntu is very difficult to render into a
Western language. It speaks of the very essence of being human. When we
want to give high praise to someone we say, “Yu, u nobunto”: Hey so-and-so
has ubuntu. Then you are generous, you are hospitable, you are friendly and
caring and compassionate. You share what you have. It is to say, ‘My humanity
is inextricably bound up in yours’. We belong in a bundle of life.” (Desmond
Tutu Peace Foundation 2015).
Whereas western culture puts the individual and what is best for the individual
first, African culture is more focused on the group and what is best for the
group. My understanding of ubuntu is that “I am me only because we are us;
and because we are us, I can be me”. So, the individual is an inseparable part
of the group and vice versa.
(xviii)
Introduction
REFLECTIVE TASK 0.3
Click on http://www.scielo.org.za/pdf/ahrlj/v11n2/11.pdf and read the article.
Please visit the module site, proceed to the Lesson Tools and access the lesson
titled Unit 0: Ubuntu and share your thoughts with fellow students on the
following:
When was the first time you heard the word ‘ubuntu’?
In no more than 50 words, describe ‘ubuntu’. What does it mean according
to you?
What is your view on the article you have read? In no more than 200 words,
share your agreement or disagreement with the author and provide reasons
for your answer.
As an investigator in the South African forensic investigative context, whether

you are African, Coloured, Indian, Asian or white or from any other ethnic
group for that matter, you come with baggage (a background) and the people
you will be dealing with have baggage. And it is by understanding this baggage
that we will be able to navigate inter-racial and inter-gender communications
and respect those around us, whether they are suspects, victims or witnesses.
Mangaliso Robert Sobukwe once said that there is only one race to which we
all belong and that is the human race.
REFLECTIVE TASK 0.4
Take a moment to reflect on the content of this study guide. You can do this by
scanning the table of contents and the learning outcomes of each unit. In no
more than 100 words, write down what you hope to learn from this module.
Keep it in a safe place. You may either keep this to yourself and assess the
outcomes at the end of the semester or share it with your fellow students. If
you want to share it with your fellow students, please visit the module site and
proceed to the blog titled Unit 0: My expectations. You can post your expecta-
tions in the blog space.
There is a list of references at the end of the study guide. They are the sources
that informed the content of this study unit. They are for your convenience
should you wish to read any reference. We will now proceed to section 1 in
which we will examine disciplinary misconduct.
FOR1502/1(xix)
INTRODUCTION
REFERENCES
Adegbidin, O. 2015. Critical notes on Hegel’s treatment of Africa. Available at:
file:///C:/Users/bensobc/Downloads/121673-Article%20Text-334331-1-
10-20150904.pdf (accessed on 2020-07-02).
CFI. 2021. Social justice. Available at: https://corporatefinanceinstitute.com/
resources/knowledge/other/social-justice/ (accessed on 4 June 2021).
Dagleish, D. 2005. Pre-colonial criminal justice in West Africa: Eurocentric
thought versus Africentric evidence. African Journal of Criminology and
Justice studies, 1(1): 55-69.
Carter, A. 2018. Thanda: Desmond and the Very Mean Word. Available at:
https://thanda.org/desmond-tutu/ (accessed on 4 June 2021).
Desmond Tutu Peace Foundation 2015 see Carter 2018.
Equity and equality 2021 see Shipow, A., Singh, A. & Adhiambo, J. 2020.
Fanon, F. 1963. The wretched of the earth. New York: Grove Weidenfeld.
Jansen, J. 2015. The lost scholarship of changing curricula. South African Journal
of Science, 113(5/6): 1-2.
Madonsela, T. 2018. Social Justice: What Are We Doing Wrong? Address,
University of Stellenbosch. 8 September 2018.
Masiangoako, T. 2018. Rationalising injustice: the reinforcement of legal
hegemony in South Africa. SA Crime Quarterly, 66: 7-17.
Mckie, A. 2020. Tackling racism has to be a priority for universities, forum told.
Available at: https://www.timeshighereducation.com/news/tackling-
racism-has-be-priority-universities-forum-told (accessed on 2020-06-26).
Ramose, M.B. 2005. African philosophy through Ubuntu. Harare: Mond Books.
RJC. 2021. Restorative Justice Centre. Available at https://rjc.co.za/applying-rj-
in-sa/what-is-rj (accessed on 16 March 2021).
Shipow, A., Singh, A. & Adhiambo, J. 2020. Is your data inclusive? Optimizing
results by eliminating the hidden costs of research participation. Available
at: https://medium.com/busara-center-blog/is-your-data-inclusive-
ddd59933f108 (accessed on 2021-06-04).
Thomson, A. 2020. Understanding the Meaning of Ubuntu: A Proudly South
African Philosophy. Available at: https://theculturetrip.com/africa/south-
africa/articles/understanding-the-meaning-of-ubuntu-a-proudly-south-
african-philosophy/ (accessed on 11 June 2020).
Thorolds Law. 2021. Alternative Dispute Resolution in South Africa: Negotiation,
Mediation, Arbitration and Ombudsmen. Available at: https://www.
thorolds.com/product/alternative-dispute-resolution-in-south-africa-
negotiation-mediation-arbitration-and-ombudsmen-1st-edition/
(accessed on 13 March 2021).
Witcher, P. 2020. African Folktales: Importance, Commonalities & Changes.
Available at: https://study.com/academy/lesson/african-folktales-
importance-commonalities-changes.html (accessed on 2020-06-28).
(xx)
SECTION
DISCIPLINARY TRANSGRESSIONS
I
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2
1
ST U DY U NIT
Discipline in the South African

labour environment
This study unit will require approximately 2 hours and 15 minutes of your time.
1 hour to read the entire study unit.

75 minutes to complete the three reflective tasks and one self-assessment
activity at the end of the unit.
Knowledge is like a garden. If it is not cultivated, it cannot be harvested.
Meaning: for you to reap the rewards of your work, you should attend to it every
day, as you would a garden, watering it, taking out the weeds and introducing
fertilizer into the soil. (Mueni 2020)
In this study unit, we will briefly examine the origin of an investigation and
the role of the investigator during an investigation in a corporate environment.
We will consider the concept of disciplinary misconduct and examine the
different levels of misconduct. This study unit will not focus on a specific type
of misconduct; types of misconduct will be dealt with in study units 3 to 6 in
this study guide. African proverbs or idioms appear throughout the text as a
reminder of the fact that although most literature in this discipline stems from
western thought, the morals and values embedded in it such as respect for
the elderly, honesty, integrity, moral conduct, sound reasoning and ethics (to
name but a few), can be traced back to African idioms and proverbs. Mueni
(2020) reminds us that
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“African culture is deeply rooted in its people through music, quotes, and
sayings. Songs, for instance, have a way of sending a particular message. They
could be used to educate, warn, or praise an action. The same way, wise African
proverbs were used to pass a hidden message and influence good morals.”
1.1 INTRODUCTION
At the time when this study material was rewritten, the globe was in the throes
of COVID-19. The outbreak of this pandemic has had a profound impact on all
walks of life. The labour market was no exception. To deal with the pandemic,
government declared a national state of disaster at the end of March in 2020
under the Disaster Management Act (Act 57 of 2002) (SA Government 2021b). In
terms of this Act, government imposed several versions of lockdown to restrict
the movement of citizens and economic activities, all in the name of safety.
The severest form of lockdown was level 5. The entire economy was shut down
and life as we knew it, changed completely. People had to stay at home and
were only permitted to go to the store for necessary foodstuff or visit a doctor
after being screened for the virus. Masks that cover the nose and mouth had to
be worn in public and hand sanitisers became the norm. As 2020 progressed,
South Africa went through the different levels of lockdown until we reached
level 1, which was set to start at 01:00 of 21 September 2020 until midnight
of 28 December 2020 (SA Government 2021a). On the 5th March 2021, South
Africa was again on alert level 1.
Companies were confronted with a labour situation unlike any they had
experienced before. Employees were expected to work from home, maintain
normal office hours and be as productive (if not more so) as if they had been
at the office. When the lockdown restrictions were lifted, many employees
returned to the office where they had to comply with a number of measures
to ensure a safe work environment.
COVID-19 also influences the way in which investigators carry out their duties
and conducts investigations and interviews with witnesses, victims and suspects.
Since adherence to COVID-19 protocols is necessary, you must ensure that
you are familiar with these protocols and that you adhere to them, otherwise
you run the risk of becoming the subject of a non-compliance disciplinary
investigation yourself.
In this unit, you will encounter reflective tasks as well as practical tasks. I
strongly advise that you do as many of them as possible online since online
collaboration with fellow students enriches your learning experience. Feedback
on the reflective and practical tasks will only be given online.
4
Discipline in the South African labour environment
In this study unit, you will learn about
workplace conduct that is deemed very serious misconduct, serious

misconduct and misconduct
the difference between a disciplinary transgression and a criminal offence
the terms and concepts that are relevant to disciplinary transgressions
the importance and value of company policy and how it must relate to the
Labour Relations Act 66 of 1995
STUDY UNIT OUTCO MES
At the end of this unit, you should be able to
distinguish between conduct which is deemed very serious misconduct,

serious misconduct and misconduct
explain the difference between a disciplinary transgression and a criminal
offence
identify and define the different terms and concepts that are relevant to
disciplinary transgressions
explain the link between company policy and the Labour Relations Act 66
of 1995
1.2 THE NEED FOR AN INVESTIGATION

Society is governed by rules and laws. Some of them are written such as
the disciplinary rules of a school or the building rules and regulations in a
security complex, whereas others are unwritten. To be of any value, rules must
be enforced and there must be consequences when they are transgressed. When
a learner transgresses school rules, there must be consequences. If you live in a
security complex and do not comply with the rules, there will be consequences.
Some of them are more severe than others.
Within a corporate or company environment, there are also rules. They govern
aspects such as the times when employees must be at work and when they
may leave, how they are to use company resources, and how people are to be
appointed and promoted. These rules are usually in the form of company poli-
cies. For company policy to be valid, it must be based on current international
and South African legislation.
In criminal law, before a person can be charged with and punished for a crime,
there has to be a provision that explains that what the person did is a crime.
This is the principle of legality. The principle of legality is derived from the Latin
term nullum crimen sine lege which means that there can be no crime without
a prescribed punishment (Burchell 2013:34).
In a modern liberal democracy such as South Africa, the basic civil rights to life,
freedom and property are enshrined in the Bill of Rights. In western thought,
the principle of legality lies at the heart of the rule of law and is fundamental to
the respect for human dignity (Burchell 2013:33–34). This aspect is also strongly
emphasised in the African Charter as well as in the Universal Declaration of
Human Rights 1948 (Ikpang 2017:122). The principle of legality means that
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people can only be convicted and punished for offences that are found in law
(either in common law or in statutory law) (Burchell 2013:34–35). This means
that if the act you committed is not contained in any law of the country in
which you committed it, you cannot be charged with an offence.
Similarly, within a labour environment, before employees can be charged with

misconduct or transgression, there must be a rule or policy that explains the
forms of misconduct or transgression which the company deems unacceptable.
There are also precedents (an earlier event or action that is regarded as an
example or guide in subsequent similar circumstances), especially when certain
actions are not covered or adequately covered by policies or rules (similar to
the common-law principle) (Jones 2021). It is vital that employees are informed
of it. The Labour Relations Act, act 66 of 1995 (LRA) serves as a broad legislative
framework in which employer-employee relationships function. Based on the
framework of the LRA, many organisations have developed their own in-house
disciplinary code or codes of conduct.
These are important aspects because they influence how you approach any
investigation. The figure below depicts the possible flow of the initiation of an
investigation within the corporate environment and also applies to the more
formal environment of policing to a large extent. It is important to note that
before any investigation or inquiry is launched, something must have happened.
In other words, there must be an incident such as a person reporting late for
work, being absent from work without permission, or a complaint from a worker
about perceived unfair treatment. A report must also have an origin, which is
usually a co-worker or a manager. It is also crucial that whatever is reported
or complained of must be in writing. Sometimes, information is received from
a company’s fraud or ethics hotline. In this instance, the identity of the whistle-
blower is not revealed. The investigator may then be required to launch an
investigation. Investigations have also been launched based on media reports.
In some instances, the investigator may be required to formulate the basis for
the investigation as well as the scope and the objectives. However, this is not
the norm (Jones 2021).
It is ill-advised to commence an investigation when a rumour is going round

or when neither the affected line manager nor your own team manager have
put the complaint in writing.
If you pick up one end of the stick, you also pick up the other.
Meaning: When the action that is required is intense, one cannot select only parts
of the action: one takes part in all of the action (Mueni 2018).
6
REFLECTIVE TASK 1.1
Take a moment to reflect on the role that rules play in your life. Reflect on
the time your parents, guardians or caregivers explained to you what type of
behaviour is acceptable and what is not.
Please visit the module site and proceed to the blogs. Access the blog titled
Unit 1: Company Policies.
Share your thoughts with your fellow students on the following:
How strict were the rules that your parents, guardians or caregivers imposed
on you?
Were there times when you challenged these rules?
What were the consequences?
How did it make you feel?
When you become a parent or guardian, will you do things differently? Please
explain why or why not. Read at least two other blogs and comment on at least
one. Try to read and comment on a blog that holds a view that differs from
yours. Remember to keep comments courteous, civil and kind.
Based on figure 1.1 below, an incident occurs, is reported, and needs to be

investigated. Usually, the manager (team manager) of the forensic investigation
team is asked to investigate the incident. Based on the mandate of this
department, the team manager will select and task an investigator to investigate
the incident. The tasking must be in writing, which includes an e-mail.
After a preliminary investigation, the investigator needs to determine whether

the incident amounts to criminal conduct or a disciplinary transgression
addressed by company policy. Some companies have specific procedures for
each of these scenarios. Often an incident is both a possible criminal offence
and a disciplinary offence, or a combination of both. Civil redress is often
also an important part of an investigation, for example, stolen money can be
deducted from an employee’s pension payout (Jones 2021). Figure 1.1 below
highlights the fact that the investigator determines whether the misconduct is
a criminal offence or disciplinary transgression after an initial investigation. If
it is a criminal offence, company policy may dictate that the matter be handed
over to the SAPS or it may require that the investigator investigate the matter
and that once the investigation has been completed, it be handed over to the
SAPS to facilitate prosecution.
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FIGURE 1.1
In some companies, criminal matters and disciplinary transgressions are
dealt with by the same division and in others they are dealt with by a separate
division. We will discuss the investigation of disciplinary transgressions and
criminal offences by the same division.
1.3 CODES OF CONDUCT

Schedule 8 of the Labour Relations Acts stipulates that employers should
have a disciplinary code and that they should adopt disciplinary rules that set
standards for the conduct of employees (Abrams & Gross 2019). In the field of
labour relations, you will hear terms such as disciplinary process, misconduct,
transgressions, insubordination, and poor performance, to name but a few. It
is important to be familiar with these terms, to know what they mean and,
more importantly, what they do not mean. You may read up on these terms in
the LRA or at the site www.labourguide.co.za.
Before disciplinary proceedings are instituted, it is important to determine the

nature and seriousness of the misconduct. Paragraphs 3 (2) and (3) of Schedule
8 to the LRA provide the following:
Para 3(2) – “Efforts should be made to correct the employees’ behaviour

through a system of graduated disciplinary measures such as counsellings
and warnings” and
Para 3(3) – “Formal procedures do not have to be invoked every time a rule
is broken or a standard is not met. Informal advice and correction is the best
and most cost-effective way for an employer to deal with minor violations of
work discipline” (Disciplinary hearings [sa]).
8
For further reading on this topic, access the following site:
https://www.skillsportal.co.za/content/what-difference-between-formal-and-
informal-disciplinary-procedures
It is important to note that an offence may not be viewed in the same way.
While it is considered very serious misconduct for a security guard to sleep on
duty, an accountant who catches a nap at his desk during lunch time may not
necessarily be guilty of any misconduct.
Within a labour environment, labour unions and management often reach a

collective agreement. These agreements are powerful tools and codes of conduct
do not replace but support them (WorkLaw 2021) them. Sections (1) to (3) of
Schedule 8 of the Labour Relations Act states the following:
(1) “This code of good practice deals with some of the key aspects of dismissal
for reasons related to conduct and capacity. It is intentionally general. Each
case is unique, and departures from the norms established by this Code
may be justified in proper circumstances. For example, the number of em-
ployees employed in an establishment may warrant a different approach.
(2) This Act emphasises the primary of collective agreements. This Code is
not intended as a substitute for disciplinary codes and procedures where
these are the subject of collective agreements or the outcome of joint
decision-making by an employer and a work-place forum.
(3) The key principle in this Code is that employers and employees should treat
one another with mutual respect. A premium is placed on both employment
justice and the efficient operation of the business. While employees should
be protected from arbitrary action, employers are entitled to satisfactory
conduct and work performance from their employees.
REFLECTIVE TASK 1.2
Take a moment to think about codes of conduct. Reflect on different codes you
have experienced in your life. A code of honour at your school, a code of silence
between yourself and your best buddies or a code of conduct at your workplace.
Please visit the module site and proceed to Blogs. Access the blog titled
Unit 1: Code of Conduct.
Share your thoughts with fellow students on the following:
State whether you support or do not support the use of a code of conduct in
the workplace to guide employees in how they dress for work.
Read at least two other blogs and respond to at least one other blog.
In the next section, we will consider the concept of disciplinary misconduct

and will examine how it may manifest within a work environment.
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1.4 DISCIPLINARY MISCONDUCT

You may be wondering what a disciplinary transgression or misconduct is.
When you hear the term ‘discipline’, what is the first thing that comes to mind?
More often than not something negative. This is unfortunate, especially when
one considers that the word ’discipline’ is derived from the word ‘disciple’. A
disciple is a person who learns from a mentor, in other words, a student.
On the positive side, the purpose of discipline in a work environment is to create

a safe space in which everyone is treated equally and employees know exactly
what is expected of them. This facilitates productivity and efficiency (Strydom
2018). The Guidelines issued by the Commission for Conciliation, Mediation
and Arbitration (CCMA) highlights this aspect (Labourguide [sa]). Research
has shown that the relationship between management and employees in the
South African labour sector is, unfortunately, one of the poorest in the world
(Cillié in Strydom 2018). The number of labour disputes that lead to unrest
annually attest to this. Even our institutions of higher learning have not been
immune to it (Cowen 2017; Phagane 2019; Tlhabye 2020).
Labour relations in South Africa are regulated by the Labour Relations Act
(LRA 66 of 1995) along with a number of amendments made to this Act since
1995. Schedule 8 of the LRA – the Code of Good Practice Dismissals – provides
for the handling of disciplinary misconduct and dismissal in the work place
(CCMA 2021). While we will not be discussing the LRA, we will refer to some
sections in the Act. We have also posted the Act in its entirety under Additional
Resources. Feel free to download it onto the hard drive of your computer so
that you have it available as a reference document.
It is standard practice to familiarise new employees with the functioning of

the company. This occurs in a formal manner during induction / onboarding
or in a less formal manner through on-the-job training. What should happen,
is that new employees are informed of the different policies and procedures
of the company.
It is usually the responsibility of the Human Resources Department to make

sure that all employees have taken note of and understand the content of
policies and codes of conduct, whatever they may be called. It is wise to have
employees sign some document which certifies that they have been informed
and are familiar with the content of a code or policy and that it is filed in their
personnel files. This may be an important piece of evidence if the employee later
alleges that they were unaware of a rule or code. It is also important that the
policy of your organisation gives a clear description of the process that will be
followed to institute disciplinary action against an employee in a manner that
is procedurally fair. Furthermore, the code must also elaborate on the forms of
misconduct it considers as very serious, serious and less serious.
No employee may be dismissed on a charge of misconduct without a disciplinary

inquiry (Scheepers 2021). Be mindful though that misconduct and poor
performance are not the same thing.
10
1.5 POOR PERFORMANCE IS NOT MISCONDUCT

Disciplinary action is never taken against an employee for poor work performance.
Poor work performance may be due to a lack of training, qualifications or
experience, alcohol or drug addiction, outside influences, work-related stress,
ill-health or injury, or incompatibility. Poor performance does not relate to
behaviour in the workplace, but refers to the way in which an employee does
their work (The South African Labour Guide 2021b).
Poor performance is when an employee consistently or repeatedly fails to attain

the standard of work set by the employer in relation to quantity or quality of
output (The South African Labour Guide 2021b). The term ‘incapacity’ is used
within labour settings to describe poor performance. When a company employs
a person, it is implicit in the employment contract that employees will perform
their duties in accordance with reasonable, lawful and achievable performance
standards set by the employer. When an employee consistently fails to meet
these standards, such conduct is not because of ill-discipline but because of
poor performance. Employers must ensure that they follow the correct process
when dealing with such incidents (The South African Labour Guide 2021b).
1.6 MISCONDUCT
Misconduct is not an offence in terms of labour law. It is simply a heading under
which a group of offences have been listed as types of misconduct. Therefore,
during the course of your investigation, you may need to determine whether
the incident you are investigating amounts to misconduct or not. The following
serve as a guide.
The employee is always to blame for the misconduct. This person may not
have committed the transgression wilfully or deliberately, but is nevertheless
at fault. The employee either omitted to do something or did something
which they were not supposed to do. Such an act could be theft, fraud,
fighting, absenteeism, disclosing trade secrets, and the like.
The conduct of the employee or the failure of the employee to do something.
The employee has violated, for example, a rule, regulation, policy, procedure
or standard of behaviour required at the workplace.
The rule, regulation, policy, procedure or standard of behaviour was in
place before the employee’s transgression and the employee knew or could
reasonably have been expected to know about it.
The rule, regulation, policy, procedure or standard of behaviour was
consistently applied by the employer.
If these conditions are met, then there is certainly a case of misconduct to be

made (Discipline and dismissal 2021).
So, when you are tasked to investigate misconduct, there are several questions
you should ask yourself:
Has a specific rule or standard been disregarded?

If so, is the rule or standard both lawful and attainable?
If so, was the person who transgressed aware of the rule or standard?
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Could this person reasonably be expected to have been aware of it?

Has the company applied this rule or standard consistently? (Discipline
and dismissal 2021).
These are questions which you, as the investigator, will have to answer. The
answers to these questions also have to be included in the investigative report.
Although nobody is going to ask for them, they serve as a guide during your
investigation.
Only if the answer to all of these questions is yes, can you safely say that
misconduct has been identified. Only then should the allegation of misconduct
be formally investigated (Discipline and dismissal 2021). Misconduct may
be labelled as very serious misconduct, serious misconduct, or less serious
misconduct.
It should not be your responsibility to institute disciplinary proceedings against

the offending employee. For this reason, there should be a disciplinary officer
who, in all likelihood, would be from the HRD of the company. It is also not
your responsibility to decide on the disciplinary action, for instance, whether
the offender should receive a verbal or a written warning. You should, however,
make a recommendation to this effect, but the line manager or team manager
should decide on the sanction based on your report and recommendations.
Therefore, you should make sure that your report is based on facts and is backed
up with evidence in the form of statements and other (documentary) proof.
Depending on the seriousness of the misconduct and the circumstances under

which it occurred, the disciplinary action instituted by the company may include
any one of the following:
verbal warning
written warning
final written warning
suspension without pay (for a limited period)
demotion as an alternative to dismissal
dismissal (Discipline and dismissal 2021).
I want to reiterate, it will not be your responsibility to decide on the disciplinary

action. You should, however, make recommendations based on the investigation
you conducted.
Once you have completed your investigation into the alleged misconduct, you
have to compile an investigative report in which you present the findings of
your investigation and make recommendations in relation to the course of
action to be taken to address the matter. But how do you decide whether the
misconduct is less serious, serious or very serious?
12
1.7 LEVELS OF MISCONDUCT

Organisations should set clear parameters for very serious misconduct, serious
misconduct and less serious misconduct.
The following forms of misconduct should be considered very serious misconduct:
absent without leave for a short period

reporting late for duty
leaving the premises without authorisation
unauthorised possession of property belonging to the employer or somebody
else
use of liquor or narcotic drugs while on duty or being drunk on duty
intimidation, incitement or participating in a strike in contravention of the
LRA
insubordination or disobedience
failure to carry out a standing instruction
violence, threatened or actual
fraud or forgery of any document or information
gross negligence
possession and/or use of drugs
deliberately damaging the property of the employer
corruption, theft and fraud or attempts to commit it as well as making
confidential information known
absence from work without leave for a period longer than five days
conviction of a criminal offence and imprisonment without the option of
a fine
making private or confidential information known to another person/s or
third party/ies without the permission of the employer
viewing pornographic or offensive or discriminatory material whether in
printed or electronic format, or being in possession of pornographic material
the destruction or deletion of computer data without the permission of the
employer (Scheepers 2021)
Insubordination is the “refusal to obey a lawful and reasonable order” (The

South African Labour Guide 2021c).
The following conduct should be considered as serious misconduct:
sleeping when on duty

failing to report areas, structures or implements that are unsafe
failing to use tools or implements according to the standard procedures
extended absence
using insulting or indecent language
collecting donations or conducting business on the premises of the employer
without authorisation (such as selling Tupperware or similar products)
failure to report overtime worked without a valid reason (irrespective of an
undertaking to work overtime or not)
providing a service that is inadequate or poor
irreconcilable differences
when other people are injured at work as a result of rough play or negligence
during office hours
littering
wilfully giving false information
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a first offence of absenteeism during the probationary period, namely the

first six months of service
In the case of serious misconduct, an employee may receive a final written

warning for a first offence and could face dismissal for a second offence.
Misconduct that is deemed less serious may include the following:
“Depending on circumstances and the relationship between the employer

and employee, a written warning or final written warning could be given if
the relationship between the parties has deteriorated to such an extent that
they cannot work together any longer. The action taken must be fair in the
circumstances. The action for a first offence is a written warning and for a
second offence within the period of validity of the warning already given,
a final written warning. For a third offence the action is dismissal.
Failure to carry out a reasonable, legal instruction within the time required.
Failure to report sickness to the employer” (Scheepers 2021).
Scheepers (2021) further advises that if the misconduct was so serious that the
re-establishment of a trust relationship with the employee and reconciliation are
impossible, then it is advisable that the services of the employee be terminated.
1.8 THE INVESTIGATION OF MISCONDUCT
1.8.1 Gathering evidence

As discussed above, before an investigation into the alleged misconduct by an
employee can begin, there must be a formal complaint, preferably in writing.
It will then be your task to gather evidence to prove the allegation/s. For this
reason, it is important that you determine right at the outset what you will
investigate, in other words, what type of misconduct has been alleged. As a
result, you will have to gather the required evidence. While not all investigations
result in an official disciplinary hearing, it is advisable that you conduct your
investigation in such a manner that it will be acceptable should the case result
in a disciplinary hearing.
In a disciplinary hearing, the standard of proof is ‘on a balance of probability’.

This means the employee can be found guilty if the version that you present at
the hearing, backed up by evidence, is more probable than that of the employee
(Joubert 2010:33). For this reason, the quality of your evidence is far more
important than the quantity of your evidence.
When physical or other evidence needs to be collected, it is important to

maintain the integrity of the evidence. If an entry in a visitor’s register is pivotal
to a hearing, make a copy of the page and have it certified as a true copy. Seal
this copy in the presence of a witness and lock it in a safe or other receptacle
to which only you have access. Continuity of possession, as an investigative
principle, will not be dealt with in this module since you will learn about it in
FOR1501 Forensic Methods and Techniques. We will, however, consider the
implications of this principle when we discuss the investigation of specific
crimes or transgressions.
14
1.8.2 Obtaining statements

Witness statements are vital pieces of evidence in a disciplinary hearing. It is
crucial that statements are drafted in clear language with which the person
making the statement (deponent) is most comfortable. Since statements are
dealt with in detail in FOR1501 Forensic Methods and Techniques, we will
discuss only the main elements of statements in this module.
1.9 THE DISCIPLINARY PROCEDURE

While you will not be assessed on the disciplinary procedure, it is important
that you are aware of certain aspects relating to it. The LRA makes provi-
sion for the institution of disciplinary steps against employees against whom
misconduct is alleged. It is essential for due process that the person appointed
within the organisation to handle the disciplinary proceedings is competent
and conversant with the legislation. If an organisation fails to appoint and/or
train staff to deal with labour dispute issues in a fair and just manner, it will
be brought before a tribunal for unfair labour practices. Such a case may cost
an organisation a substantial sum of money.
At a disciplinary hearing, the following persons may be present:
the chairman
the complainant.
the respondent (accused)
the respondent’s representative.
an interpreter if required (The South African Labour Guide 2021a).
Although there are various versions, the following usually happens at a hearing:
The employer leads the evidence.

The employee is given an opportunity to respond.
The chairperson cross-examines the witnesses to clarify any uncertainties.
Finally, the chairperson decides whether the employee is guilty or not.
If the chairperson finds the employee guilty, he or she may ask both parties
to suggest the appropriate disciplinary steps.
The chairperson takes these suggestions into consideration. The final decision
about the disciplinary sanction rests with the chairperson.
The employee is informed of the disciplinary sanction.
The employee is informed of the right to appeal.
If there is no appeal procedure in place, the employee must be informed
of their right to approach the Commission for Conciliation, Mediation and
Arbitration (CCMA) or Bargaining Council (The South African Labour
Guide 2021a).
After the verdict has been given, the employee may present mitigating
circumstances and the employer may present aggravating circumstances.
Parties in disciplinary disputes may also approach the CCMA or the Bargaining
Council in which area of jurisdiction they reside within 30 days of the decision
(Disciplinary procedures for misconduct 2021).
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Should a disciplinary hearing be instituted, you will have to testify at the hearing
and present the evidence you collected. It is therefore crucial that whatever you
did during the course of your investigation was legal, otherwise you may be
the reason that the case is dismissed in favour of the accused.
The investigator who makes the recommendation for dismissal must consider
the following as recommended by the Code of Good Practice:
How serious the misconduct was.

For how long the employee has been working for the company, the personal
circumstances of the employee, and the employee’s record of disciplinary
conduct.
What the work of the employee entailed.
The circumstances surrounding the actual infringement (Disciplinary
procedures for misconduct 2021).
For further reading on this and related matters, click on the link below:
https://www.labourguide.co.za/procedural-fairness
1.10 OFF-SITE MISCONDUCT

In terms of the LRA, employers have the right to discipline employees for
work-related misconduct. However, Labour Courts will not tolerate poor
conduct by companies that do not follow their own disciplinary processes and
procedures and are unable to back up the dismissal of an employee with facts
and evidence relevant to the case at hand (Van Israelstam 2020).
But what about employee conduct that has nothing to do with the employer?
For instance, when employees neglect their children or act unbecomingly
towards patrons at a family restaurant. What if the employee was wearing a
workplace uniform, or branding that identified them as an employee of the
employer? This was the case recently of a well-known TV presenter and an
equally well-known insurance company (A4W news 2020). Before dismissing
an employee for off-site misconduct, companies should employ a labour lawyer
who will examine the merits of the case so that they can make an informed
decision (Van Israelstam in Van den Berg 2020).
1.11 SOCIAL MEDIA AND THE WORKPLACE

Owing to technology and the isolation brought on by COVID-19, a great number
of people work from home. Isolation has a detrimental effect on employees’
mental health and if they are not sensitised to it, isolation can lead to conduct
or behaviour that is out of the norm. Employers must be aware of it and ensure
that isolated employees have access to people or processes that can guide them
through difficult times.
Social media is one way in which people escape the realities of life. With various
platforms such as Facebook (that has approximately 2.01 billion users), Twitter
(with approximately 330 million users), Snapchat (that has approximately 249
million users), Telegram (with approximately 500 million active users) and
Tiktok (that has approximately 1.9 billion users), users are spoilt for choice. For
the most part, social platforms are a sound mechanism to connect with others
and escape from isolation.
16
But when employees say unpleasant things on digital platforms of either

the company they work for or other people in the company, it is a different
ball game. Simon and Scheepers (2019) contend that South African law is not
yet fully capable of dealing with such matters and is, for the most part, led
by precedents and decisions made by courts in the United Kingdom and the
procedures they follow. For this reason, employers must make sure that they
have a sound social media policy and that their employees are aware of it. It
is also vital that employees know what inappropriate conduct or behaviour on
social media entails.
Rathore (2020) maintains that 90% of companies consult the social media
profiles of prospective employees and that 79% of HR representatives in the
same survey have indicated that they denied employment to applicants owing
to inappropriate social media postings. Therefore, always ask yourself the
following before you post something: what does this post tell a potential
employer about me?
REFLECTIVE TASK 1.3
Take a moment to think about the fact that everything you post on social media
is a reflection of your character. Also, reflect on what you use social media for.
Please visit the module site and proceed to Blogs. Access the blog titled
Unit 1: Social media.
Are you an active social media user?

What is your favourite social media platform? Give reasons why you prefer
this platform.
If you were a prospective employer and you had to read your own last posting
on your favourite platform, would you hire the person who has posted it? You
do not have to answer this online, but think about your answer.
Wherever a man goes to dwell, his character goes with him.
Meaning: whether good or bad, the character of a person is an intimate part of that
person, going everywhere with them (African idioms 2021).
1.12 SUMMARY
In this study unit, we have discussed disciplinary misconduct in its broadest
sense. In the units that follow, we will consider other forms of misconduct.
In study unit 2, we will address miscellaneous issues related to criminal and
departmental investigations. We will consider aspects relating to the burden
and standard of proof; procedural and substantive fairness; the investigative
report; the five-questions rule; and the generic investigative process.
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SELF-ASSESSMENT
Time for self-assessment: approximately 20 minutes.
Take some time to make sure that you can answer the following questions:
Distinguish between very serious misconduct, serious misconduct and

misconduct.
Explain the difference between a disciplinary transgression and a criminal
offence.
Identify and define the different terms and concepts that are relevant to
disciplinary transgressions. Make notes for yourself so that the meaning
of each terms is clear.
Explain the link between company policy and the Labour Relations Act 66
of 1995.
18
2
ST U DY U NIT
Miscellaneous matters

105 minutes to complete the three reflective tasks and one self-assessment
activity at the end of the unit.
The purpose of this unit is to discuss some peripheral investigation issues that
need to be understood to conduct an effective investigation. These issues are
discussed together in this unit, but we will use them throughout this module.
It is important to be familiar with these terms and to use them in the correct
format and context.
In this unit, reflective tasks as well as practical tasks are given. I strongly advise
that you do as many of them as possible online since online collaboration with
fellow students enriches your learning experience. Feedback on the reflective
and practical tasks will only be given online.
Sugarcane is sweetest at its joint.
Meaning: Good and sweet things of life may appear difficult to achieve but in the
end, it is worth it. (@KaraboGerald 2021)
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In this unit, you will learn about the following:
civil, criminal and departmental investigations

the mandate to investigate
the standard of proof and the burden or onus of proof
procedural fairness and substantive fairness
the investigative report
the rule of law
the five-questions rule
the generic investigative process
At the end of this unit, you should be able to
explain the purpose of a letter of engagement

compile a standard investigative report according to a matrix
distinguish between a civil, criminal and departmental trial
differentiate between procedural and substantive fairness, and identify
unfair processes
identify the role-players in a civil, criminal and departmental trial
explain the required standard of proof for a criminal, civil and departmental
trial
explain the concept “rule of law” and its implications within the criminal
justice system
understand the role of the prosecutor
utilise the five-questions rule in an investigation
2.1 THE CRIMINAL JUSTICE SYSTEM IN SOUTH AFRICA

South Africa is a constitutional democracy. This means that the Constitution of
South Africa is the highest law of the land (South Africa 1996). It also implies that
we are bound to adhere to the rule of law and that no person is above the law.
The South African government is founded on a three-tier system comprising

of national, provincial and local government. The judiciary is independent. In
South Africa, the principle of cooperative governance is practiced. This means
that the various government departments have interconnected roles and func-
tions. Instead of working independently, the various government departments
cooperate or work together to achieve a common purpose (Structures and
functions 2020).
To facilitate liaison and cooperation, government departments have been

allocated to clusters, depending on the role or function of each. The Justice,
Crime Prevention and Security Cluster consists of the South African Police
Service, the Justice Department and the Department of Correctional Services
(Structures and functions 2020). These three departments are the main
stakeholders of this cluster (Joubert 2013:13). They have to address, among
other things, crime.
20
Crime occurs in any society. For this reason, there are processes in place to deal
with incidents of crime. As mentioned above, South Africa, as a constitutional
democracy, adheres to the rule of law. The rule of law “… is a principle of govern-
ance in which all persons, institutions and entities, public and private, including the
State itself, are accountable to laws that are publicly promulgated, equally enforced
and independently adjudicated, and which are consistent with international human
rights norms and standards” (United Nations and the rule of Law 2021).
FIGURE 2.1
(World Justice Project 2021)
From the above figure, it is clear that the rule of law makes enormous demands
on a justice system. The justice system is required to be accountable, transparent,
stable, fair, efficient and to respect human rights. The criminal justice system
(and all role-players in it) are to function within this framework.
Within the corporate space, the sustainability of any organisation or company

begins with the method of operation that the company employs to do business.
At a global level, organisations are encouraged to incorporate the Ten Principles
of the UN Global Compact “… into strategies, policies and procedures, and
establishing a culture of integrity…”. In this way, they “… are not only uphold-
ing their basic responsibilities to people and planet, but also setting the stage
for long-term success” (UNGC 2021).
REFLECTIVE TASK 2.1
Time for this activity: 20 to 30 minutes.
Take a moment to reflect on figure 2.1.
Unit 2: Rule of Law.
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Browse through your favourite newspaper (online or hardcopy) and find articles
that report on either the adherence to or the failure to adhere to any of the four
principles of the rule of law.
Write a short paragraph of no more than 100 words on the article and
mention which one of the four principles of the rule of law was illustrated
in the report.
Which of the four principles do you believe is the most important? Explain
why.
Read at least two other blogs and comment on at least one. Try to read
and comment on a blog that holds a different view. Remember to keep
your comments courteous, civil and kind.
The functioning of the criminal justice system in South Africa may be likened
to a process model. The SAPS are legislated to prevent crime (among other
things). When crime occurs, they have to conduct an investigation to identify,
trace and arrest the suspect. The suspect is then charged with the specific
crime and is referred to as the accused. This is where the criminal trial begins.
In a criminal trial, one of the primary role players is the prosecutor. The
Constitution provides that crime exists and that criminals need to be
apprehended, prosecuted and punished. For this reason, there is a prosecuting
authority tasked to institute prosecutions and a prosecutor is mandated by
the Constitution to prosecute the crime (Broughton 2020:3). Furthermore,
Broughton submits that the criminal trial is adversarial in South Africa. This
implies that a trial is a contest between the state, which is represented by the
prosecutor, and the defence, which represents the accused.
The role of the prosecutor comes with great responsibility as he is

vested with the power to charge and try accused… It is the function
of the prosecutor ‘… to place before a court what the prosecution
considers to be credible evidence relevant to what is alleged to be a
crime’ (Broughton 2020:3).
Prosecutors are the gatekeepers of the South African criminal justice system.
They evaluate the strength of the state’s case as well as the conduct of the
police. Moreover, prosecutors must present a case to court and protect the
interests of society.
2.2 DIFFERENT TRIBUNALS

In South Africa, there are three formal categories of tribunals or courts. These
are illustrated in figure 2.2 below. These categories are, first, criminal courts that
deal with matters stemming from criminal law (common and statutory law),
second, civil courts (where civil matters are decided) and, third, departmental
tribunals (where disciplinary hearings take place). Please note that we are not
making reference to the Ombudsman as part of this discussion.
22
FIGURE 2.2
As can be seen from figure 2.2 above, an offence will only be criminal if it
contravenes an existing piece of legislation, either common law or statutory
law. While customary law is recognised by our court system, we will not deal
with it in a corporate environment. Customary laws cannot be found in written
pieces of legislation since they are unwritten laws which apply to only certain
cultures or ethnic groups.
Criminal investigations are mostly undertaken by the SAPS. In some instances,

in-house or external private investigators conduct the entire investigation for
a company. Once the investigation has been completed, they open a criminal
case and hand over the evidence to the SAPS who takes the docket through
the criminal justice process. It is quite possible that there are more external
than in-house investigators in South Africa. External investigators often take
statements and open cases. Their reports are also used in criminal, civil and
disciplinary hearings. Insurance companies also conduct a large number of
investigations by following the same pattern as the one described above. The
only difference is that the Insurance Ombudsman’s decisions are usually
accepted (civil process). Few of these cases ever end up in court (Jones 2021).
The standard of proof in a criminal court is ‘beyond reasonable doubt’ (Gaqa

2018:6). For example, there may be some doubt about whether Mr X stole
money from company Y. The doubt must not be substantial. The state institutes
criminal proceedings against the accused and, because the state makes the
allegations, it is incumbent on the state to prove that what it alleges is true.
The purpose of a criminal trial is to determine the truth about what happened
(Joubert 2010:33).
There are various levels and types of courts in South Africa. For the purposes
of this discussion, I will mention only magistrate’s courts (which consist of the
lower and regional courts) and High Courts. You can read up on the different
courts at https://www.gov.za/about-government/judicial-system.
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Each of the nine provinces in South Africa have both lower and regional courts.
These function at either district or regional level. In some remote areas, one
will not find any permanent court and period courts are held there.
The lower courts deal with most crimes and the sentences and fines they can
impose are limited. They may impose fines of up to R120 000 and sentences of
up to three years’ imprisonment. The regional courts hear more serious crimes
such as armed robberies, since they can impose heavier sentences than the
lower courts. They may impose fines of up to R600 000 and prison sentences
up to 15 years. All other cases are heard in the High Court, which can impose
sentences and imprisonment in excess of that mentioned above.
If you offend, ask for a pardon; if you are offended, forgive. Meaning: This is as
simple as it sounds: If you upset someone, apologise to him or her. If someone up-
sets you, forgive him or her because what goes around, comes
around (@KaraboGerald: 2021).
2.3 IS JUSTICE A WESTERN CONCEPT?

You may ask whether justice is a western concept. And if you think it is, you
are wrong. Prior to the colonisation of Africa, traditional justice systems were
in place to deal with community-level disputes (United Nations 2016:12). In
South Africa, the term ‘lekgotla’ is often heard. It is a Tswana word and means
“a public place where consultation and judicial proceedings are conducted”
(Your dictionary 2021).
Historically, these traditional justice systems have functioned complementary

to the formal court system of the state although it was viewed as inferior to the
formal justice system (Bennet 2011:78-79). The traditional justice systems are
grounded in the traditions, customary practices and rules of communities, have
evolved over time and are called customary law. Traditional justice systems dif-
fer because each community has its own customary laws. It is noteworthy that
customary law may be either written or oral and decisions made during legal
sessions may or may not be recorded as jurisprudence (United Nations 2016:1).
The traditional justice systems of Sub-Saharan Africa are based on living

customary law, also known as oral traditions (Bennett 2011:78). This kind of
law differs from its modern counterpart in that it is dynamic and flexible. It
is affected by the circumstances of a particular case as well as evolving social
norms. Customary law was codified during the colonial era when the writing
down of customary law was encouraged. This practice is frowned upon by
some because, according to them, it inhibits the flexibility of customary law.
Others, on the other hand, approve of written customary law because codifi-
cations provides a measure of predictability in what the law requires. Bennett
(2011:79) submits that although customary law has always been viewed as
inferior to western law, indigenous jurisprudence has developed its own legal
speak with refence to ubuntu such as lekgotla, pitso and imbizo in statutes and
judgements. The African concept of ubuntu forms “…a cohesive, plural South
African legal culture” (Keep & Midgley 2007:30 in Bennett 2011:79) and is
characterised by reconciliation, compassion, sharing, responsibility, civility
24
and harmony. The spirit of traditional justice is reconciliatory and harmonious

(United Nations 2016:17) whereas the spirit of a western court is adversarial
and punitive. Harmonising these two approaches is still a work in progress.
In some cases, the seriousness of a corporate crime is outweighed by the loss

suffered by the company. While the Criminal Procedure Act, act 51 of 1977,
provides for the recovery of losses once the accused has been convicted, the
court may award only part of an amount. Consequently, a company may elect
to institute civil proceedings against an accused. In this manner, a company
is in more favourable position to recover the losses it suffered due to fraud or
financial mismanagement. In such matters, the aggrieved party is the plaintiff
and the person being sued is the defendant. Civil procedures are governed by
civil law and the purpose of any civil procedure is to put the plaintiff in the same
position as they were before the alleged incident occurred (Joubert 2010:33–34).
Departmental trials are instituted when the misconduct is of such a serious

nature that a trial is warranted. The Labour Relations Act makes provision
for departmental trials. In the event that an employee has not complied
with company policy, an investigation must be conducted. When an investigator
is tasked to undertake such an investigation, a specific mandate is given.
Upon completion of the investigation, an investigative report is drafted and
submitted to the relevant manager. The report contains recommendations based
on the findings resulting from the investigation. It is important to note that
not all cases of disciplinary misconduct warrant an investigation. When the
misconduct is not serious, the immediate supervisor may institute the relevant
disciplinary action against an offending employee. This must be done with
due regard for the audi alteram partem rule. It means that the supervisor must
hear the side of the alleged transgressor before making a finding. Failing to
do so would be in contravention of procedural fairness, which simply means
not following a fair procedure.
REFLECTIVE TASK 2.2
Take a moment to reflect on figure 2.2.
Unit 2: Tribunals.
List three key aspects of each type of tribunal.

List two questions you still have about any one of them.
Share one idea with your fellow students about any one of the three key
aspects of each type of tribunal.
Read at least two other blogs and comment on at least one. Try to read
and comment on a Blog that holds a different view than yours. Remember to
keep comments courteous, civil and kind.
Let us now consider the way in which a standard investigation is held within
a corporate space.
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2.4 THE INVESTIGATIVE CYCLE

In figure 2.3 below, we present a generic investigative cycle within a corporate
environment. The primary difference between investigations undertaken by
the SAPS and those undertaken outside the SAPS, is that the SAPS must
investigate each and every reported incident of crime, whether it is petty (for
instance, the theft of an apple) or serious (for instance, the theft of a large
amount of money). In an organisation, an investigation is conducted only on
the basis of a mandate or letter of intent.
FIGURE 2.3
(Benson, Horne & Jones 2015:30).
In a corporate environment, the success of the investigator usually depends on

the investigative report submitted after the investigation has been completed.
Not all investigations end up before a tribunal, but it is vital that you conduct
each investigation as if it were heading for a trial (Benson, Horne & Jones
2015:30–31).
2.5 INVESTIGATIVE MANDATE OR LETTER OF ENGAGEMENT

In a private or corporate environment, investigations are conducted according
to a mandate or framework. As a result, the investigation will be specific and
focused. In view of this, all investigations must be conducted within the scope
of the law, the applicable disciplinary codes and the mandate set by the manager
(or client). All rules of evidence are applicable in accordance with the Criminal
Procedure Act 51 of 1977 and the Constitution (specifically human rights).
26
You are usually tasked by your superiors to investigate a matter. This may be in
the form of a letter of engagement, sometimes delivered by e-mail, that explains
your mandate to do the investigation as well as the scope of the investigation.
It is extremely important that you do not undertake any form of investigation
unless you have been authorised to do so in writing by the person in your com-
pany authorised to do it. Regardless of whether you believe the complaint is
unjustified, you must conduct a thorough investigation. Within a corporate
environment, employees often become friends or are on friendly terms with
one another. If this is true for you and the alleged accused, it is crucial that
you recuse yourself from the investigation to avoid allegations of favouritism.
In some instances, you may be approached directly by a colleague who informs

you of misconduct or criminal conduct within the company. It is important to
obtain a statement from this person and to submit it to your superiors for a
decision to proceed. If you are informed to proceed, you are issued with such
an instruction (a mandate or letter of engagement) which sets out the scope
and focus of your investigation.
A person may lay a complaint that you believe does not warrant an investigation.
That decision is not yours to make; you must simply record the statement and
refer it to a higher authority. You may send a covering note with the statement
in which you make a recommendation, but you are not the final decision-
making authority.
In a corporate environment, you may be expected to draft an investigative report

in which you set out the pertinent matters in relation to the investigation you
conducted. We will now discuss this report.
2.6 INVESTIGATIVE REPORT

On completion of your investigation, you will submit a report containing
recommendations based on your findings. Sometimes management do not
want recommendations; only the findings. The HR or legal department will
make their own decisions. Since the outcome of your investigation may dam-
age the career of a colleague, you must ensure that your conduct is ethical and
legal at all times.
In different companies, investigative reports take on different formats. We have

provided you with a matrix in table 2.1 according to which you can compile
an investigative report for any type of in-house investigation. This format is
an amendment of the format used by the University of Sheffield (Confidential
Investigative Reporting 2014).
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TABLE 2.1
Matrix of an investigative report
CONFIDENTIAL INVESTIGATION REPORT- Department of

<NAME>
Allegation/Issue
Name/Designation of employee sub- <Name, Job title>

ject to investigation (if appropriate)
Name of complainant
(if appropriate)
Investigator(s) Name 1, Job title, Department

Name 2, Job title, Department (if
appropriate)
HR support/link Name, Job title, contact number/email
Background
Identify how the situation came about (based on the factual information
provided by the instigating manager); what actions have been taken prior to
the investigation; and what communications have taken place.
Provide brief details of the subject of the investigation, his or her employment
history and current role, and for how long he or she has occupied it, and so on.
Determine if an employee has been suspended before and, if so, when. Establish
whether he or she has been redeployed for the duration of the investigation
or if any changes were made to allow the investigation to take place, for
instance, whether the employee was stripped of his or her line management
or budget responsibilities, or taken off his or her usual duties but still kept on
in department, and so forth.
Executive summary (optional–delete if appropriate)
This may be necessary for complex investigations and should provide a brief
summary of the main findings/conclusions.
Remit of investigation
Define the remit of investigation, in other words, state the allegations or

concerns that need to be investigated. Compile a concise bullet-point list of all
allegations that will be expanded upon under “Findings”.
State the policy under which the investigation was carried out (eg, company
disciplinary policy, use of company resources, etc).
Investigation process
Explain how the investigation progressed, give reasons for decisions which were
made and indicate the direction the investigation took, including:
28
Give a brief description of the method(s) used to gather information.

Use the table template of Appendix 1 to record the interviews that were
conducted or the statements that were taken, when it was done, and indicate
their appendix number within the collection of evidence.
If the investigator has not interviewed all individuals suggested by the subject
of the investigation, the decision should be recorded in this section (including
the reasons, eg, character reference only).
Give a timetable of events and detail any delays in the investigation.
State the documents or evidence that were reviewed (Appendix 2: Record of
Evidence).
Findings
Provide a summary of the findings and observations:

Present the findings separately for each point, allegation or issue of concern,
by confirming the facts established by the investigation, identifying the
sequence of events, cross-referencing any documentation, and highlighting
any mitigating factors, for instance, a lack of procedural guidance, management
action or expected documentation or any other action or behaviour which may
have compounded or aggravated the situation.
Avoid long extracts from statements; quote directly from the statements only
where it is necessary. It is the investigator’s responsibility to analyse all
statements. Draw out corroborative evidence because interviewees are not
always articulate. Investigator should, therefore, use their own words to
concisely convey their findings.
If the evidence is inconclusive or if there is no evidence to substantiate an
allegation, say so. The instigating manager wants to know whether there is
any evidence to support the allegations. It is also the investigator’s responsibility
to explain how significant the evidence is. This should come across throughout
the report.
Note any specific actions that demonstrate a breach of policy or disregard for
standards of conduct or performance.
Refer to the agreed remit of investigation and check if you have covered all
the points.
Conclusion
NOTE: When reviewing the evidence, investigators need to demonstrate a

reasonable belief as to what happened, based on their assessment of the evidence.
The standard of proof for internal investigations and any subsequent disciplinary
hearing or grievance meeting is based on the balance of probabilities, in other
words, that on the basis of the evidence it was more probable than not that the
alleged misconduct was committed. Investigators are not required to demonstrate
beyond reasonable doubt, as in criminal investigations, but they need to act
reasonably on behalf of the employer.
For each allegation, concern or issue, provide an overall fact-based opinion on
a) whether there is any evidence to support the allegations and b) the strength
of the evidence.
Support the conclusions with the strongest evidence without repeating the text
in the main body of the report (where possible). Conclusions should be clear
and concise.
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Indicate to the reader the strengths of and weaknesses in the evidence.

Emphasise the importance of certain issues and state when evidence can be
open to a different interpretation.
Emphasise key facts that demonstrate a breach of a policy, a code of conduct,
financial regulations, service policies and procedures.
If there are special or mitigating circumstances or factors, ensure that they are
clearly stated in the conclusion. It is important to explain their significance.
Appendices
Chronology of events; witness statements; investigatory interview notes; job

documents; organisational structure; medical advice; and so on.
Signed by Investigatory Officer
Date
Appendix 1:
The following table gives the names of the people who provided state-
ments for this investigation.
Name Post Reason Date Appendix
Appendix 2: Record of Evidence
Date Item Appendix
Investigation statements
Supporting documentation
30
Make a copy of your report and annexures before you submit them in case the
originals are mysteriously lost. You must also reckon with threats. If the accused
threatens the investigation through interference of any kind, you will be well
advised to discuss the matter at the highest possible level so that the person is
suspended. The purpose of suspension is not to punish the person, but rather
to remove them from the workplace so that there is little chance of interference.
You can read further on the outcome of such a suspension at http://www.der-

ebus.org.za/employment-law-update-audi-alteram-partem-vis-a-vis-precau-
tionary-suspension/
2.7 PROCEDURAL FAIRNESS

Procedural fairness means that the procedure followed by the employer to
investigate the employee and to institute departmental proceedings is fair
(Du Toit 2021). If you disregard procedural fairness during your investigation,
it may harm the case when a disciplinary trial is instituted. One of the most
important aspects of procedural fairness is to hear the other party’s side. This
is referred to as the audi alteram partem rule (Rai 2019).
Since there might be a valid reason for the actions of the employee, hearing the
other side will prevent a loss of both time and valuable resources. Procedural
fairness has to do with constitutional issues regarding the processes involving the
institution in the disciplinary proceedings. Examples of procedural unfairness
are when an employee is dismissed without being informed of the nature of
the offence or when an employee was not given sufficient notification of the
disciplinary hearing to prepare their case. It is crucial that your company has
clear guidelines for the investigation and institution of disciplinary proceedings
in compliance with the LRA. Likewise, it is vital that you adhere to these
guidelines.
Larger companies have an HR division which is responsible for handling

all disciplinary misconduct. In smaller companies, on the other hand, one
person usually conducts all investigations in the company, both criminal and
disciplinary.
2.8 SUBSTANTIVE FAIRNESS

Substantive fairness has to do with the reason for the disciplinary action taken
against an employee. The department or employer must ensure that the reason
for instituting disciplinary action is fair, that is, there must be a valid reason for
instituting disciplinary action, for instance, because the employee is allegedly
guilty of misconduct. This is referred to as the concept of legality, which means
that a person can be convicted and punished only for conduct that was clearly
designated as an offence according to a law (or disciplinary regulation) that
existed at the time the offence was committed. Furthermore, the person must
be aware that what they did was contrary to the disciplinary code.
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You cannot institute disciplinary proceedings against people just because

you dislike them. An example of substantive unfairness is when a person is
dismissed for doing something for which another employee was merely fined
or given a warning. Another example is when an employee is dismissed for
doing something for which there is no provision for dismissal.
2.9 STANDARD OF PROOF

Standard of proof refers to the strength or amount of evidence that you must
bring in a case to secure a conviction or a positive result, in other words, win
the case. In civil matters, the standard of proof is much lower than in criminal
cases. To succeed in a civil case, you only need to prove that the plaintiff’s ver-
sion is more likely to be true than that of the defendant. This is referred to as
a ‘balance of probabilities’ (Manaka & Sikhavhakhavha 2021:1). Standard of
proof is also required in disciplinary matters. This illustrates the importance
of being able to determine what and how much you need to prove your case,
bearing in mind that the standard of proof in disciplinary matters is the same
as in civil cases.
In criminal matters you have to provide evidence of the person’s guilt beyond
reasonable doubt, meaning that the court can make no other finding than guilt
based on the evidence. If there is reasonable doubt, the accused will have the
benefit of the doubt and will be found not guilty (Joubert 2010:339). Joubert
(2013:365) argues as follows:
This means that the state must prove all facts in dispute beyond reason-
able doubt before the court will find the accused guilty of an offence. Proof
beyond reasonable doubt does not mean beyond all doubt, or proof without
the slightest doubt. A degree of doubt may exist, but it must not be sub-
stantial. Also note that the concept ’beyond reasonable doubt’ always has
a constant value in all cases. The seriousness of the offence therefore has
no influence on this standard.
2.10 BURDEN OR ONUS OF PROOF

There is a difference between the standard of proof and the burden of proof. We
have discussed the standard of proof in the previous paragraph. The burden of
proof refers to the side that must prove their case/claim in order to succeed. As
a rule, aggrieved parties must prove their case. If they fail to do so, there is no
case for the other party to answer. The maxim “he who alleges, must prove”
illustrates this legal principle (Joubert 2013:365).
2.11 THE FIVE-QUESTIONS RULE

In FOR1501, the five-questions rule was discussed “to assist investigators to
stay focused on the purpose of their investigation”. Ask yourself the following
five questions throughout your investigation:
What do I have? – This needs to be asked in every stage of the investigation

because it not only forces you to reflect on the evidence you have, but also
determines what you should do next. Your next step is to evaluate the evidence
32
you have and to ask yourself whether it is sufficient or whether you need to
obtain additional evidence. Because there is no prescribed way in which this has
to be done, you must decide on a plan of action that suits you. This is when the
systematic search for the truth begins and when it is important to have a plan.
What do I need? – This question forces you to think about the proof you need
and how you are going to obtain it to secure a conviction. It may require
additional statements or physical evidence. Outline what you need to do to
prove the case. Who are the witnesses? What documentary evidence do you
need? What authority do you have to get the statements or the documentary
evidence? If you do not have the authority to act outside your organisation,
you must find out who is able to assist you.
Where do I get it? – If you know what you need, you have to find out where or
from whom the evidence can be obtained.
How do I get it? – If you know the answers to the first three questions but cannot
answer this one, you need to think seriously about ways to obtain the required
evidence. It could mean asking for assistance, obtaining special legal authority
for a particular reason, or adopting a particular investigative technique.
What do I do with it? – Once you have the information or evidence you need,
what do you do with it? Remember the requirement of continuity of possession
discussed previously. Are you legally entitled to keep the evidence in safe
custody or must it be handed to the police for safekeeping? If it is in police
custody, how safe will it be? You also need to determine the evidential value
of the evidence. Ask yourself whether it will help to prove the case in court
and consider the burden of proof you have to satisfy.
REFLECTIVE TASK 2.3
Take a moment to reflect on the following terms:
burden of proof
rule of law
standard of proof
substantive fairness
procedural fairness
audi alteram partem rule
Unit 2: Terminology.
Explain in no more than 100 words how your understanding of these terms
have either stayed the same or changed.
Please share it with the rest of the group if you have additional explanations
or definitions which may be noteworthy.
Read at least two other blogs and comment on at least one.
FOR1502/133
He who does not know one thing, knows another.
Meaning: No one knows everything but everyone knows something.

(@KaraboGerald 2021)
2.12 SUMMARY
In this study unit, we discussed the peripheral issues of investigations. They
include the burden and standard of proof; procedural and substantive fairness;
the investigation report; the five-questions rule; and the generic investigation
process. From study unit 3 onwards, we will focus on disciplinary issues that
you may come across in the workplace. Study unit 3 deals with absenteeism.
SELF-ASSESSMENT
Time needed for self-assessment: approximately 30 minutes.
Make sure you have mastered the key concepts listed at the start of the study
unit by making brief notes so that the meaning of each term is clear to you.
Take some time to make sure that you can answer the following questions:
What is the purpose of a letter of engagement?

Can you differentiate between a civil, criminal and departmental trial?
Are you able to differentiate between procedural and substantive fairness
and can you identify non-compliance with these processes?
Who are the role-players in a civil, criminal and departmental trial?
Explain the required standard of proof for a criminal, civil and departmental
trial.
Explain the concept ‘rule of law’ and state what it implies in the criminal
justice system.
Explain the role of the prosecutor.
Will you be able to follow the five-questions rule in an investigation?
34
3
ST U DY U NIT
Absenteeism

110 minutes to complete the three activities and one self-assessment activity
at the end of the unit.
Ears that do not listen to advice accompany the head when it is chopped off.
Meaning: A person who does not heed advice will suffer the consequences
(Gold 2017).
In this study unit, we will consider what absenteeism is and appraise how
it may manifest within a work environment. We will contemplate some key
aspects that you must bear in mind when conducting an investigation into an
incident of absenteeism.
In this study unit, there are reflective as well as practical tasks. None of them
will be assessed. I strongly advise that you do as many of them as you are able
to online, since online collaboration with fellow students has proven to enrich
the overall learning experience. Feedback on the reflective and practical tasks
will only be given online.
FOR1502/135
In this study unit, you will learn about the following:
absenteeism
how absenteeism may manifest in a work environment
different terms and concepts that are relevant to the investigation of
absenteeism
the way to conduct an elementary investigation into an incident of absenteeism
the importance of clearly defined policy guidelines in relation to absenteeism
At the end of this study unit, you should be able to
identify conduct which amounts to absenteeism

conduct an elementary investigation into alleged absenteeism and make a
recommendation for further action based on the incident
identify and use the different terms and concepts that are relevant to the
investigation of absenteeism within an investigative report
explain the importance of clear company guidelines and their link to proving
misconduct
Any employer expects his employees to show up for work on time every
weekday. This does not have to be stipulated in the contract of employment.
In addition, an employer expects a certain output from an employee per day.
If an employee lazes around or spends too much time smoking outside or on
their mobile phone with social media, the desired output will not be attained
(Claassen 2021). Then the employee is in breach of contract!
However, it must be noted that during the normal functioning of an organisation,

employees need to take vacation leave or family responsibility leave when
children are sick. For such and other similar instances, there must be a standard
procedure. This must be clearly spelt out in the policy that deals with employee
conduct. One cannot act against a person for absenteeism if the principle is not
addressed in company policy.
3.1 ABSENTEEISM
Absenteeism is closely associated with poor timekeeping and the incapacity
to do work due to some medical condition (Griesel 2021). But in this unit, we
will deal with absenteeism as a form of disciplinary misconduct, which is, in
some instances, viewed as serious misconduct even if the person is absent
for just one day (Rapuleng 2021). We find that employees spend more and
more time chatting on social media, surfing the internet and playing games.
Technically, they don’t do anything wrong, but if you add up the time they
spent not working, it amounts to several hours. If you see employees sitting
behind their computers, you assume that they are working while, in fact, they
are not (Jones 2021).
Absent does not only mean not being at work. According to Claassen (2021),
absent may also mean:
36
Absenteeism
“Arriving late (or poor timekeeping if you like. It is still absent as long as
the employee is not at work)
Leaving early (again, if you like, poor timekeeping. It is still absent if he is
not at work).
Extended tea or lunch breaks – the employee is not at the workstation, and
therefore absent.
Attending to private business during working hours – the employee is at
work, but is not attending to his/her duties in terms of the employment
contract – and is therefore absent.
Extended toilet breaks – same as extended lunch or tea breaks.
Feigned illness – thus giving rise to unnecessary visits to the on-site clinic,
or take time off to ‘visit the doctor’ – which they never do, because they
don’t need a medical certificate for less than 2 days off.
Undue length of time in fetching or carrying (tools from the tool room, for
example, or drawings from the drawing office, etc)
Other unexplained absences from the workstation or from the premises”.
Therefore, when you begin your investigation, it is important that you determine
in which category the allegation falls so that you direct your investigation in
the right direction.
3.2 LEGISLATION, COMPANY POLICY AND CODES OF

CONDUCT
In study unit 1, we have discussed policies. Whereas legislation applies to all
citizens, company policies apply only to employees of the company that drafted
them. Company polices may never be in conflict with legislation (common or
statutory law), unless the conditions set out in the policy are more favourable
than that which is recommended by legislation. The Basic Conditions of Em-
ployment Act 75 of 1997 stipulates that an employee is entitled to a minimum
of 15 days’ paid leave per annum. So, if the company for which you work al-
lows you 25 days’ paid leave per annum, this is fine. It may not give you only
14 days’ paid leave per year (Claassen 2021). Several examples of policies are
given on the module site under Additional Resources. Take a moment to visit
the site and view them.
3.1
Browse through the policies and other documents on the module site under
Additional Resources. Locate the document titled: Suggested schedule of of-
fences. Proceed to the Discussion Forum: Section 1 Unit 3. Under the forum
titled Activity 3.1: Suggested offence, answer the following questions:
Using the facts of the case study under para 3.3 below, select the offence/s
Thabo may be charged with and provide reason/s for your answer.
If this was Thabo’s first offence, what sanction (punishment) may he receive?
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Codes of conduct are similar to policies but less formal and stringent than
policies. A code refers to a code of conduct or a code of good practice. Codes
are designed to ensure voluntary compliance from employees with the mini-
mum fuss.
Not only should disciplinary action be taken as soon as possible after an

incident has been reported, but also the nature of the absenteeism should be
noted (in some instances the employee could face dismissal even after the
first offence). As mentioned in study unit 1, it is important that the company
or organisation you work for has some policy or code of conduct that deals
with matters of discipline and workplace conduct. This policy must be in line
with the LRA and should not deviate from the guidelines in the Act. It is also
essential that the company has a policy that sets out how disciplinary issues
are to be dealt with.
As an investigator, you will have to be familiar with the policy that addresses
disciplinary issues and should ensure that you have the latest version in your
possession as it may have been updated. It is also wise to get a copy of the
employee’s employment contract so that you know what the conditions of
employment are.
The Unisa Employee Disciplinary Policy (Unisa 2013:4) explains absenteeism

and reporting late for duty or leaving early as follows:
Once-off incidents are usually not problematic, but when incidents follow a
recurring pattern, the employer should view the matter in a serious light and
take action against the offending employee. Failure to act may send the wrong
message and lead to more disciplinary problems.
Employees may be disciplined for behaving in a manner that they know or

should have known was unacceptable to the company (South Africa 2021).
A standard disciplinary code should provide for a number of sanctions that
include a verbal warning, a written warning, a final written warning and
dismissal. Let us now consider how an investigation is to be conducted based
on the case study below.
3.3 INVESTIGATION
Please consider the case study below. Your task is to investigate a complaint
of absenteeism.
38
Absenteeism
CASE STUDY
On a particular Monday, Thabo didn’t go to work. He did not call the administrative
officer, Ms Smit, to inform her of his absence. The following day, he was back on
duty. His supervisor, Karabo, wanted to know the reason for his absence and Thabo
explained that he had been too sick to phone. Karabo was not satisfied and requested
that the matter be investigated.
You are tasked with the investigation of Thabo’s absence from work. As a starting point,
obtain evidence of the departmental regulation for timekeeping (working hours and
procedures for sick leave) and of Thabo’s absence. This is usually obtained from the
human resources section. It is advisable to attach a copy of the policy as an annexure
to the statement.
A statement should then be obtained from the person who is responsible for the
attendance register or other timekeeping system. This person has to declare that they
are responsible for keeping the attendance register (or other system) and have to indicate
the day on which Thabo did not report for duty. Obtain a copy of the relevant pages
of the attendance register as evidence and attach it as an annexure to the statement.
Take note that uncertified copies of documents are acceptable, except when their contents
or authenticity is questioned. Private investigators usually do not take statements; they
conduct interviews and record them (more often than not by phone). The interviews
are discussed in their investigation reports. The reason for this is that time is money.
If you have to formally interview every possible witness and take their statements, the
duration of an investigation can be two to ten times longer. Since external investigators
are paid by the hour, a simple investigation can turn out to be quite expensive. In
addition, in-house investigators usually do not have time for it because they are under
pressure to submit a report and conduct other investigations at the same time. In the
private sector, time and money is a big consideration and unlike police members, these
investigators cannot take large numbers of statements (Jones 2021).
If a biometric system is used for reporting on and off duty (by either an iris scan
or a finger or thumb print), a printout of attendance on the particular day must be
obtained along with a statement from the system manager who is responsible for
data verification as to the authenticity of the information contained in the printout
of attendance on the particular day.
Obtain a statement from Ms Smit, the administrative clerk. She will have to state that
Thabo did not phone to inform her that he was sick, as required by policy.
Now you need to obtain proof that Thabo was informed of the required working hours,
sick leave and procedures in case of sick leave. Your task is to prove that Thabo was
aware of this, either by asking him (which is the easiest way) or by providing a signed
copy of the employment contract. In the latter case, you have to prove that Thabo
signed the contract. The easiest way to verify if it is his signature is to ask him. The
alternative is to obtain statements from the persons who signed as witnesses to the
employment contract. You may even consider asking co-workers who know Thabo’s
signature. As a last resort (because this will cost the company money), you will hire
the services of a handwriting expert to verify the authenticity of the signature on the
contract. Often external experts can be hired for a variety of services.
It is also possible to prove that a person knew the contents of a disciplinary code by
proving that the person attended an induction course (onboarding) during which the
code was discussed. If timekeeping procedures are in place, such as an attendance
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register or some other mechanism which the employee signed in the past, it may be
assumed that they were aware of its existence. If the employer has a code of good
practice, one can usually assume that the employee was aware of the disciplinary code.
In the simplest terms, you are to provide a report to the person who tasked you to
conduct the investigation to enable that person to make an informed decision about the
best way to handle the situation. Since you deal with a persons’ professional reputation,
it is crucial that you conduct each investigation (no matter how trivial it may seem)
with the greatest regard for the law and the human dignity of those involved.
Also remember that, during your investigation, you may discover things about
that person that others may not know. Such knowledge has to remain private and
confidential. Making it public may lead to the company instituting disciplinary steps
against you. Assume your responsibilities as an investigator with due regard for the
dignity of those who you investigate. Treat everyone equally, regardless of their position.
If absenteeism is attributed to alcohol or drug abuse, the onus is on the employer to,
assist the employee through remedial measures before instituting disciplinary steps
against them.
When a bird builds its nest, it uses the feathers of other birds.
Meaning: we have to cooperate with other people to get anything done in life
(Khaya volunteer projects 2021).
3.4 FREQUENTLY ASKED QUESTIONS

Sometimes, work place absence is not cut and dried. Claassen (2021) discusses
some practical issues in relation to absenteeism from a legal perspective. Below
is an extract of this discussion. Read through the examples below and proceed
to activity 3.2 and answer the questions:
Example 1:
“Q: If an employee arrives for work after the shift has started, can I send him
home without pay for that day?
A: Even though the employee is late, he has still tendered his services and
to send him home without pay could be viewed as imposing the sanction of
suspension without pay without a disciplinary hearing. This could land you
in hot water. However, what if the shift begins at 7 am and he arrives at 1 pm?
Can he then say ‘I have tendered my services therefore you can’t send me
home without pay?’
Certainly not. It is best that you build into the employment contract a deadline
– for example, ‘Should you arrive at work later than 1 hour after commence-
ment of the shift, you will be sent home and you will forfeit that days wages.
In all instances of late coming, the principle of no work, no pay shall apply.’
Then, should the instance arise, you can listen to the reasons advanced for the
late coming, and make a decision in terms of your disciplinary procedures.”
40
Absenteeism
In this instance, it is very important that the disciplinary procedures stipulate

working hours and make provision for late coming and how to handle such
events. Remember that many employees make use of public transport and
when bus and taxi drivers go on strike, great numbers of people are stranded,
without other means of getting to work. Make sure that your company policy
provides for such practical events.
Example 2:
“Q: How do we handle the employee who is always late, but always has a real
and valid excuse?
A: A real and valid acceptable excuse does not mean that the late coming is
acceptable. Although you may be sympathetic to the circumstances and may
even try to assist in some way, the ultimate responsibility to get to work on
time rests with the employee. It is their problem – not yours. If the employee
cannot carry out this contractual obligation – i.e., to be at work on time, then
they may be in line to become and ex-employee.”
Example 3:
“Q: What if an employee requests to work his lunch break and leave early.
A: Strictly speaking, you cannot allow this because you would be breaking
the law.
The law requires that the employee have at least a 30 minute break after 5
hours’ work. “
Example 4:
“Q: What if the employee arrives at work but is clearly unfit for duty – perhaps
with influenza, for example:
A: It is clear from legislation that the employee is not only required to present
himself for work – he is also required to present himself in a fit condition to
do that work.
Therefore, if he comes to work too sick to do the job, or smelling of liquor or

clearly under the influence of liquor, he should be sent home. Obviously, dis-
ciplinary procedures can be invoked where required.”
Example 5:
Q: What of the employee clocking someone else’s card for him with the knowl-
edge of the other person who is absent?
A: Clearly, this is fraud and must be handled accordingly. Both parties would
be subject to disciplinary investigation, and where justified, disciplinary action
and sanction.”
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3.2
Time for this activity: 20 minutes.
Once you have read through the legal examples in paragraph 3.4, Frequently
Asked Questions, take a moment to reflect on the implication of each example.
Proceed to the discussion forum: Section 1 Unit 3. Under the forum titled
Activity 3.2: Frequently Asked Questions, do the following:
Select an example from the list.

Explain to your fellow students whether you would recommend formal
disciplinary procedures against the alleged transgressor. Provide reasons
for your answer.
3.3
Unit 3: Social justice and investigation of absenteeism.
1. Which elements of social justice (access to resources, equity, human rights,

diversity and participation) can be included your investigation? Share your
strategy in no more than 100 words.
Read two other blogs and enjoy the creativity of your fellow students.
3.5 SUMMARY
In this study unit, we discussed absenteeism as a form of misconduct within
the South African labour environment. We considered how this may mani-
fest and how to address the issue from an investigative perspective. In study
unit 4, we will discuss nepotism.
42
Absenteeism
The quail waits for the stick.
Meaning: the lazy person loitering around is going to be punished (for a lazy
person, the worst punishment is having to do some work!)
(Khaya volunteer projects 2020).
SELF-ASSESSMENT
Time for self-assessment: 30 minutes.
Make sure you have mastered the key concepts that were listed at the start of
this study unit by making brief notes so that the meaning of each term is clear.
Ensure that you have achieved each of the outcomes for the study unit.
Are you able to identify conduct which amounts to absenteeism in the

workplace?
Are you able to conduct an elementary investigation into alleged absenteeism
and make a recommendation for further action based on the incident?
Are you able to identify the different terms and concepts relevant to the
investigation of absenteeism in a workplace setting?
Do you understand the importance of company guidelines and their value
in proving misconduct in a workplace setting?
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44
4
ST U DY U NIT
Nepotism

130 minutes to complete the three activities tasks and one self-assessment
activity at the end of the unit
In this study unit, we will learn what nepotism is and how it may manifest
within a work environment. We will consider some key aspects that you must
bear in mind when conducting an investigation into an allegation of nepotism.
In this study unit, you will come across reflective tasks as well as practical tasks.
I strongly advise that you do as many of them as you are able to online since
online collaboration with fellow students enriches the learning experience.
Feedback on the reflective and practical tasks will only be given online.
You begin with the meal before the water is boiling!
Meaning: You’re too impatient and do things the wrong way round (seriously, does
anyone like raw potatoes?) (Khaya volunteer projects 2020).
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the origin of the concept of nepotism

different definitions of nepotism
the different terms and concepts that are often associated with and related
to nepotism
the negative impact of nepotism on the morale of an organisation
the importance of anti-nepotism policies
At the end of this study unit, you will be able to
identify conduct that amounts to nepotism

conduct an elementary investigation into an alleged incident of nepotism
draft a report that details the investigation and findings, and makes a
recommendation for further action based on the investigation
investigation of nepotism in an investigative report
explain the importance of company guidelines and their value in the
prevention of nepotism
4.1 CONCEPT DEFINITIONS

Various definitions of nepotism are given in books and journals that deal with
human resources. They have several ideas in common such as inequality,
showing favouritism and unfairness. The apparent positive aspects of nepo-
tism, especially within industries or businesses with strong family ties, are
discussed in literature. But the negatives outweigh the positives (Career advice
2021). Let us now consider some of the concepts associated with nepotism and
their meaning.
4.1.1 Nepotism
Nepotism is giving a job or other benefits within business or politics (or similar
environments) to a relative despite the apparent unsuitability of the person for
the appointment. Nepotism has some relatives too (no pun intended). These
are cronyism, patronage, favouritism and cadre deployment (Erasmus 2014).
4.1.2 Cronyism
Cronyism is a close relative of nepotism because the person who receives the
appointment or undue benefit is a friend and not a direct family member.
46
Nepotism
4.1.3 Patronage
Patronage occurs when a powerful person (such as the MD or the CEO of
a company) or “… a committee of such figures” (Brunette 2017) makes sure that
people who support them receive appointments or contracts. This is rampant
in political campaigns and political parties (Erasmus 2014) and, as will be seen
from the discussion below, institutions of higher education are not immune
to this scourge.
4.1.4 Favouritism
Hrab (2019) explains that favouritism in the workplace is when a person is
promoted over the heads of others at a company for other reasons than their
job performance. Mhatre, Riggio and Riggio (2012:175) define nepotism as
the “unfair display of favouritism by a leadership source (i.e. an individual
leader, a group, or an organisation) that are based on kinship”. They explain
that these displays of favour can manifest overtly or covertly. Overt displays
of favouritism occur when a close relative is hired because of kinship, whereas
covert displays occur when preferred resources are allocated to those projects
in which the leader’s relative is involved. Favouritism may thus be displayed
to not only family members in a work place, but also people connected with
to the decision-maker outside of the scope of the work environment. Some
authors define nepotism as favouritism to relatives and cronyism as favourit-
ism to friends (Vittee 2013).
4.1.5 Cadre deployment

The last concept we will briefly touch on is cadre deployment. This occurs
when loyal members of a certain group or political party are appointed in an
independent body or government institution so that the group or political
party can control the institution or body and further its own objectives, ideals,
principles or ideologies (Erasmus 2014: Maja 2020). This person (called the
cadre) has to put the group or party first in all their decisions and is accountable
to that group or party and not to the institution. The cadre is expected to be
more loyal to the group or party than to the rule of law, the Constitution or
the public. Because it is similar to cronyism and patronage, it is often confused
with these two terms (Erasmus 2014).
In brief, nepotism is the undeserving or unfair appointment of relatives or

friends to high positions. Although the listed definitions focus primarily on
the appointment of undeserving relatives, some authors view nepotism as a
form of corruption that includes not only employment appointments but also
business contracts.
4.2 ORIGIN OF NEPOTISM

The origin of the word “nepotism” can be traced as far back as the 1600s. Its
origin is said to reside in the papacy. Newly elected popes often appointed
family members, especially their nephews, in high ecclesiastical positions, thus
surrounding themselves with loyal kinsmen. The word nepo means “nephew”
in Italian. The “-ism” part of the word means “… a distinctive doctrine, theory,
system or practice”. This results in the word “nepotism” (Muchinsky 2012:43).
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Waskey (2009:1198) has a different explanation for the origin of the term
and alleges that the word is derived from the Latin word nepos, which means
either grandchild or nephew. According to Waskey, the practice of giving
preferential treatment to nephews occurred in the late Middle Ages. Nephews
were appointed in high ecclesiastical positions because popes and bishops took
the vow of chastity. Because they never married, they did not have sons of their
own and, therefore, a nephew acted as a substitute for a son (Waskey 2009:1198).
Despite different views of the origin of the term, nepotism is the appointment
of a relative. As will be seen from the discussion below, this practice has
evolved and can include family members other than nephews and even friends.
Some companies distinguish between two groups: nepotism involves relatives
and favouritism and cronyism involve friends.
4.3 DISCUSSION
“Having served for nearly a decade in local government, I can pronounce
without any fear or favour that well-educated, skilled, experienced, brilliant
and talented employees are overlooked in favour of unqualified, politically
connected deployees when appointments and promotions to senior management
positions are made in government. This is a form of corruption and must be
stopped.” (Dlanjwa 2020).
Nepotism and its variants cronyism, favouritism, patronage and cadre

deployment, are universal phenomena (Arasli, Bavik & Ekiz 2006; Savage
2019; Wated & Sanchez 2012:199). Anti-corruption is the tenth of the UNGC
principles. Principle 10 stipulates that entities such as businesses and companies,
should intentionally avoid all forms of corruption, which includes extortion
and bribery (UNGC 2017).
In South Africa, media reports about alleged incidents of nepotism and other
irregularities such as corruption and malfeasance, in both the public and the
private sector appear almost daily (Gedye 2012; Newham 2014; The Economist
2011; Transparency International 2020). Unfortunately, it seems as if these
incidents are more prolific within the public sector (The Economist 2011). Savage
(2019) claims that favouring relatives and friends hampers the development of
Africa. While numerous people are of the view that the worst crime in Africa
is corruption, the damage caused by nepotism, which is just as bad for the
economy, is often underestimated.
While we have briefly referred to other concepts than nepotism in our preceding
discussions, it is important to note that the focus of this unit is nepotism.
Nepotism is a dangerous practice as it has a negative impact on the workforce.

People notice when family members or friends are appointed to comfortable
positions in the company or organisation and perceive it as unfair. This may
have one of two direct effects, the first is that people will complain and be
unproductive, and the second is that good workers will leave for better prospects
outside the company (Hero 2008; Wated & Sanchez 2012:199). According
to Yeung (2019), the practice of nepotism also has the potential to stunt the
growth of a business. It erodes the leadership skills of the company and may
leave it open to labour disputes. Furthermore, this practice may also lead to
the possibility of corrupt practices, and authoritarian leadership (Yeung 2019).
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Nepotism
In some cultures, the practice of nepotism is common practice. It is based

on the understanding that ties of blood create a responsibility towards one’s
kinsfolk. Thus, when you are appointed to a position of power, you are expected
to take care of your own. The practice, while appearing to be a compassionate
one, results in the appointment of people to positions for which they are
totally unqualified. This stirs up discontent among people around them since
these people, more often than not, are expected to pick up the slack (Waskey
2009:1198). While the practice of nepotism is universal, it is more noticeable
in Third-World countries (Waskey 2009:1198; Wated & Sanchez 2012:201).
Nepotism does not relate to only the appointment of friends and family. It
goes much further because it may also involve contracts in the procurement
process. Where preferential awarding of contracts takes place or where there
is a deviation from policies and procedures, there will always be nepotism.
Nepotism is in direct contrast to the principle of equality enshrined in the

Constitution. Since nepotism is favouritism shown to the friends or family
members of a person in power, it is in direct contravention of the Constitution.
In the Explanatory manual on the Code of Conduct for the Public Service, the Public
Service Commission (2002:26–27) states explicitly that the practice of nepotism
or favouritism is unacceptable. This document can be found under ‘Additional
Resources’ on the myUnisa website for this module.
Erasmus (2014) mentions that of all reports received by Corruption Watch, 9%

deals with irregularities relating to employment and specifically nepotism that
involves friends and family.
The definition of corruption in section 3 of the Prevention and Combating of

Corrupt Activities Act 12 of 2004, refers to “directly or indirectly” accepting
or offering a benefit to another person to act in a biased way that amounts to
an abuse of a position of authority (author’s emphasis).
The Act is even more specific when it refers, in Section 10, to any person –
(a) who is a party to an employment relationship and who, directly or

indirectly, accepts or agrees or offers to accept from any other person
any unauthorized gratification, whether for the benefit of that person
or for the benefit of another person; or
(b) who, directly or indirectly, gives or agrees or offers to give to any person
who is a party to an employment relationship any unauthorized gratifi-
cation, whether for the benefit of that party or for the benefit of another
person, in respect of that party doing any act in relation to the exercise,
carrying out or performance of that party’s powers, duties or functions
within the scope of that party’s employment relationship, is guilty of
an offence of receiving or offering an unauthorized gratification.”
Note that this explanation in Section 10 is about what was previously known
as bribery. Nepotism is understood to be a form of corrupt practice, not only
in South Africa but also internationally (Aka 2005:650; Combatting corrup-
tion in government 2014). Nepotism is closely related to corruption. It is an
abuse of power.
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4.1
Once you have read through paragraph 4.1 above, proceed to the discussion
forum: Section 1 Unit 4. On the forum titled Activity 4.1: Which misconduct
is it?, answer the following questions:
Search through media reports of the past month and see if you can find
reports on allegations of either nepotism or one of its variants.
Share the link with the rest of the participants on the site.
Explain where this misconduct occurred (public or private enterprise).
Identify the term ‘nepotism’ and its variants in the article.
Do you think the reporter has accurately named the misconduct? If the
article is about alleged nepotism, does the content prove it or is it rather
cronyism or something else?
Briefly discuss the type of misconduct (from the list in paragraph 4.1) and
provide reasons for your answer.
He who will swallow ‘udala’ seed must consider the size of his stomach.
Meaning: ‘Udala’ seed is an apple seed. It is never digested in the stomach. This
proverb means that you must always think about all possible consequences
of your actions (Legit 2021).
CASE STUDY
Luvuyo Mbetha, who is a head of department at Sechabe Medical Suppliers, has

requested Human Resources to advertise the position of a secretary since his secretary
left the firm for personal reasons. It was whispered that she resigned because she could
no longer stand the harassment by Reg Abrahams. But these were merely rumours.
HR followed all the relevant policies and five shortlisted candidates were interviewed
by the appointment committee. Reg Abrahams sat in on all the interviews on behalf
of the Recruitment and Appointment manager. He also acted as chairperson of the
appointment committee. Dina Mokhubela was by far the best candidate for the position,
having the relevant work experience and academic qualifications. She was a soft-spoken
African lady. The candidate who ranked fifth, Ms Lindsey Naicker, was outspoken
and very attractive. She had far less experience than any of the other candidates,
and while she did have an honours degree, it was not in office administration as was
required for the position.
Reg strongly supported the appointment of Ms Naicker. He used his position of

authority to intimidate and convince the majority of the committee to side with him
and when the issue came down to a vote, Ms Naicker was the preferred candidate.
She was soon appointed. Ms Polly Shore took minutes of the proceedings as well as
the final recommendation of the appointment panel.
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Nepotism
Melanie Smit withdrew from the selection committee since she knew two of the
candidates and believed that it would constitute a conflict of interest. Because she was
astounded by the outcome of the interviews, she went to see Mr Peterson, the head
of Risk and Compliance, and informed him of her suspicion. She suspected that Reg
used his position to have Ms Naicker appointed because she was good-looking and
had a very shapely figure, not because she was the best candidate.
She also knew that Reg was often invited to play golf at the Mboya Golf Club by Ms
Naicker’s father, Dr Maharaj Naicker. Dr Naicker is a high-profile medical doctor
and major shareholder in Khanyani Private Hospital.
You are tasked by the head of Risk and Compliance, Mr Peterson, to investigate the
allegation.
4.4 INVESTIGATION
Base your investigation on the case study above.
No investigation can start without information. Your immediate supervisor,

who gave you this investigation, is usually the one who informs you of the
scope of your investigation. Once you have determined what the complaint is
all about, for example, employment, you must obtain a copy of the HR policy
on recruitment and appointment. This will be the primary document against
which all of the activities must be measured. Remember to obtain the policy
on nepotism (if this is not included in the HR Policy on Recruitment and
Appointment) and look at the wording of the policy carefully, particularly at the
terminology used for conduct that amounts to nepotism, a conflict of interest
and a close personal relationship. You will then be able to find the points that
you will have to cover in an attempt to prove the matter. In the same manner
that the SAPS must prove all the elements of a crime to secure a conviction,
you must break down your policy into elements and ensure that you are able
to prove all of them.
Then you need to obtain a copy of the advertisement which advertised the
position and listed the requirements for the post.
Next, access the minutes of the proceedings. You must obtain a copy of the
records of the appointment committee to which should be attached the minutes
of the proceedings of the day when the candidates were shortlisted. This record
must contain the reason/s that specific candidates were or were not short-listed.
The CVs of all the short-listed candidates must be attached. It would also be
advisable to approach each member of the appointment committee individually
and obtain a statement from each about the events during the short-listing
process. Since some time may already have passed, it is vital that you do this
as soon as possible. This will help you to determine if there were any blatant
irregularities during the short-listing process.
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Following this, you need to obtain a copy of the minutes of the interviewing
panel’s meeting. A secretary always records the discussions and the individual
scores that the members of the panel have given to each short-listed candidate.
Panel members are usually asked to hand their scoring sheets to the secretary for
record purposes and they must also form part of your report. More often than
not, secretaries make audio recordings to aid them in drafting the minutes of
the proceedings. Obtain a digital copy of this recording and have it transcribed
verbatim. You may ask the secretary to assist in the identification of the speakers
if this is not clear from the audio recording. Take a statement from the secretary
about what the panel decided based on the scores each candidate received and
who was eventually recommended for the post.
If nepotism is involved, determine whether the official suspected of the nepotism

is in any way related to the applicant or has in made any recommendation that
the applicant be appointed. You must act swiftly because such documents have
a nasty habit of disappearing as soon as word of the investigation gets out.
You should now be in a position to draft your investigative report and submit
it to Mr Peterson for further action.
4.5 OTHER POSSIBILE MANIFESTATIONS OF NEPOTISM

It could also happen that the person who applied for the position has bribed an
official to make the appointment or that the official has demanded payment for
the appointment. In such cases, proof of the bribe payment must be obtained if
possible. Bribes are usually paid in cash, which makes them difficult to prove.
As this would involve a financial investigation, you would have to obtain bank
statements as well as other relevant documentary evidence. For this, you would
require the involvement of the SAPS. They are the agency best able to obtain
this evidence through various legal methods, including search and seizure
procedures. If you are a private or corporate investigator, your initial investigation
may be valuable in that you will be in a position to identify various role-players
such as witnesses and suspects.
Depending on whether you investigate a misrepresentation made in the

application form or the CV, you would link the suspect with the document.
The easiest way of doing this is to ask the suspect whether the CV or application
form in question is the one they submitted. Then ask the suspect whether
they completed the document themselves and whether it is their handwriting.
If this is impossible, ask the person who received the documents whether it
was signed or completed in their presence. A good alternative is to identify a
person’s handwriting. Ask them or the people they works with to do it. These
people (especially the person’s secretary or personal assistant) know their
handwriting and are good witnesses. Should this approach also fail, the only
option left is to link the person by way of handwriting samples. For this you
will need a handwriting expert. A discussion of this topic falls outside the
ambit of this module.
If the appointment was made contrary to the recommendations of the panel,

there must be a reason for this. Your task would be to find out from the person
who made the appointment why this was done. This might reveal the suspect.
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Nepotism
A word of caution though. These matters are sometimes very difficult to prove,
especially if there is high-level involvement. In such cases, information is very
difficult to come by because of the ever-present threat of intimidation.
The police can obtain certain information, for example, bank records by means
of a subpoena in terms of the Criminal Procedure Act. As a private investigator,
you can obtain certain information by requesting it in line with company policy
and procedures. The suspect can be forced to supply the information or face a
disciplinary hearing, which can lead to dismissal (Jones 2021).
During a criminal and disciplinary investigation conducted at company X, the

suspect refused to provide information. He was dismissed after a disciplinary
hearing. The employee did not want to talk for fear of self-incrimination. He
had the right not to incriminate himself, but he still had to provide the required
information for the disciplinary investigation. In this case, the dismissed
employee did not even go to the CCMA (Jones 2021).
If you investigate nepotism concerning procurement or supply contracts, your

first action will be to obtain the organisation’s policy on procurement. If you
investigate a government department, the provisions of the General Procurement
Guidelines, read with either the Public Finance Management Act 1 of 1999 or
the Municipal Finance Management Act 56 of 2003, will apply. However, it is
not within the scope of this module to deal with these Acts.
Your most important document will be the procurement contract because it

will set out exactly what the responsibilities of the various parties are. Study
the contract and compare its contents with what actually happened. Nepotism/
corruption may be committed in various ways and you are well-advised to
examine the history of the dealings with the supplier. Also be aware of the
possibility that the contractor and the suspect have a mutual understanding.
This means that while the suspect has been awarding the supplier contracts,
the supplier paid corruption money into the suspect’s account. It may not be
so obvious because it may have been a cash payment, in which case a good
look at the suspect’s lifestyle may provide a clue.
One should also analyse the cellphone and e-mail communication if the
cellphone and laptop are the property of the company or institution, in which
case privacy is not guaranteed (Jones 2021).
Suspects sometimes use the excuse that they did not know that they were
not allowed to do something or that they were responsible for a particular
function. The best way to counter this excuse is to obtain a copy of the person’s
job description, the employment contract or the contents of the advertisement
for the job in question. Ignorance cannot be a valid excuse. It is assumed that
senior staff know the ambit of their responsibilities.
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REFLECTION 4.2
Re-read the case study above as well as the investigation (para 4.4 and 4.5).
Unit 4: Investigating nepotism.
(1) Identify one aspect about the investigation that you consider as the most
important. It could be the safe keeping of report copies or a transcript of
the audio recording or even the definition of nepotism in the policy.
(2) Why do you think this aspect is so important?
(3) What additional questions has this activity raised for you or what are you
still unsure about? Share your questions with the group.
Read at least two other blogs and try to answer at least one other person’s
questions (question 3). Go for it, you may have insight that is sorely needed!!
Remember to keep comments courteous, civil and kind.
4.6 PROCUREMENT POLICY TO AVOID NEPOTISM

An example of a policy on the prevention of nepotism is given below. It was
downloaded from the website of the University of Stellenbosch on 4 February
2021 and is an excellent example of such a policy. It shows the various issues that
you should be aware of and take into consideration if you have to investigate
nepotism. Remember to obtain the employer organisation’s policy on nepotism.
Look carefully at the wording. Like the definition of a misconduct, it will contain
the points that you will have to cover in an attempt to prove the matter.
1. Scope
This policy is applicable to all staff members (permanent, temporary, full-time,

part-time) and students. Hereafter, “staff member” includes students, where
appropriate.
2. Definition
For the purpose of this policy, the following definitions are accepted:
2.1 Nepotism is the unfair favouring of relatives and household members.
2.2 Relatives normally include husband, wife, son, daughter, mother, fa-
ther, brother, sister, grandfather, grandmother, grandchildren, in-laws,
brother- in-law, sister-in-law, son-in-law, daughter-in-law and adopted
children.
2.3 Household members include all individuals that share a staff member’s
home on a regular basis.
2.4 Purchaser refers to any staff member who acquires goods and/or ser-
vices for the organization.
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Nepotism
“3. Mutual Service Relationship
3.1 Staff members may neither directly nor indirectly be involved in the
initiation of or participation in decisions about conditions of service
(e.g. initial appointment, promotion, salary, work allocation, award of
research funds, leave, etc.) in respect of relatives or household members.
3.2 Staff members may not be employed in positions where a relative or

household member takes decisions in the normal course of business
or plays a significant role in decision-making in respect of their direct
conditions of service.
3.3 Staff members may not be employed in positions where they are exposed
to the close supervisory authority of a relative or household member.
3.4 In cases where other personal relationships are of such a nature that
objective and accountable supervisory decision-making is impossible,
the Chief Director: Human Resources must be consulted to ensure that
action is taken which is consistent with the content and spirit of the
policy.
3.5 In cases where, although the policy applies, the area is large enough so
that decisions affecting the direct conditions of service of staff mem-
bers may be taken without the participation of relatives or household
members, there may be deviation from the provisions of the policy after
consultation with the Chief Director: Human Resources.
4. Supervisors and Promoters
In cases where it is unavoidable that a staff member acts as supervisor, co-

supervisor, promoter or co-promoter, provision must be made for an unrelated
supervisor, co-supervisor, promoter or co-promoter for the student.
5. Purchase of Goods and/or Services
5.1 Before a purchase transaction takes place in respect of goods and/or

services where relatives or household members are involved as sup-
pliers, the purchaser or transaction decision maker must declare the
relevant personal association to his/her area head.
5.2 Once the purchaser/decision maker has declared the relevant personal
association to his/her area head, the purchase transaction must be
handled by an unrelated staff member.
5.3 If the procedure detailed in par 5.2 is impracticable, the area head may
grant permission for the relevant purchaser/decision maker to handle
the transaction further once he/she (the area head) is satisfied:
5.3.1 that the goods/services cannot be supplied by another supplier on more

favourable terms;
5.3.2 that the same product specifications were submitted to other potential
suppliers;
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5.3.3 that the supplier in question is required to offer the same delivery
conditions and after-sales service as would be expected from any other
independent supplier; and
5.3.4 that inside information did not play a role in the transaction.
5.4 In respect of a closed tender, the prescribed procedure in par. 5.1 to 5.3
is replaced by the following:
5.4.1 The purchaser/decision maker declares his/her personal association

with one or more of the potential suppliers to the panel of reviewers.
5.4.2 The purchaser/decision maker withdraws him/herself from further

participation in the tender process.
6. Other situations
Inevitably, not all specific situations where nepotism may play a role can be
listed in this policy. Where such situations arise, the principles arising from the
previous paragraphs ought to form the basis of the policy and be applied equally.
7. Exceptions
Exceptions to the stipulations of the policy require a written recommendation

from the area head. The final decision on this recommendation rests with:
7.1 The Chief Director: Human Resources where it concerns mutual em-
ployment relations;
7.2 The appropriate academic body where it concerns academic matters;
7.3 The Chief Director: Finances and Services where it concerns the pur-
chase of goods and/or services.”
(University of Stellenbosch 2015).
4.7 RELATED LEGAL ISSUES

Because corruption always goes hand in hand with some form of
misrepresentation, you could always consider a charge of fraud as an alternative
to a charge of corruption because it is easier to prove. You should be vigilant
when doing this kind of investigation because witnesses are hard to find, the
reason being that the Prevention and Combating of Corrupt Activities Act 12 of
2004 requires that both parties to a corrupt transaction be culpable. Therefore,
look for misrepresentation. It is usually made verbally, in writing or by acting
in a particular manner, for instance, shrugging shoulders in a dismissive way
when asked a direct question. Note that section 269A of the Criminal Procedure
Act 51 of 1977 makes provision for certain competent verdicts on a charge of
corruption (Theft, Fraud or Extortion). In 2018 Public Enterprises Minister Pravin
Gordhan lamented that the grounding of SA Express, a state-owned regional
airline, was “… a classic example of the impact of corruption and malfeasance
on South Africa’s national assets” (Defence web 2018). Malfeasance is the
behaviour, which may be either dishonest or illegal, of persons in positions
of authority.
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Nepotism
At the time of writing this module, the first shipment of COVID 19 vaccines
arrived in South Africa from India. Already fears of tender fraud and other
forms of corruption had surfaced in the media. These fears were not unfounded
because, as De Klerk (2021) reports, the chairperson of SCOPA, (Parliament’s
Standing Committee on Public Accounts), Mr Hlengwa, advised a day after the
vaccines had arrived in SA, that the committee had requested an open tender
process for the storage and distribution of the vaccines. “His statement comes
amid heightened fears of possible corruption linked to the vaccine storage and
distribution tenders. Last year companies with ties to ANC leaders were linked
to corruption in the procurement of Covid-19 personal protective equipment.
Ramaphosa’s then spokesperson, Khusela Diko, is facing disciplinary action
after a probe by the Special Investigating Unit into dubious tender processes in
the Gauteng department of health. She is friends with former minister Bandile
Masuku, whose department issued multimillion-rand PPE tenders to Royal
Bhaca, a company owned by her husband, Thandisizwe Diko. Masuku was
sacked after she had been implicated in the case. A number of other serving
ANC councillors have been implicated in misappropriating food parcels meant
for Covid-19 relief (De Klerk 2021).
4.3
Take a moment to reflect on the meaning of the following terms:
nepotism
cronyism
patronage
favouritism
cadre deployment
Please visit the module site and proceed to the discussion forum for Section 1
Unit 4. Access the discussion titled 4.3 Terminology.
Explain in no more than 100 words how your understanding of these terms
has either stayed the same or has changed.
Please share with the group additional explanations or definitions which
may be of benefit to them.
Maize bears fruits once and dies because it is not rooted into the ground.
Meaning: You will never get to the top and stay prosperous without a
good foundation (Legit 2021).
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4.8 SUMMARY
In this study unit, we discussed nepotism and considered the origin of the
term for this type of disciplinary misconduct. We also examined some of the
terms related to nepotism and considered the possible impact of nepotism on
a work environment. We then discussed an elementary investigation into an
allegation of nepotism within a company.
In study unit 5, we will discuss one of the most emotive and difficult units of this
module, namely racism. We will also consider some of its daily manifestations.
SELF-ASSESSMENT
Make sure you have mastered the key concepts that are listed at the start of
the study unit by making brief notes so that the meaning of each term is clear.
Ensure that you are able to adequately answer each of the following:
Explain the origin of the concept of nepotism.

Provide different definitions of nepotism and your own definition.
Identify the different terms and concepts often associated with nepotism.
Explain the damage of nepotism to the morale of an organisation.
Explain the importance of anti-nepotism policies.
Identify conduct which amounts to nepotism.
Will you be able to conduct an elementary investigation into an alleged
incident of nepotism?
Will you be able to draft a report that details the investigation and the
findings and can you make a recommendation for further action based on
the findings?
Explain the importance of clear company guidelines and their value in the
prevention of nepotism.
58
5
ST U DY U NIT
Racism
1 Hour to read the entire study unit

130 Minutes to complete the four activities and one self-assessment activity
at the end of the study unit.
In this study unit, we will consider what racism, as a form of discrimination, is

and how it may manifest within a work environment. We will consider some
key aspects that you must bear in mind when conducting an investigation into
an allegation of racism. Racism is a very emotive issue and when you discuss
or deal with an issue of racism, it is important that you do it with a respectful
and humble attitude. It is vital to the success of any investigator that all duties
and functions are undertaken respectfully, ethically and with humility.
In this study unit, you are given reflective as well as practical tasks. I strongly
advise that you do as many of them as you can online since online collaboration
with fellow students has proven across disciplines to enrich the overall learning
experience. Feedback on the reflective and practical tasks will only be given
online.
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Do not look at where you fell, but where you slipped.
Meaning: Do not focus on the fault, but rather the cause of the fault (Mueni 2020).
different definitions of racism

different terms and concepts that are often associated with racism
the negative impact of racism on the morale of an organisation
the importance of an anti-racism policy
words and terms that may be considered racist
the investigation of a racism complaint
At the end of this study unit, you will know how to
identify conduct which may be deemed racist

conduct an elementary investigation into an alleged incident of racism
draft a report that details the investigation and findings, and makes a
recommendation for further action based on the investigation
investigation of racism in an investigative report
explain the importance of company guidelines and their value in addressing
racism and promoting cultural sensitivity
5.1 LENSES
Have you ever been told that seeing is believing? Or have you ever told anyone:
“Only when I see that, will I believe it”?
Strangely enough, this dictum is, in fact, not true. Literature is filled with
evidence that what we see with our physical eyes is not what we eventually see
with our internal eyes (Lupyan 2017; Suttie 2020; Zadra & Clore 2011). This
is because the connection between our senses, our thoughts and our speech
is set at default, meaning that we see things as we have been programmed to
see them.
If I have been raised to believe that men are cruel and evil, I will view men in
this way. If I have been raised to believe that police officials are savage, corrupt
and not to be trusted, I will regard them in this way. “What we perceive in any
given moment is not only determined by sensory input, but by our personal
physical abilities, energy levels, feelings, social identities, and more” (Suttie
2020).
Do you wear spectacles? Can you see without them? How well do you see with
someone else’s spectacles? If you do not wear spectacles, put some on. How
well do you see what is going on around you? Is your vision blurred or clear?
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Racism
When we look at life, it is important that we are aware of the proverbial lenses
through which we see things.
We all have blind spots, things we do not know that we do not know. The
purpose of this brief discussion is to make you aware of them so that you can
be on the lookout for them. In this module, it is especially important because
you may have a gender, cultural or racial blind spot and be unaware of it.
As the lecturer of this module, I am keenly aware that I too have blind spots.
Although I have tried to write as objectively as possible, my blind spots will show
in this study guide. Therefore, I invite you to engage with me on the module
site and identify my blind spots. Tuck and Yang (2012) in Thesnaar (2017:3)
remind us that “… our pre-existing frameworks will limit us to understand
the scope of” whatever we engage with.
You can read up more on blind spots on the module site under Additional
Resources: Blind spot additional reading. This will not be assessed and is meant
for your personal growth.
5.1
This activity should take you about 20 minutes.
Please visit the module site and proceed to Lesson Tools. Under Lesson Tools
Unit 5: Racism, access the link to the YouTube video titled ‘How your brain
works’. View the videos. There are two of them. This activity is for self-reflection.
EDUCATION MAKES A PEOPLE EASY TO LEAD, BUT DIFFICULT TO

DRIVE; EASY TO GOVERN BUT IMPOSSIBLE TO ENSLAVE.
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EDUCATION IS THE PASSPORT OF THE FUTURE FOR TOMORROW

BELONGS TO THOSE WHO PREPARE FOR IT TODAY – MALCOLM X
REFLECTION 5.2
Look at the two images and the quotes above each. What message do they
convey? What thoughts are going through your mind?
Unit 5: What do these thoughts say about me?
Image 1: In no more than 30 words, share your view on the meaning conveyed
by this meme.
Now ask yourself if you would hold another view if it were not a black female
child or if it were an elderly African man. Or a big white man covered with
tattoos. Share your views on these questions in no more than 50 words.
Image 2: In no more than 30 words, share your view on the meaning conveyed
by this meme.
Now ask yourself, would your view be different if the name Malcolm X was
not there? Or if the child in the meme was Chinese or wore a burkha. Share
your views on these questions in no more than 50 words.
Read at least two other blogs and appreciate and acknowledge how different
we are.
5.2 STICKS AND STONES

There is a saying “Sticks and stones may break my bones, but words will never
harm me”. Unfortunately, this expression is not valid in real life. Often words
that are spoken in jest have the potential to harm. Please proceed to the reflective
activity (5.3) below and answer the questions based on the following quotation.
Why must we always talk about race anyway? Can’t we just be human be-
ings? And professor Hunk replies – that is exactly what white privilege is that
you can say that. Race doesn’t really exist for you because it has never been
a barrier. Black folks don’t have that choice. (Chimamanda Mgozi Adichie)
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Racism
REFLECTION 5.3
Having read the quotation above, take a moment to reflect on what you felt
(not thought) when you read this meme.
Please visit the module site and proceed to blogs. Access the blog titled Unit
5: Let’s talk about race.
Explain in no more than 100 words what you think about the content of this
quotation and respond with one of the following options:
– I fully agree because …
OR
– I partially agree because …
OR
– I fully disagree because …
OR
– Your own option if none of the previous options meet your need.
– Now explain in no more than 100 words how cultural blind spots have
the potential / do not have the potential to influence the way in which
you conduct an investigation into racism.
Read at least two other blogs and comment on at least one. Remember to
keep comments civil, respectful, non-discriminatory and, most of all, kind.
Section 9(1) of the Constitution of South Africa provides that “Everyone is

equal before the law and has the right to equal protection and benefit of the
law” (South Africa 1996). Similarly, the Promotion of Equality and Prevention
of Unfair Discrimination Act (Act 4 of 2000) was drafted to “… give effect to
Section 9 with item 23(1) of Schedule 6 to the Constitution … so as to prevent
and prohibit unfair discrimination and harassment; to promote equality and
eliminate unfair discrimination; to prevent and prohibit hate speech…” (South
African 2000:2). At the heart of racism is the issue of inequality.
5.3 WHAT IS RACISM?

If you type the question ‘what is racism?’ on Google and hit enter, it is unlikely
that you will get fewer than 10 million hits. I did this and the results indicated
570 000 000 hits. Clearly, this is a question for which there are a great number
of answers. Let us consider some of these definitions.
According to the Australian Human Rights Commission (2021), racism is dis-

crimination, prejudice and hatred levelled against a person because they differ
from you in terms of their skin colour, ethnicity or nationality. Racism is “…
prejudice, discrimination, or antagonism directed against someone of a different
race based on the belief that one’s own race is superior” (South Africa 2021).
Synonyms for the word ‘racism’ are racial discrimination, bigotry and intoler-
ance. In the South African context, racism is closely associated with apartheid.
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5.4 RACIAL WORDS AND EXPRESSIONS

Has somebody ever remarked that you were a racist after you have told a joke
about the Chinaman, the Auzzie or Van der Merwe? Well, you may be surprised
to learn that a great number of colloquialisms we use every day are considered
racist (Nittle 2011; Nittle 2014a).
If you take the time to listen or read closely how people communicate, you will
be astounded by the amount of racial profiling and racial insults their com-
munications contain (Nittle 2011). Almost daily we read media reports about
incidents of racism in South Africa (Masombuka 2014; Msomi & Shilaho
2008). I selected a newspaper article about a council member (Mr A) who was
removed from office because of a racism complaint and another (Mr B) who was
dismissed for alleged corruption. Below are two comments randomly drawn
from tweets about the article. Do you think they are racist tweets? Would you
be able to motivate why they are or are not?
TWEET 1:
“@XXXXXXX. If you read the comment from the Chink, you’ll understand.
You have a fast-trolling ability but the brain is a little slow there”.
TWEET 2:
“… apparently whites have this pre conceived ideology that blacks are corrupt,
i therefore tell you that you are a racist your self, because you are accusing XXX
of been corrupt because he is black. The T Party is the Home of ….. party racist
members. that is why your comment focus on Mr B instead of Bin Laden …”
5.5 DISCUSSION
At the time of writing this study material, the Prevention and Combatting
of Hate Crimes and Hate Speech Bill was under discussion. We will confine
ourselves to the use of policy and other legislation.
Within a work situation, anyone who feels that they are a victim of racism has
the right either to register a grievance or to lay a criminal charge of crimen
iniuria against the transgressor. We will briefly address crimen iniuria in sec-
tion 2. All incidents of racism must be taken seriously. Some companies regard
racism in a more serious light than others. The policy of a company should
provide for racism and set guidelines to deal with such incidents.
After an incident of racism, the aggrieved person should report the matter to
the immediate supervisor. Do not complain about it on Facebook or Twitter or
any other social media forum. You may inadvertently render yourself guilty
of the same offence on it. There have been numerous reports of people who
were dismissed for ranting on Facebook about the “racist pigs” their bosses
are. Because it amounts to crimen iniuria, you can be held criminally liable
and may end up losing your job (Nittle 2014b).
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Racism
If the incident is viewed as less serious ( I use this term very carefully because
NO incident of racism should ever be viewed as less serious – but I use it here
for contextualising purposes only), the aggrieved person may be satisfied with
a formal apology, especially when the alleged transgressor was unaware that
their comment was regarded as a racial slur. Such matters are to be handled
with sensitivity.
On the other hand, it may be necessary to deal with the matter in a more for-
mal manner. The organisation’s policy on racism should be studied and the
procedures set out in the policy must be followed. As stated before, this is an
emotional issue and you must treat the aggrieved person with empathy. Also,
be aware that both parties may be extremely upset and that they may take this
out on you. Dealing with such persons requires tact and diplomacy. Therefore,
if the aggrieved party feels strongly about the incident, a formal complaint must
be registered. Depending on the procedure of your company, this may be done
with HR or with the manager of the Corporate Investigations Unit.
If the matter is serious enough to warrant it, the alleged transgressor may be
suspended pending the outcome of the investigation. The suspension does not
mean that the person is considered guilty; it is merely a means of ensuring that
the investigation into the matter can take its course without any attempt on the
part of the alleged transgressor to influence it. In some instances, suspension
may not be required.
Unisa considers any form of racial discrimination unacceptable. It is considered

as such a serious misconduct that they have drafted a Policy on Racial Dis-
crimination in addition to the Unisa Policy on Employee Discipline (2013:7–8),
which defines racial discrimination as:
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5.6 INVESTIGATION
If you are tasked to investigate such a complaint, it, once again, must be in
writing and linked to the contravention of a policy or code of conduct. Obtain
an affidavit from the complainant in which the incident is described. In it,
the alleged transgressor must be identified and the exact words, gestures or
behaviour that gave rise to the incident must be described in detail, which
may again cause the aggrieved person to become emotional. Be patient and
understanding: but do not let your own emotions cloud your judgement.
If there were witnesses, it is important to take their statements too. Once again,
the exact words, gestures and behaviour they remember must be recorded. As
the investigator, your role is to gather the evidence and not to take sides. You
must remain impartial. You must then apply the audi alteram partem rule. This
means you must take a statement from the alleged transgressor in which they
give their version of events.
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Racism
When you take down statements, you must capture the essence of what is ex-
plained in the policy in relation to whatever you are investigating. If company
policy defines racism as the use of words or slurs with a racial connotation,
then this is what must be captured in the statement. You should also capture
any social media footage (or evidence) that pertains to this event.
Once your investigation has been concluded, you draft your investigative report
and forward it to the relevant senior manager for a decision. Depending on
the seriousness of the incident, the alleged transgressor may receive a verbal
or written warning. In some instances, racism is grounds for dismissal once a
formal disciplinary hearing has been held.
A vital point to consider in your investigation is whether both the parties were
sober at the time of the incident.
5.7 OTHER FORMS OF DISCRIMINATION

Racism is not the only form of discrimination that may be encountered within
a workplace. Other forms of discrimination may occur on the basis of
marital status
age
language
ethnicity
gender
sexual orientation
disability
religion
Unless the employer can substantiate that certain requirements, specifications

or exclusions are based on the inherent requirements of the job or affirmative
action, such discrimination is deemed to be unfair. If a job requires the applicant
to have certain qualities (regarded as unfair, as described above), the employer
must give good reasons for these requirements. For example, it would not be
unfair or unreasonable to reject the application of a physically disabled person
for a job that requires physical mobility such as painting high-rise buildings.
REFLECTION 5.4
Unit 5: Social Justice and investigation of racism.
1 Which of the elements of social justice (access to resources, equity, human

rights, diversity and participation) can be integrated into your investigation?
Share your strategy in no more than 100 words.
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A roaring lion kills no game.
Meaning: It takes action and not words to achieve something (Mueni 2020).
5.8 SUMMARY
In this study unit, we discussed racism as a form of misconduct within the
South African labour environment. We considered how this may manifest and
how the issue may be addressed from an investigative perspective. In study
unit 6, we will discuss the misuse of company property.
SELF-ASSESSMENT
unit by making brief notes so that the meaning of each term is clear.
Ensure that you have reached each of the outcomes for the study unit.
Can you recall the different definitions of racism?

What terms and concepts are often associated with racism?
Can you briefly mention the negative impact of racism on the morale of an
organisation?
Do you understand the importance of an anti-racism policy?
Are you able to identify words and terms that may be considered racist?
Are you able to investigate a racism complaint in the corporate space?
68
6
ST U DY U NIT
Misuse of company property
This study unit will require approximately 3 hours of your time.
1 Hour to read the entire study unit

120 Minutes to complete the four activities and one self-assessment activity
at the end of the study unit.
In this study unit, we will deal with the misuse of company property. This is
also called the unauthorised use of company property. Company policy will
dictate what it is called and what this form of misconduct entails. We will briefly
examine the nature of this supposedly innocent infraction of company rules
and consider why the misuse of company property should not be tolerated in
any form. While I will use the term ‘misuse of company property’, this type of
action may also manifest as the unauthorised use of company property.
In this study unit, you will come across reflective as well as practical tasks. I
strongly advise that you do as many of them as you are able to online since
online collaboration with fellow students enriches your learning experience.
Feedback on the reflective and practical tasks will only be given online.
A hippopotamus can be invisible in dark water.
Meaning: Ignorance can lead to potential danger. It is important to be informed

and alert (Sample posts 2021).
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what company property entails

the many ways in which company property may be misused
the negative impact that the misuse of company property has on the finances
of a company
the value and importance of a company policy that addresses the use of all
forms of company resources
the investigation of an allegation of misuse of company property
At the end of this study unit, you will have know how to
identify conduct which may be deemed a misuse of company property

conduct an elementary investigation into an alleged incident of misuse
of company property
identify and use the different terms and concepts that are relevant to an
investigation of the misuse of company property
explain the importance of clear company guidelines and their value in
addressing the use of company property
6.1 COMPANY PROPERTY

In company policies, the misuse of company property is regarded as a serious
disciplinary matter. Under specific circumstances, this type of misconduct may
even amount to theft, possession of stolen property or damage to property.
Theft is defined as “the unlawful appropriation of moveable 1corporeal property
belonging to another with intent to deprive the owner permanently of the
property” (Joubert 2013:141). We will not discuss theft in this unit since it is
discussed in section 2. Let us first consider what the term ‘company property’
entails.
Company property includes tangible (physical) and intangible assets. Tangible

assets are things such as stationery; equipment; materials; vehicles; computers;
business premises; buildings and equipment; diesel; machinery; company cars;
cellphones; and money. Intangible assets, on the other hand, are things such
as trademarks; patents; confidential information; company secrets; intellectual
property; and the reputation of the brand also know as Goodwill (Accounting
tools 2021; Balfour Beatty 2014; LWO 2021).
In most companies, employees work with or use company property in some

form or another. It is how this property is used that has the potential to cause
considerable financial losses to companies. Financial losses are the result of
either negligent use or intentional damage (LWO 2021). The form that the
misuse takes is important to consider: was the employee negligent or was the
equipment misused on purpose? (Williams 2021).
1 Something is corporeal if you can see or touch it.
70
For the purposes of this unit, we will only focus on tangible assets. Several
problems arise when company property or equipment is used for personal
purposes.
6.1
Take a moment to re-read paragraph 6.1. Consider what company property is

and how employees are supposed to look after company property entrusted
to them.
Please visit the module site and proceed to Blogs. Access the blog titled Unit
6: What is company property?
Search online for a recent media report that deals with the misuse of company
property in South Africa or on the African continent.
Share the link with your fellow students. Explain the type of property that
was involved.
A company that makes its equipment or property available to an employee,

expects that the employee will use it for work-related purposes, in other words,
in the execution of their duties in the work environment. Our discussion will
focus on the misuse or unauthorised use of company property.
6.2 MISUSE OR UNAUTHORISED USE OF COMPANY

PROPERTY
Because company property is often expensive and because a company cannot
function effectively without it, its use must be properly regulated. Flanagan
(2019) argues that while the unauthorised use of company property may be a
type of theft, the incident possibly has wider ramifications. In “… the technical
sense because it (the misconduct described in policy) does not require the
employee to have actually taken possession of the employer’s property or
alternatively deprived the employer of use of that property. It is for this reason
that employees who are caught in possession of company property are usually
charged with unauthorised possession” (Flanagan 2019).
However, one may argue that some degree of personal use of company property
should be permissible. It is crucial to note that whatever is allowed, should apply
to all employees. Rules must apply to all and must be consistently and vigilantly
enforced to ensure that personal use does not exceed the limits that a company
has set (Bizfilings toolkit 2014). But how much personal use is permissible?
Think of the following unintended consequences of staff using company
property for their own purposes:
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If equipment breaks, who is to pay for the repairs?

Staff using company equipment for their own purposes result in a loss of
productivity. Staff should, after all, be doing their work and not attend to
their personal business.
Wear and tear on equipment has a financial impact because of extra
maintenance and the premature replacement of equipment.
Staff who witness the personal use of company property by others may grow
disgruntled because they view it as an abuse and expect management to act.
Electronic equipment may pick up viruses or store undesirable web content
on the server, which could infect the entire network of the company.
Staff who use a branded company vehicle for their own purposes in an
irresponsible way by, for example, parking in a no-parking zone, damage
the reputation of the company (Bizfilings toolkit 2014).
6. 2
Take a moment to re-read paragraph 6.2. Using your feedback to activity

6.1 visit the module site and proceed to Blogs. Access the blog titled Unit 6:
Consequences of misuse of company property.
Briefly discuss the possible repercussions of the misuse of company property

for the organisation in the article. Your discussion should be no more than
150 words.
Remember to keep comments civil, respectful, non-discriminatory and, most

of all, kind.
72
FIGURE 6.1
(Economic Crime Survey 2020:10).
The figure above is the latest Price Waterhouse Coopers (PWC) Economic Crime
Survey. It shows that 23 per cent of economic crime in 2020 and 49 per cent
in 2018 can be attributed to asset misappropriation (Economic Crime Survey
2020:10). Since the figures for 2020 are less than half of that for 2018, one has
to wonder what impact COVID-19 and the global and regional lockdown
had on the 2020 figures. Also consider the fact that the percentage for asset
misappropriation is the highest of all types of economic crimes for 2018. This
type of misconduct costs companies hundreds of thousands in losses per year
(LWO 2021).
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Asset misappropriation, in the strict sense of the word, means a type of fraud
perpetrated by an employee against a company. It is often committed by those
entrusted with company assets or interests. Asset misappropriation manifests
in the theft of company property such as confidential information, patents and
formulas. Companies suffer financially and it is believed that over 90% of busi-
ness fraud relates to asset misappropriation (Admin 2018). Companies that are
affected the most are those who are ill-prepared in terms of policy guidelines
to deal with such disciplinary transgressions.
6.3 POLICY MATTERS

The guidelines contained in the policy of the company at which the alleged
infringement took place, are fundamental to the success or failure of an inves-
tigation. The policy is also dependent on the type of organisation it is written
for. Because most organisations make use of computers, software and hard-
ware, they should be classified as such in the policy. Issues such as the use of
a company computer for personal e-mails, downloading literature for school
tasks, accessing pornographic and other undesirable sites must be addressed in
the policy. Stipulating what is permitted and what is not, as well as how much
is permitted, is vital to the success of disciplinary action against an offending
employee (Bizfilings 2014a).
The ICT Acceptable Use Policy of Unisa (Unisa 2020:7) has the following to
say about personal use of Unisa equipment:
The same policy highlights the repercussions for neglect or misuse (Unisa
2020:8).
74
Consider the ramifications if staff make use of a branded vehicle. Suppose that
on his way between satellite offices and during lunch time, a staff member
stops at a coffee shop and drinks a cup of coffee with a friend. On the way
back to the office, he runs down a pedestrian. Does your company policy make
provision for such a scenario?
Bear in mind too that once policy has been drafted, all staff members should be
made aware of it. At company X, when a new policy is developed, it is distributed
to all staff via the intranet. When a staff member logs on to their workstation
in the morning, there is a pop-up menu informing the staff member of the
policy. Staff have an option to download the policy and read it immediately
or later. Once the ‘OK’ button has been clicked on, the staff member certifies
that they are aware of the content of the policy.
While the enforcement of workplace rules (such as policy) is vital to the

functioning of any organisation, what is perhaps more important is that staff
know of and understand the content and the need for these rules or policies.
Policies ensure a safe and equitable working environment only when the rules
are known and enforced consistently.
Policy matters can be communicated to staff either in writing or verbally

(Bizfilings toolkit 2014b). It is important to document when information sessions
were held and which version of the policy was shared with staff. As far as
possible, refrain from different versions of policies. Sometimes it is unavoidable,
especially in dynamic environments that are prone to rapid change (Bizfilings
toolkit 2014b).
What is the best time to inform staff about policy issues? There are no hard-
and-fast rules, but here are some suggestions. Induction or onboarding sessions
is a good time to orientate new staff members to the policies of the company. A
disciplinary hearing also offers a chance to remind the infringing staff member
of the policy and its rules. Furthermore, when staff enquire about rules and
procedures, use the opportunity to inform them about policy. Finally, staff
should be engaged when policy is changed. It is vital that all staff members
are informed as soon as possible of policy changes and their implications.
(Bizfilings toolkit 2014b).
In the Disciplinary Policy of Unisa, the following is highlighted regarding

damage to and the unauthorised possession of company property:
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(Unisa 2013:5).
It is interesting to note that the term ‘dishonesty’ covers disciplinary misconduct

that amounts to theft and the unauthorised possession, use and removal of
university assets (Unisa 2013:5–6).
REFLECTION 6.3
Take a moment to reflect on the following case studies.
Case study 1
Karabo uses a computer to perform his daily duties. Every now and then
he watches YouTube videos about funny cats during his lunch break on
the computer. He does not do this during work hours and it does not seem to
affect his work or interaction with his colleagues. Would you tell him to stop?
Case study 2
Mary, a single mother, studies part-time to improve her qualification. She does
her assignments on her work laptop during lunch time and after hours, and
uses the internet at work to upload her assignments before office hours begin.
Would you tell her to stop?
Case study 3
Joseph, an IT specialist and an avid online gamer, likes to stream online games
via Twitch when he is at work. He does this irrespective of whether there is
work to be done or not. He uses his dual screen to watch the live stream while
giving attention to his other duties. He is often rude to colleagues and is known
for neglecting some of his duties.
Please visit the module site and proceed to Blogs. Access the blog titled Unit
6: Fair use of company property.
Imagine that you are Karabo, Mary and Joseph’s line manager. Explain in
no more than 150 words what you would do in each of these case studies
and motivate your answers.
76
One head (or an individual) does not hold the council.
Meaning: It is better for two or more people to deliberate on a subject rather than
allowing only one person to decide on an issue (Sample posts 2021).
CASE STUDY
You are the investigator at company X. The head of procurement, Mr G Ishmael,

often takes his laptop home for work purposes. His daughter, Janice, is a registered
student of a correspondence university. She uses Mr Ishmael’s laptop after hours
to do her online assignments. You are tasked to investigate the matter.
Based on the above scenario, what misconduct (if any) is committed?
Let us now discuss the investigation of this alleged infringement.
6.4 INVESTIGATION
Much of what happens in this investigation will be determined by the policy
that deals with company property. As the investigator, it is your responsibility to
determine the facts. You must establish whether possession of the laptop after
hours and off-premises is part of the normal execution of duties. Is it possible
that Mr Ishmael also uses the laptop while it is at his house to do work-related
reports? Always try to think ahead and anticipate possible explanations that
people may give to justify their actions. Obtain a copy of the policy and direct
your investigation to finding the evidence that you require to prove or disprove
unauthorised use (or misuse) of company property.
You have to ascertain whether Mr Ishmael has permission to be in possession

of the property. If he has permission to use the laptop after hours at his home,
is it a transgression to allow his daughter to use the laptop for her studies?
Obviously, Mr Ishmael’s explanation is important because it will enable you
to determine what you need to prove the allegation.
In the matter of S v Rheeder 2000 (2) SACR 558 (SCA), vehicles were kept at a
police storage site under the control of the police. A police official may not use
the vehicle with impunity even though he had access to the vehicles and their
keys. The accused was found guilty of committing a crime under section 1(1)
of the 2General Law Amendment Act 50 of 1956.
You must determine what the allegations are and prove them by obtaining
statements from witnesses.
If the allegation is that company property has been damaged, you must
determine the nature and extent of the damage. You must have the damage
assessed by a competent person and the value established. Also bear in mind
that, besides disciplinary action, a criminal charge of malicious damage to
2 General Law Amendment Act 50 of 1956.
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property may also need to be investigated. Although a private or corporate

investigator is quite capable of doing the initial investigation, the matter will
have to be referred to the police for criminal prosecution if a criminal charge
is considered.
Establish how the employee came to be in possession of company property.

Although not relevant to this scenario, you may find that the person made
some misrepresentations, either verbally or in writing, to the person in charge
of the property to get possession of it. In such circumstances, you may have
an example of fraud. If no misrepresentation was made and the person merely
abused his/her authority, it may be a disciplinary transgression.
In some cases, a senior person will approach the person in charge of company
property and state that it is needed for some (false) purpose. The custodian of
the property, who believes the reason to be valid, hands over the property. In
such an instance, there should always be a paper trail. It is worth noting that the
modus operandi of fraudsters is not to leave a paper trail and if they are caught,
they allege that they “made a mistake” (Jones 2021). A paper trail implies a
proper record of company property by means of a booking form or register in
which an item such as a pool car, is booked out to someone and booked back
when it is returned. The driver will book the vehicle, and on collection of the
vehicle, both the driver and the fleet manager inspect the vehicle and make
notes of damage already on the vehicle, the odometer reading, fuel level, and
so on. On return, the same inspection is done to ensure that the vehicle is
returned in good order. In such an instance, you must either seize the register
or make a certified copy of the entry. Obviously, you will take a statement from
the custodian in which the background to the matter is set out. You will then
attach a copy of the relevant page of the register as an annexure to the statement.
Please access the link below for further reading on a matter before the Labour
Court dealing with the deliberate abuse of company property. Notice the pitfalls
in this case. http://www.saflii.org/za/cases/ZALCJHB/2018/138.html
The entire document is also available via the link on the module site under
Additional Resources. Unit 6: Misuse of company property.
6.5 ABUSE OF COMPANY PROPERTY

The abuse of company property is another serious offence that can lead to
dismissal on first conviction. An employee has the duty to further the interests of
the company that employs them. For this reason, malicious damage to company
property or assets is regarded as a breach of trust. Sabotage, the disregard for
regulations, poor maintenance, wastage and the unauthorised use of machinery
or vehicles are examples of misconduct (Landis & Grossit 2003:172).
It may not be theft when you take something that does not belong to you
such as a laptop, use it and return it the next day. This may, in effect, be the
unauthorised use or possession of the property of another. Essentially, any
person who removes any property from the control of another or the person
in charge without that person’s consent, and uses it for their own purposes, is
guilty of an offence (Joubert 2013:149). If consent was obtained fraudulently,
fraud could be an alternative charge. Unauthorised use is punishable in terms
of the provisions of section 1(1) of the General Law Amendment Act 50 of 1956.
78
Furthermore, damage to property, which is also referred to as “malicious injury

to property”, is defined by Joubert (2013:174) as “the unlawful and intentional
damage to property belonging to another person or damage to one’s own
insured property with the intention to claim the value of the damage from the
insurer”. We will consider this offence in section 2.
6.6 ETHICS AND THE USE OF COMPANY PROPERTY

The following is by Mark Putnam and is a quote from the website with the following
link: https://www.linkedin.com/pulse/taking-care-stuff-work-mark-s-putnam/
“Read the business headlines and you’ll find ethical crises like embezzlement, fraud,
or misuse of company products or services making the headlines. High profile ethical
breaches like these all have to do with something near and dear to a company’s heart;
its assets. This is known in the workplace as the “stuff” which the company has paid
for and that you use every day in your job. When it comes to company assets (in ANY
form) things get serious. Mess with the money or the stuff, and you’ll end up in hot
water really fast. On the surface, this seems cut and dried, but is it as easy as it sounds?
For those of us without executive power and influence millions of dollars, ethically
taking care of company assets may be a non-issue. You show up for work, do your
job, and go home without engaging in any high finance or legal maneuvers. Little did
you know, during your seemingly routine day, you had hundreds or even thousands
of dollars of assets under your control. With all the stuff that passes you by each day
at work, you probably never think about it in terms of assets and your responsibility.
Do you drive a company car, work on a computer, or maintain equipment? Do you use
a company credit card or expense account? Do you have access to or are you responsible
for intellectual property or company records? All these are examples of assets. Some
are physical and some are intangible, such as company secrets, trademarks, and
confidential information. Every employee from the janitor to the executive controls
some kind of asset every time he or she shows up for work.
Most people don’t give company assets a second thought until they are lost, stolen or
broken. Herein lies the problem. Employees must understand that ethical behavior
is demonstrated not only in how they act toward others but also in how they treat
property that doesn’t belong to them. The key to success is understanding who owns
what and what boundaries exist for its use.
Your mother may have said, “treat other people’s property as if it were your own.” As
a child, if you borrowed a toy, you took extra special care of it. As a guest in another
home you didn’t touch anything that wasn’t yours. Why doesn’t this lesson seem to
transfer to the company’s property where we work? As an adult, you know better.
Now it seems that caring for assets doesn’t matter as much because the company
always has enough money or deep pockets to replace the stuff we break or use up.
If no one else cares, why should we? But those simple moral truths from childhood
don’t grow obsolete with age. The fact is, we should care about how we treat property
that isn’t ours.
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Everyone deals with stuff differently. Some detach themselves from the asset so they
don’t care about it or they attach themselves too much so they feel like the rightful
owners. In the first situation, learning to care about company stuff is accomplished
through thoughtful consideration. Who paid for this and how would I feel about writing
the check that pays for it? What are the boundaries for appropriate use? This is an
attitude that doesn’t necessarily change from work to home. An ethical person doesn’t
put a dollar amount on respecting the property of others. He or she always makes a
moral connection between property, ownership, and responsibility.
In the second case, becoming too attached or familiar with company property creates
a problem as well. If you use something every day, you may become desensitized to
its appropriate professional use. Do you balance company financial accounts like
your own? Do you find yourself hitting the computer or kicking the copier (even if it
deserves it)? Is the company treated like your own? Do you treat records and private
information in a casual manner? It might be time to take a more serious approach
to company property.
Beware of “messing with the money or the stuff” because ethical situations
involving company assets, no matter how small, are rarely smoothed over with an
apology. There’s always a smoking gun that does not leave gray areas for rationalization
or explanation. Most industries deal with asset abuse or misuse with disciplinary
action or termination on the first offense.
Again, business ethics boils down to the day-to-day choices you make no matter who
you are or what responsibilities you have. From the minute you step from the parking lot
into your workplace, see the things around you in proper context. Although Shakespeare
said, “All the world’s is a stage,” don’t treat the “stuff” like props.” (Putnam, 2017).
While the context is clearly American, the content is most certainly applicable to
the South African environment. It is vital that wherever we work and whatever
we do, we treat with respect the tools of the trade (all the equipment we received
to do our work). The proverb below describes this very well.
Do not call the forest that shelters you a jungle.
Meaning: it will be foolish of you to insult the institution that you depend
upon to survive (Sample posts 2021).
REFLECTION 6.4
Re-read the section on Alternative Dispute Resolution in section 1, study unit

0. Proceed to the module site and access the blog titled Unit 6: Alternative
dispute resolution. Indicate to which extent you may consider alternative dis-
pute resolution a means to resolve matters regarding the misuse of company
property. Motivate your answer.
Read two blogs and comment on at least one.
80
6.7 SUMMARY
In this study unit, we discussed the misuse of company property and the dam-
age it causes in an organisation. The misuse of company property can easily
degenerate into theft under certain circumstances. In section 2, study unit 1,
we will discuss the common-law crime of theft.
This concludes section 1. I trust that you have a better understanding of some
of the more prominent disciplinary transgressions that occur in the South
African labour environment.
In section 2, we will consider the following crimes in terms of the South

African common law or statutory law:
theft
perjury and defeating or obstructing the ends of justice
harassment or sexual harassment
common assault
intimidation
malicious damage to property
SELF-ASSESSMENT
Make sure you have mastered the key concepts that were listed at the start of
the study unit by making brief notes so that the meaning of each term is clear.
Ensure that you have achieved each of the outcomes for the study unit by
reviewing the questions below:
What does company property entail?

What are the ways in which company property may be misused?
What negative impact does the misuse of company property have on the
finances of a company?
What is the value of a company policy that addresses the use of all company
resources?
How does one conduct an investigation into an allegation of misuse
of company property?
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REFERENCES
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88
SECTION
CRIMINAL OFFENCES
II
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90
Criminal offences
ST U DY U NIT
Theft
1
This study unit will require approximately 3 hours and 10 minutes to complete.

130 minutes to complete the five tasks and one self-assessment activity at
the end of the unit.
In this study unit, we will examine the common-law crime of theft. We will
consider some of the ways in which this crime manifests in the work place and
discuss mechanisms to curb employee theft.
In this study unit, there are reflective as well as practical tasks. I strongly advise
that you do as many of them as you are able to online since online collabora-
tion with fellow students enriches your learning experience. Feedback on the
reflective and practical tasks will only be given online.
Stealing a drum is easy, but finding a place to beat it is not.
Meaning: when you do something that is wrong, you may not enjoy its fruits.
(MoveMeBack 2017).
Unless otherwise stated, I have made use of the guidelines for the investiga-
tion of theft from the study guide Investigative Principles for Policing II (Unit 2:
Theft) – POL2602. I used examples from the corporate environment and I have
supplemented the sources with legal and contemporary sources.
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CRIMINAL OFFENCES
the common-law crime of theft

the definition of theft
the elements of theft
receiving stolen property and possession of stolen property
explain theft as a property crime

give a definition of theft
name the elements that make up the crime of theft and elaborate on each
describe the investigation of an incident of theft at your workplace
appreciate the importance of company guidelines for the use of company
property and its relation to theft
1.1 INTRODUCTION
You will agree that we live in a consumer society. On a daily basis we buy
things: groceries, fuel, airtime, clothing, property or electronic equipment,
to name but a few. We use the things we have bought for specific purposes.
Suppose you buy yourself a new laptop. You proudly take it to work to show
your colleagues what your laptop can do. Before lunchtime you lock your laptop
in the top drawer of your desk. When you return after lunch, you discover that
your drawer has been forced open and your laptop has been stolen. You feel
aggrieved. This amounts to theft, a crime perpetrated against property.
In your organisation, the supply chain manager approves the purchase of stock
that the company uses. Stock is also subject to theft by employees. Employee
theft is one of the most blatant signs of disloyalty an employee can display.
When employees take goods (products, equipment or even money) which they
may not lawfully take or possess (in terms of their tasks and responsibilities
at the company) and intend to keep or sell them, this amounts to theft or the
unauthorised possession of company property (Albertyn 2017).
Theft or the unauthorised possession of company property in the workplace is

when an employee takes goods (including money, equipment, products, etc) to
which they have no lawful right with the intention to keep and use it for any
other purpose or to sell it. The latter part of the definition is important because
you have to prove that the employee had the intention to deprive the company
of its goods permanently.
Thousands such incidents occur daily. People lose valuable property to criminals
every day. Some incidents form part of another crime such as when a thief breaks
into your vehicle and steals the leather jacket you left on the back seat or when
a colleague opens the communal fridge at the office and takes a sandwich from
a lunchbox labelled ‘Gloria’. Ah, how tactfully I phrased that. This is what theft
is: when you take something that belongs to another person and you have no
intention of giving it back.
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When considering the annual crime statistics on the official SAPS website, you
may be surprised to find that theft is the most common of all crime categories.
Theft costs South Africans millions of Rands per year and has a noticeable impact
on the victim and the insurance industry. If you are insured, you claim from
your insurance and replace the item, but often with a hefty excess payment.
The USA shows a similar trend. Hagan (2011:258) contends that larceny-theft
(we call it theft) makes up the largest category of crime on the Uniform Crime
Report (UCR) index.
REFLECTION SECTION 2: STUDY UNIT 1.1
This activity should take about 30 minutes.
Please visit the module site and access the blog titled Section 2: Unit 1: CCTV/
Surveillance cameras and my privacy
(1) What is your opinion on the use of CCTV (closed-circuit television) or

surveillance cameras in the workplace?
(2) Share your views on this question in no more than 50 words.
(3) Re-read the section on social justice in section 1, study unit 0. Do you think
that the public use of CCTV or surveillance cameras in shopping centres
has a negative impact on the elements of human rights as a principle of
social justice? Share your views on this question in no more than 50 words.
Read at least two other blogs and respond to at least one other blog. Remember
to keep responses civil, respectful and kind.
We will now consider what the law says about theft.
1.2 LEGALLY SPEAKING – WHAT DOES THE LAW SAY?

Joubert (2013:xii–xvii, 103–225) maintains that crime manifests in different
ways and is perpetrated against different things or people. Lotter (2014:60–93)
unpacks how crime manifests in terms of the victim. She distinguishes between
the following types of crime:
crimes against the state

crimes against the administration of justice
crimes against life
crimes against bodily integrity
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crimes against property

crimes relating to damage to property
crimes against public welfare
road traffic offences
sexual crimes
Theft is considered a property crime. Joubert (2013:141) defines theft as the

unlawful and intentional taking of property which belongs to another person
without the intent to return it to that person. In layman’s terms, theft is
when someone takes your sandwich (moveable and tangible property) from
the communal fridge, has no intention of giving it back and deprives you of it
by eating it. It sounds silly, I know, but this amounts to theft! While it is highly
unlikely that the organisation will institute an investigation into the theft of a
sandwich from the communal fridge, it is likely that disciplinary steps will be
taken against such a person. Would you like somebody who is prone to stealing
other people’s property to work in your organisation?
Theft is committed most of the time for selfish reasons such as financial gain.
Durham (2020) submits that, in some instances, employees who were caught
stealing were under no financial pressure. The thieves indicated that they
had seen senior managers do it and, therefore, believed it was an acceptable
practice or that they felt undervalued as employees. Similar excuses are used
to justify their actions. If senior managers are permitted to borrow company
equipment over weekends, why may employees not do the same? Evidence
suggests that the behaviour of employees is influenced, to a certain degree, by
the behaviour of their senior managers, especially in matters such as the misuse
or theft of company property (NSW Business Chamber 2021). Employees go
so far as to blame the company because the company makes it easy for them
to steal (Durham 2020).
Nonetheless, it is never acceptable to steal from your employer. It is one of the

most disloyal acts one can perpetrate against the organisation that employs you.
In most instances, theft constitutes grounds for dismissal (Clarke, Mathebula
& Van der Merwe 2018).
It is unfortunate that theft is sometimes regarded as something petty. This is

especially so when the value of stolen property is negligible. Theft is a serious
criminal offence. All incidents of theft should be addressed or investigated with
great circumspection. If a person has stolen something small and relatively
invaluable, it does not mean that the crime should be overlooked. The individual
may be a professional criminal who was caught stealing something of little
value on this occasion.
In an organisation, it is wise to differentiate between petty theft (the theft of

small and insignificant items) and serious theft (the theft of valuable items
because of their monetary or intrinsic value). When you are tasked to investigate
petty theft, it is pertinent to ‘count the cost’ before embarking on a wide-ranging
investigation that will cost the company a great number of your man-hours
(time is money). Is the cost expended appropriate to the value of the item/s
stolen? This does not mean that petty theft should be ignored. By no means.
If anything, several incidents of petty theft means that something is wrong.
The company would do well to get to the bottom of the problem before all
the petty-theft incidents combined become a major loss. Employee theft has a
detrimental financial effect on any organisation.
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It is vital that, in such incidents of misconduct (theft), employers follow the

correct procedure. Be mindful that one cannot charge an employee with theft
and dismiss him because the trust element of the employer-employee relation-
ship is no longer there. According to Section 185 of the LRA, “Every employee
has the right not to be unfairly dismissed” (Claassen 2021). So, even if there is
a valid reason to dismiss someone, it is important that the correct procedure
be followed.
Procedure is informed by policy. Line managers must be informed of the relevant

regulations and accompanying rules of the company. Too often procedures
and policies are in place, but are not followed. So when an incident of theft is
reported/discovered, it is vital that a proper investigation be conducted with
due regard to the policies and procedures of the company (Claassen 2021).
Employers should understand that when an incident has occurred, whether it’s
the fault of the employee or attributable to outside influences, the circumstances
of the case must be investigated. It is important not to jump to conclusions and
sufficient time must be allowed for detailed investigation.
The Unisa Disciplinary Policy (Unisa 2013:5-6) explains this misconduct as

follows:
1.3 ELEMENTS OF THE CRIME

Theft may seem a simple crime to prove, but let us consider the elements that
you will have to prove when an allegation of theft is made against an employee.
Remember the example we use is just that – an example. Theft is theft, whether
you take an extra set of paper clips from the office supply store or steal a large
amount of money from the cash register. The crime and the elements that have
to be proved in court are the same. Figure 1.1 below explains the elements of the
crime. If one or more of the elements are absent, the crime cannot be proved.
Then an alternative charge should be considered.
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FIGURE 1.1
1.3.1 Element 1: Appropriation

The first element that you will have to prove is appropriation. When someone
appropriates the property of another person, they take it or remove it from the
control of another person. I do not steal if I borrow an item without asking
permission and return it when I am done. This is using the property of another
without that person’s permission or, if it is company property, unauthorised
possession or use, which some companies view in a serious light. To prove this
element, the appropriation must be unlawful. In other words, I do not have the
legal right to take your cellphone from your bag.
1.3.2 Element 2: Corporeal property

The second element you will have to prove is that the stolen property was
corporeal property. What does it mean? Joubert (2013:144) explains this as
follows: “Something is corporeal if you can see and touch it”. So, I cannot
steal your oxygen. Corporeal property can be either moveable or immovable.
Moveable corporeal property are things such as vehicles, electronic equipment,
paper clips, paper, furniture, clothes, groceries, and so on. Immoveable corporeal
property are things such as a building, a house or land. In this module, we will
concentrate on moveable corporeal property.
1.3.3 Element 3: Ownership

The stolen property must have belonged to someone else. Once again, you
cannot steal oxygen or water from the ocean since it belongs to everyone.
Similarly, if something has been thrown away, it cannot be stolen because
the owner has relinquished ownership by throwing it in the garbage bin. The
question here may be whether the company has some guideline for discarding
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equipment or objects that are no longer in use. Technically, wild animals cannot
be stolen since they roam freely. But what if I purchase a herd of antelope for
my game farm and fence them in? Can they be stolen?
1.3.4 Element 4: Intention of theft

The last element is intention of the thief. For theft to be completed, it is important
that the thief had no intention to return the item/s. Consequently, if I take
a company car without authorisation and return it the next day, it amounts
to the misuse of company property or unauthorised possession of company
property and not to theft. Misuse or unauthorised possession is far easier to
prove than theft. Similarly, if I take petty cash with the intent to return it the
next day, is it theft? Again, what does company policy say about it?
Please note that this is not a law module and, therefore, we focus on these aspects
very briefly. You can do some further reading by accessing the information
under Additional Resources: Theft on the module site.
1. 2
ACTIVITY SECTION 2: UNIT 1.2
Please visit the module site and go to Discussion forums: Section 2: Unit 1.
What is wrong with this conduct? Consider the following examples and say
whether they are incidents of misconduct or not. Please explain the type of
misconduct that you think the person in each example is guilty of and provide
reasons for your answers.
(1) John takes his office manager’s cellphone without permission to phone
his wife. He returns the phone immediately thereafter.
(2) Sue overhears a colleague talking about a creative idea for addressing a
staffing problem. She pitches the idea to the office manager as her own.
Based on this, she receives a bonus.
(3) Jacob takes a packet of highlighting pens home for his son to use for a
school project. He does not return them.
(4) Mavis prints 200 copies on the office Xerox machine to advertise her lost cat.
(5) Blake takes the cellphone of a colleague and gives it to his girlfriend as
a present.
Rain does not fall on one roof only.
Meaning: Everyone has their difficult moments (Mueni 2020).
Where you able to engage with the activity above? What did you learn from
this activity? Did your view change or not?
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Now that we have examined the different elements of theft, let us consider
how company policy may address this issue.
1.4 COMPANY POLICY

The views expressed by most scholars in corporate investigations are the
following:
Make sure that there is a written policy which sets out the unauthorised conduct
and that the employee is familiar with its content (Claassen 2021; Murphy 2014).
Moreover, the policy must be formulated in such a manner that the misconduct
(theft/stealing) is classified as a serious offence where the company will dismiss
for the first offence. You may also classify the misconduct with other forms of
offences that amount to “dishonesty” and for which a person may be dismissed
for a first offence (Clarke et al 2018).
The importance of a well-drafted and comprehensive company policy cannot

be over-emphasised. If it has no policy about the use of company resources,
a company finds itself in an impossible position if it wants to act against
employees who misuse company resources. Make sure that employees know
the rules and that action is taken when they are broken.
Murphy (2014) also submits that some companies, in their policy on theft,
simply state that stealing is an offence and define theft as “The unauthorised
removal of company assets both tangible and intangible”. Intent is notoriously
difficult to prove and, therefore, companies opt for a definition similar to this
one. For most companies, theft is a dismissible offence.
1.5 INCIDENT
Based on the scenario below, let us consider what you should do when some-
body has allegedly stolen from the company. In the discussion below, I have
made extensive use of the study guide for OVM2602: Investigative principles
for Policing II as well as “The Forensic Investigative Process” (Goss 2013). We
will use this case study to unpack the concepts related to theft later in this unit.
An incident was reported to Mr Reg Abrahams, the HR office manager at M & B

Insurance. One of his administrative staff members, Ms Pinki Moloi, alleged that she
went out for lunch and, upon her return, found that her Dell company laptop and
personal cellular phone were missing. Mr Reg Abrahams reported the matter to the
Risk Management Office and a corporate investigator, Ms Cynthia Khumalo, was
tasked with the investigating the matter.
Cynthia immediately opened a case file and obtained a statement from Ms Pinki Moloi
in which the exact events, the serial numbers and a description of the cellular phone
and laptop were given. Cynthia looked at the footage from the closed-circuit television
(CCTV)/surveillance camera installed above the entrance to the office. She narrowed
her viewing of the footage down to the lunchtime period between 13:00 to 14:00.
Cynthia noticed that Mr John Platt, an office administrator, entered the office with a
rucksack and walked out ten minutes later. Furthermore, she noted that a Dell com-
pany laptop protruded from the open rucksack.
The laptop had the following serial number: MB Insurance # 3325-4554-ZA.
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1.6 CONDUCTING AN INVESTIGATION INTO THEFT

There are many definitions of an investigation. We will use the one by Gilbert
(2010:34) who submits that a “… criminal investigation is a logical, objective,
legal inquiry involving possible criminal activity”. If we consider the first
part of this module (section 1 – disciplinary misconduct), we may say that an
investigation is a logical, objective and legitimate inquiry into a disciplinary
or criminal transgression.
Therefore, it is sound to argue that an investigation is a structured and planned

process. Jones (2021) states that, in large or complex investigations, they compile
a mind map containing names and contact details (of every person relevant to
the investigation); investigation objectives; documents (when relevant); videos
and photos (when relevant); taskings (investigating actions linked to objectives,
time frames and specific deliverables); incidents (or crimes being addressed by
the investigation) with short descriptions of each; suspect information (when
relevant); correspondence; and an investigation diary. This is an incredibly
effective tool when you conduct a meeting with either the investigation team
or the client. Visual aids are of great value during online meetings, which have
become the norm because of the pandemic.
Being a forensic investigator is not easy. You need to be creative and willing to
learn from those who know more than you do. In a corporate space, it is rare
that you, as the investigating officer, are able to immediately investigate the
crime scene without any challenge. You will seldom encounter an untouched
crime scene and will have to think out of the box. This is particularly true
during COVID-19. Social distancing, sanitising and face masks (which makes
interviewing somewhat difficult) can be quite challenging.
For many experienced investigators, the motive of the offender is key. The
motive, they believe, directs an investigation. They also propose that you
develop a hypothesis, an assumption of what happened.
Ask yourself:
Besides what I have been told, what do I think happened? (What is my

hypothesis?)
What do I need to prove my hypothesis? What evidence is available to prove
it? (Motsepe 2020:19).
Do not exclude the complainant as a possible suspect. It could be possible

that Ms Moloi had the company laptop and private cellphone stolen to throw
suspicion off her. Never accuse her of it, no matter what you suspect. If Ms
Moloi were in financial difficulties, there may be corridor talk about it. Ask Ms
Moloi for proof of ownership of the cellphone and get a full description of the
phone and its IMEI number. Ask Ms Moloi to blacklist her phone immediately
and to furnish proof of it. This is standard practice in especially insurance
investigations. Obtain a full description of the computer. These particulars can
help to trace the stolen property and prove ownership later on in the case. A
good thing about modern cell phones is that some of them can be traced, even
if they have been switched off or their batteries have run down. Apple phones
have the feature ‘Find my phone’, which has been used successfully in many
instances to locate them, provided the user activated the ‘Find my device’ option
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on the phone. This service is also available on Samsung and Android phones.
Use this option to trace Ms Moloi’s phone if she has activated it.
According to Locard’s principle, suspects transfer evidence to objects. If you

have resources to capture fingerprints at the scene, do not hesitate to use
them. Use your cellphone to photograph the scene so that you have a record
of it. Save these images on a device that can be protected (Motsepe 2020:20).
Photographing the scene is one of the most important and effective techniques.
Take numerous photographs. Often you notice things on photographs which
you have missed at the scene (Jones 2021).
As you proceed with your inquiry, take meticulous notes of what you hear and
observe. Although it is important, taking notes can be time consuming and can
interrupt the flow of an interview. One simply cannot take notes, formulate
questions, evaluate information and observe someone’s body language at the
same time. Another option to consider is the use of audio and video recorders
to record interviews. The information you get from it is accurate, detailed and
reliable. A novel approach followed by the American police is the use of body
cameras. Recordings can be played back whenever needed (Jones 2021). An
additional idea is to use a recording app such as Otter. The basic version is free
and you can record up to 40 minutes of audio. The best thing about this app
is that it transcribes the sound while it records and you have a printout of the
audio recording afterwards.
If a colleague takes notes, bear the following in mind:
the time that the theft occurred, recorded as accurately as possible. (This
information is valuable because it can help you to identify the suspect or
the individuals that may be involved.)
the details of the person who discovered the theft
a complete list of the stolen property (The stolen property must be described
in detail and the description should include serial numbers and details of
identifying marks. If several witnesses can offer this information, it should
be obtained separately.)
a list of people who had access to the stolen property
if the stolen item was not readily visible, those who knew its location
the reason for placing the property in that location
a list of persons who knew the location of the property
a list of people who were aware of the existence of the property
proof of ownership
suspects and their addresses (It is important to make a note of why a suspect
is under suspicion.)
a list of the possible markets for the property
whether anybody had expressed a strong interest in the item
previous theft complaints made by the complainant or victim (Motsepe
2020:21)
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1.3
Consider the list of items that you need to record in your field notes. Proceed
to the module site and access the blog titled Section 2 Unit 1: Field notes.
Why is it important to make field notes? Share your reasons with the group.
Do you think we can add anything to the list above? Share this with the
group.
At the crime scene, you will be able to hear each person’s version of the story
(Motsepe 2020:20). Get to the crime scene as quickly as possible. As mentioned
earlier, sometimes this is possible only hours or days later. In the scenario,
CCTV/surveillance cameras at the office entrance are mentioned. Get hold of
the surveillance footage and watch it as soon as possible. Maybe the person who
took the laptop and the cell phone did so in full view of the camera. Acquaint
yourself with the facts of the case (confirmed by the CCTV/surveillance footage)
before you conduct the first interviews.
Surveillance footage is probably the most effective investigation tool there is.
We prefer surveillance to CCTV cameras. There is a difference. CCTV cameras
are linked to a recorder. The disadvantage is that criminals can take the recorder
and all the evidence with them. CCTV cameras also have different formats,
are difficult to download and send, and have a limited recording capacity.
Surveillance cameras, on the other hand, are linked to an IP network. The
advantage is that you can remotely access, monitor and manage it on your cell
phone (Jones 2021).
You need to obtain a statement from Ms Moloi of what transpired the morning
of the incident. One option is for her to report the matter to the police who
will take her statement. Then she has to hand you a copy of her statement.
Alternatively, let her write her own statement so that you obtain a pure version
(OPV) of the events (Jones 2021). You will learn more about this in Information
Gathering (FOR2608).
Bear the following in mind:
Always interview the person who filed the complaint first.

Interview any witnesses about the incident.
– In some instances, it is also necessary to ask witnesses about the char-
acter of the person who filed the complaint. Is the person pleasant to
work with? Do things often go missing from the person’s office? Is the
person in financial difficulties?
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– It is important to ask all witnesses the same questions about the alleged
suspect.
Talk to the supervisor of the person who filed the report.
– Learn about friendships and animosities in the office. This may explain
why one person covers for another or why another person would
purposefully try to get somebody in trouble. These sentiments may
either taint or strengthen the veracity of witness statements.
Conduct interviews in a neutral location.
– This cannot be over-emphasised. It is important that the venue
is comfortable and friendly, not accusatory or hostile. It is also crucial
that the interviewed person is informed of the confidential nature of the
investigation. Comply with any COVID regulations.
– Investigators must never discuss the investigations they conduct with
others. This may expose them to disciplinary action by the organisation.
Interviewing strategy
– Always begin by introducing yourself. Tell interviewees who you are and
what you have been tasked to do.
– Start with open-ended questions, obtain a narrative, and then ask specific
questions based on the evidence you have and information provided by
the witness.
– Keep the interview professional and focused on the issue under
investigation.
– Listen attentively to the interviewee and paraphrase sentences, especially
when the meaning is not clear.
– Avoid any display of emotion such as snorting in anger or laughing at
what the interviewee says.
Take detailed notes or record interviews.
– Best practice requires that investigators in the corporate or private spaces
record almost all interviews, have them transcribed and work from them.
– Their notes are short, cryptic and contain formal details needed for the
investigation report.
– Note-taking is important, so too is eye contact. Do not become so
engrossed in note-taking that you forget that the interviewee is a person.
Always end an interview on a professional, friendly note so that you inspire

confidence and can approach the person again if you need to clarify facts. It
cannot be over-emphasised that you should be professional at all times. You
are an investigator who conducts a systematic search for the truth. Do not take
sides, do not lie, and do not judge.
As you progress through the information-gathering process, it is key that

you document all your actions. Police officials use a pocket book. Private or
corporate investigators can use any means to record dates, times, places and
their own actions. According to Jones (2021), who was part of a recent forensic
investigation for a multinational company based in the USA, they followed a
specific protocol. First, investigators were placed on a WhatsApp group. When
investigators arrived at a location, they send a WhatsApp message and a pin
drop location. When they left a location, they did the same. This served as an
investigation diary, a record of their activities and invoice information.
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In study Section 1, unit 2, we addressed the compilation of a research report

and, therefore, we will not do so again. Nonetheless, I want to highlight some
key aspects to remember when capturing information for your report. These
are as follows:
Record the tasks and actions concerning a specific mandated investigation.

This includes a log (e-diary, hard copy diary or an app) of actions undertaken
by specific investigators (if there is a team). If you are working alone, remember
these details: what you did, when you did it and where it was done. It is wise
to state who was present at the time.
Record all the evidence you have gathered and include descriptive notes such
as a summary of a site visit or the content of CCTV/surveillance footage.
Identify all the investigators involved in the investigations and interview
subjects (witnesses and suspects).
Keep a log of all communication between team members. If you are the only
investigator, keep a similar log if you communicate with an office manager,
a team leader or a client.
This is not an exhaustive list. You may add to it at your place of work.
It may be that the hypothesis you formulated at the beginning of the investigation
highlighted a suspect. You may find that the suspect is not linked to the incident
at all. The most important thing to remember when investigating a suspect is to
develop a clear hypothesis. In order to identify a possible suspect, ask yourself
the following three questions:
Means
– Carefully consider whether the suspect had the means (the ability) to
do what he is suspected of.
– Did John Platt have the ability to enter the office to remove the laptop
and cellphone? In other words, was he able to unplug the cable, pick up
the cellphone and take them out of the office?
– If the perpetrator had to climb over a 4 m wall and carry an object
weighing 30 kg over a distance of 1 kilometre, a person in a wheelchair
cannot be a suspect (necessarily – unless they pay someone to do it).
Opportunity
– Did the suspect have the opportunity to commit the crime? Was he in
the proximity of the crime scene when the crime took place?
– Did John Platt have access to the office between 13:00 and14:00?
– If he was with the CEO of the company at that time, then he did not
have the opportunity.
Motive
– Did the suspect have a reason for committing the crime?
– To determine the motive is not as easy as answering the preceding two
questions.
– While financial gain is more often than not the motivation behind
property crime, it is not the only motivation.
– Scorned lovers have been known to frame their ex-lovers (Motsepe
2020:19).
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As the investigator, you should have an open mind about who the suspect
may or may not be. Never take an accusation at face value; the accused may be
innocent. Always ask yourself the Means-Opportunity-and-Motive questions.
In an office where a limited number of people had access to the stolen computer
and cell phone, it is simple to narrow down the number of suspects, even more
so when you have CCTV/surveillance footage at your disposal.
Before you approach the suspect for an interview, let us consider the purpose
of such an interview:
getting the suspect to admit that they committed the crime

determining who else was involved in the crime
determining how the crime was committed or what measures were taken to
circumvent CCTV/surveillance cameras, access control and other measures
Over the past few years, ways of dealing with a potential suspect have changed
quite a lot in the corporate and private environment. Treat every person as you
would treat a witness. Record all the available information and explanations.
Confront a suspect by verifying and asking the person to explain discrepancies
or evidence of wrongdoing. Confessions are seldom obtained during a
confrontation. According to Jones (2021), in insurance investigations, ‘we
verify and clarify’ and do not confront. This is why you never do an interview
until you have the facts of the case in hand.
You are not there to judge or to punish the suspect. You are there to conduct a
systematic search for the truth and to make recommendations to prevent the
re-occurrence of similar incidents. Therefore, as for witness interviews, the
setting must be neutral and the approach non-hostile.
Explain the origin of the complaint to the suspect and state what you have
discovered during the investigation. Inform the suspect that they are the most
likely person to have committed the crime. Then ask the suspect to give their
side of the story.
In the case of John Platt, the evidence is pretty clear. He was found in possession
of the stolen items. He may argue that they were placed in his bag without
his knowledge. If the items were taken to a finger print expert, his finger
prints would, in all likelihood, have been found on both items. It is important
that you record the interview by taking notes and, preferably, have another
investigator present. It is also advisable to write a summary of the interview
with the suspect for the final report. This is presently done for all important
statements of witnesses and suspects (Jones 2021).
You will draft the final report in whatever format is prescribed by your
organisation. Please make use of the format illustrated in study unit 2 of section
1. The pro forma report is comprehensive and provides for all the information
required in an investigative report.
The investigative report stops short of making recommendations for how to

deal with the suspect. You may, however, make recommendations for improved
access control or security measures to prevent further losses. It may be a memo
to all office managers to remind staff to lock their laptops using the security
cable provided and hiding the key.
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Once a decision has been made about the course of action to follow (a disciplinary
process to terminate employment and/or a criminal case), it is important that you
receive correspondence to this effect so that you can keep your investigation file
up to date. If you are an external investigator, then the company or organisation
will, in all likelihood, not inform you of their decision.
If a decision is made to dismiss John Platt, it is vital that the correct disciplinary
process be followed. It is advisable that a person from Human Resources who
has the necessary legal knowledge and experience be approached to manage
the disciplinary process. Were John to be fired and were the correct process
not followed, the company may be held liable. He may even take civil action
against the company and will certainly approach the CCMA with a wrongful
dismissal complaint.
Your work is not done when the investigation has been concluded and the
suspect has been disciplined. The investigation has been an opportunity for
you to identify shortcomings in company policy, processes or procedures. It
may be that the content of a policy has not been effectively communicated to
staff or that the induction of new staff members is ineffective. It may also be
that senior managers’ ‘borrowing’ of a company laptop has been overlooked,
but when juniors do the same, they are disciplined or dismissed.
Proceed to the module site and access the blog titled Section 2 Unit 1: Petty
theft vs serious theft.
Answer the following questions:
Distinguish between petty theft and serious theft.

Should all incidents of theft at work be investigated? In no more than 50
words, please explain your viewpoint.
Restless feet may walk into a snake pit.
Meaning: If someone is idle, there is a likelihood of them getting into trouble

(Mueni 2020).
The values of a company, which may include transparency and ethical conduct,
may not be visible within the company. When staff notice that policy is enforced,
they are less likely to violate it. Policy must be walked and not only talked!
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1.7 OFFENCES RELATED TO THEFT

It is not always easy to prove theft. For this reason, the legislature created five
offences that are all closely related to theft. They are the following (Joubert
2013:149):
“removal of property for use (unauthorised borrowing), which is punishable

in terms of s 1(1) of the General Law Amendment Act, 19563 ;
Contravention of s 36 of the General Law Amendment Act, 19554, which
deals with instances where there are reasonable grounds for suspecting that
a person is in possession of stolen property;
Contravention of s 37(1) of the 1955 Act, which renders it an offence to
receive stolen property;
The common-law offence of knowingly receiving stolen property; and
Offences in terms of the Second-Hand Goods Act5.”
Suppose the laptop was not found in the possession of Mr John Platt and that,
following up on information, you traced the laptop to a second-hand goods store,
called Old Boys’ Stuff, around the corner from the offices of M&B Insurance.
Second-hand dealers who deal in stolen property are known as “fences”.
According to Joubert (2013:151) section 36 of the General Law Amendment Act

(Act 62 of 1955) stipulates that “… any person found in possession of goods
in circumstances in which there is reasonable suspicion that they have been
stolen, and who is unable to give a satisfactory account of his/her possession,
will be committing an offence”.
Since the laptop has a serial number on the bottom and you have the ICT
inventory, indicating that Ms Moloi is the user of this laptop, it will be up to
the owner of the store to explain how it is that the laptop with serial number
MB Insurance # 3325-4554-ZA is in his store.
Since theft is a continuing crime (Joubert 2013:141), the receiver cannot be an

accessory (after the incident/fact) as any attempt to conceal the laptop after
it had been stolen is still theft, because the crime has not been completed. A
bit confusing? Indeed, it is, but the next best thing is to contact the police and
inform them that the owner of the store is in possession of stolen property.
The Second-Hand Goods Act (Act 6 of 2009) stipulates that dealers are to keep
record of all the transactions they conclude. Section 21(1)–(7) of the Act provides
that a register of transactions is to be kept and that the following information
must be recorded in the register:
the identity of the person who sold the goods to the store, which includes
– his or her full name/s, contact telephone number/s and physical address
– how the person’s identity was verified (identity book/driver’s licence)
– the identity number of the person
a description of the goods including any distinguishing mark/s or serial
number
the price the dealer paid for it
3 Act 50 of 1956.
4 Act 62 of 1955.
5 Act 6 of 2009.
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Theft
the number that the dealer affixed to the item (which must be the same at
the number in the register),
the name and signature of the person who purchased the item on behalf
of the dealership
other details of the purchase transaction and particulars of the sale or other
manner of disposal of the item (particulars to include date and time and,
in the event of a sale, the particulars of the purchaser) (Benson 2013:126).
Please see Additional Reading for further information on these offences.
Please visit the module site and access the blog titled Section 1: Unit 0: Social
Justice.
(1) Which of the elements of social justice (access to resources, equity, human
rights, diversity and participation) can you integrate into your investigation?
1.8 SUMMARY
In this study unit, we have discussed the common-law crime of theft. We have
considered how it manifests within a work environment and why it is considered
unacceptable to take company property. In study unit 2 of this section, we will
discuss the crimes of perjury and defeating or obstructing the course of justice
and deal with the legislative guidelines in relation to these crimes.
SELF-ASSESSMENT
The following questions will not be marked. They are for your own learning:
(1) In what category of crime does theft fall?

(2) Are you now able to define theft in your own words? If so, how would
you define it?
(3) How many elements of crime does theft consist of? Name them and briefly
describe each.
(4) Do you now understand how important it is that a company policy
addresses theft in the work place in a comprehensive manner? What are
the alternative transgressions one may include in a policy to address theft?
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2
ST U DY U NIT
Perjury and defeating or

obstructing the course of justice
This study unit will require approximately 3 hours to complete.

120 minutes to complete the four activities and one self-assessment activity
at the end of the unit
In this study unit, we will address perjury and defeating or obstructing the
course of justice. We will investigate ways in which these offences are com-
mitted and examine the legal requirements for these crimes. You will come
across reflective as well as practical tasks. I advise you to do as many of them
as possible online since online collaboration with fellow students enriches
your learning experience. Feedback on the reflective and practical tasks will
only be given online.
Ingwe ikhontha amabala ayo amlhlope namnyama.
Translation: The leopard licks both its black and white spots.
Meaning: Justice should be fair, regardless of one’s social status (Mueni 2020).
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crimes against the administration of justice

the crime of perjury in its three forms
the definitions of perjury
the elements of perjury
the crime of defeating or obstructing the course of justice
the definition of defeating or obstructing the course of justice
when perjury and defeating or obstructing the course of justice is perpetrated
conduct amounting to defeating or obstructing the course of justice
explain what perjury and defeating or obstructing the course of justice entails
provide a definition of common-law perjury, statutory law perjury and
subornation of perjury
give a definition of defeating or obstructing the course of justice
explain the elements that make up the crimes of perjury and defeating or
explain what “the course of justice” entails and what it excludes
explain how to investigate an incident of perjury or/and defeating or
2.1 INTRODUCTION
In an ordered society such as ours, the court system ensures peaceful means of
settling disputes and the 6fair administration of justice (Burchell 2013:831). If
the courts are not respected, our ordered society is at risk. Since the legislature
afforded the administration of justice such high importance, specific crime
categories were written into the statute books to either suppress or prevent
conduct that would weaken the proper administration of justice (Burchell
2013:831). While a number of crime categories were developed to ensure the
proper administration of justice such as contempt of court and scandalising
the court (Lötter 2013:63–65), we will only discuss the following:
perjury
defeating or obstructing the administration (or course) of justice
In the first part of this unit, we will discuss perjury; in the second part of this
unit, we will discuss defeating or obstructing the administration of justice.
6
Joubert (2013:178) maintains that the administration of justice “… refers to the whole
legal process that is completed with the pronouncement by a court of its judgement. In
criminal cases, it starts with the work of the police through to the work of the prosecuting
authorities and the courts.”
110
Perjury and defeating or obstructing the course of justice
Joubert (2013:178) reminds us that since these crime categories tend to overlap,
it is vital that the specific conduct of each activity is thoroughly investigated to
ensure that the offences are distinguished from each other and that the accused
person is charged for the correct crime category.
Perjury is when a person lies under oath (or affirmation) when giving evidence.
This crime often overlaps with the crime of defeating or obstructing the
administration of justice.
Three forms of perjury in South African law can be prosecuted as crimes in their
own right. These are common-law perjury, statutory perjury and subornation
of perjury (Burchell 2013:850, 854–855; Joubert 2013:178–183).
He who has once deviated from the truth, usually commits perjury with as little
scruple as he would tell a lie. (Cicero)
2.2 TYPES OF PERJURY

The three types of perjury are common-law perjury, subornation of perjury,
and statutory perjury (Joubert 2013:178–183; Burchell 2013:850–855; Lötter
2013:65–66). We will now discuss each of them and consider the elements an
investigator has to focus on during the investigation to prove the commission
of the crime. We will first discuss perjury or common-law perjury, as it is also
called.
2.2.2 Perjury
Joubert (2013:178) defines perjury as the “… unlawful and intentional making
of a false statement upon oath, affirmation or admonition in the course of
judicial proceedings, which oath, affirmation or admonition was administered
or accepted by a person competent to do so”. Burchell (2013:850) asserts that
perjury is “… the unlawful and intentional making, upon oath, affirmation or
admonition and in the course of judicial proceedings before a competent
tribunal, of a statement which the maker knows to be or foresees may be false.”
Evidence is to be provided only upon oath or upon a solemn affirmation or a

serious admonition to tell the truth. Geldenhuys, Joubert, Swanepoel, Terblanche
and Van der Merwe (2014:239) contend that no witness may be questioned
unless the oath has been administered. When a witness objects to the oath,
that person will be required to affirm to tell the truth. This affirmation bears
the same “… legal force and effect as if the person making it had taken the
oath” (Burchell 2013:854; Geldenhuys et al 2014:300). In some instances, the
witness may not understand the nature and importance of taking an oath. Such
witness may then be seriously admonished to tell the truth (Burchell 2013:854;
Geldenhuys et al 2014: 300). It is important to remember that perjury applies to
only statements of fact and not to opinions or interpretations (Khumalo 2021).
Captain Sibaya, the spokesperson of the Kagiso Police station, always has to
warn complainants that to lie when making a statement amounts to perjury.
He believes that people who come to the station to report the theft of a cell
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phone and obtain a case number (required by their insurance) often lie about
the circumstances of the theft. It turns out to be damage instead of theft
(Msomi 2017).
Joubert (2013:178) claims that a person commits perjury when that person,
while giving evidence under oath, tells a lie or gives the court a false statement.
Lötter (2013:66) contends that a statement must be made “… in the course of

legal proceedings (whether civil or criminal). False statements made before
an administrative tribunal such as the Broadcasting Complaints Commission
of South Africa, do not constitute perjury because the requirement is that the
false statement must be made during legal proceedings”.
We will now consider the different actions involved in the commission of

perjury. These actions are
the statement
on oath, admonition or affirmation
in the course of judicial proceedings
Let us now discuss each of the actions involved in the commission of perjury.
2.2.2.1 The statement

The statement must be false and the person making the statement must know
that it is false or believe that it is false (Burchell 2013:852–853). It must also
have a bearing on the case (be connected to issues that the court must decide
upon). If the court must decide whether Mr X stole something and the witness
lies about the colour of a floor tile, it is immaterial to the theft but relevant to
the case. If I were to lie about my age in a theft case, it may be immaterial, but
if I were to lie about it in a case in which I claim to be a pensioner, then the lie
is material to the matter at hand.
2.2.2.2 Under oath, affirmation or admonition

Joubert (2013:179) asserts that “… an oath means that a person swears before
God to tell the truth”. If a person does not believe in God or has an objection
to swearing before God, such a person may affirm to tell the truth, which is
called an affirmation (Burchell 2013:854; Joubert 2013:179). When a person
making a statement does not understand the importance of the oath or the
affirmation, then such a person is admonished to tell the truth. It usually occurs
when young children or mentally challenged persons testify.
112
Judicial proceedings
The making of a statement (under oath, affirmation or admonition) must
take place during judicial proceedings. Judicial proceedings imply not only
proceedings in a court of law7 but also “… proceedings of a judicial character
before tribunals of various kinds other than courts of justice in the narrow
sense” (Burchell 2013:854).
It is important to note that the court decided in S v Beukman 1950 (4) SA 261
(O) at 263 that “… extrajudicial affidavits made to police officials, for the
purpose of, or in the course of, their investigations of any crime, are not made
‘in the course of judicial proceedings’” (Burchell 2013:854; Joubert 2013:180).
This means that if you intentionally make a false statement to a police official
during the investigation of a crime, you cannot be charged with perjury. You
may, however, be charged in terms of section 9 of the Justices of the Peace
and Commissioners of Oaths Act, which renders it an offence to make a false
statement intentionally to a police official or a justice of the peace (Joubert
2013:180). This aspect was discussed in FOR 1501, so we will not address it
again. The moral of the story is: do not lie.
It is important to note that perjury is not committed in relation to disciplinary

proceedings. Mnisi (2009:310–311) submits that in the case of S v Thomson,
the court found that a disciplinary inquiry held by the South African Medical
and Dental Council was of a quasi-judicial nature and, therefore, not judicial
proceedings as in a criminal or civil case. Furthermore, this forum is not bound
by strict rules of evidence and acts in only a quasi-judicial manner (Mnisi
2009:311). Perjury can, however, be perpetrated when witnesses and others
appear before the Commission for Conciliation, Mediation and Arbitration
(CCMA).
2.3 STATUTORY PERJURY

Since it is not always easy to prove perjury (under common law), the legislature
provided for statutory perjury (Burchell 2013:855; Joubert 2013:182). For statutory
perjury, only two conflicting statements about the same matter made under oath
(orally or in writing) are required. Section 319(3) of the Criminal Procedure
Act renders it an offence to make two conflicting statements. It reads:
If a person has made any statement on oath whether orally or in writing, and
he thereafter on another oath makes another statement as aforesaid, which is
in conflict with such first-mentioned statement, he shall be guilty of an offence
and may, on a charge alleging that he made the two conflicting statements,
and upon proof of those two statements and without proof as to which of the
said statements was false, be convicted of such offence and punished with the
penalties prescribed by law for the crime of perjury, unless it is proved that
when he made each statement he believed it to be true (Joubert, 2013:182).
7
Judicial proceedings are “… proceedings in which rights are legally determined and lia-
bility imposed by a competent authority upon a consideration of facts and circumstances
placed before it” (Burchell, 2013:854).
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For statutory perjury, there must be two conflicting statements made under
separate oaths. In essence, this means that the person was under oath on two
different occasions (Joubert 2013:182). However, it is not necessary that they
be made in the course of judicial proceedings as is required for perjury. This
means that in extra-judicial statements made under oath, a person may commit
statutory perjury (Joubert 2013:183).
In South African Criminal Law and Procedure, Volume III: Statutory Offences,
CD-Rom and Intranet: ISSN 2218–Jutastat, e-publications at C2 page 25, it is
stated that:
“Although this offence is often called ‘statutory perjury’, that description is in-
accurate, for it is an independent substantive offence and the perjury rules (for
example that requiring corroboration) do not apply. The essential elements of
the offence are: (i) a false statement. (ii) in an affidavit, affirmation, or solemn
or attested declaration. (iii) made before a competent person. (iv) mens rea”
(Hoctor, Cowling & Milton as cited by Jones 2021)
In the citation above, “…Mens rea, a person’s awareness of the fact that their
conduct is criminal, is the mental element, and actus reus, the act itself, is the
physical element” (Farlex 2021).
2.4 SUBORNATION OF PERJURY

Like common-law perjury, subornation of perjury is the unlawful and inten-
tional making of a false statement during the course of judicial proceedings
by a person who is under oath, affirmation or admonition with the difference
that the person who makes a false statement is induced thereto by another
(Burchell 2013:854; Joubert 2013:181).
Subornation of perjury occurs when one person, through bribery, intimidation

or any other means, induces another to commit perjury. Jurists are not in
agreement on this. Whereas some are of the opinion that the person accused
of the subornation should be charged with defeating the ends of justice, others
believe that the accused can only be charged with attempt to defeat the ends
of justice (Joubert 2013:181). So, even in the law there is not always 100 per
cent clarity.
The three factors that play a role in the subornation of perjury are:
the specific conduct

unlawfulness
intention
We will now explore the three factors.
2.4.1 The specific conduct

For this type of perjury, the prohibited conduct comprises one person inducing
or forcing another to lie under oath in the course of judicial proceedings. The
court does not have to, first, find the person forced to lie guilty of perjury before
finding the person who coerced him or her into lying guilty of subornation.
114
The person being forced may rely on necessity as a ground of justification to

explain why the lie was told (Joubert 2013:181).
2.4.2 Unlawfulness
Joubert (2013:181) maintains that the individual who forced someone to lie,
must have acted unlawfully. In other words, the proverbial gun must not have
been held to his or her head to force him or her to induce another person to lie.
2.4.3 Intention
Joubert (2013:181–182) explains that the person accused of this crime must have
acted with intent; that is, the inducer must knowingly have forced the other
individual to lie under oath. Further to this, Joubert (2013–182) asserts that
it is sufficient if the accused person foresaw the possibility that the “request”
to lie may have ended in the person lying under oath. Thus 8 dolus eventualis
is sufficient.
2.1
Below, I have provided you with several short case studies. Each scenario deals
(or does not deal) with a different form of perjury. Read each one carefully and
then answer the following questions on the module site under the blogs section:
A: Mrs Bender made an affidavit to the police about a vehicle accident she
was involved in. It later turned out that she lied about the cause of the
accident.
B: Mr Khuna made two statements as a witness in a criminal trial. The facts
in the two statements differ considerably.
C: Ms Pillay made an affirmed statement in a civil court that her employer
harassed her sexually. She was coerced by her employer’s ex-wife to make
these allegations.
D: Mr Van der Merwe lied during a disciplinary hearing in which his wife
was accused of the unauthorised use of company property.
F: Mrs Govender, a witness in a case of armed robbery, lied under oath (in
her statement) about her marital status. The lie was revealed during the
criminal trial.
Please visit the module site and access the blog titled Section 2: Unit 2: Perjury
or not?
8 Dolus eventualis is direct intention (Joubert 2013:79).
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Are you able to identify which of the case studies amount to perjury and
which do not?
Briefly indicate which of the case studies amount to perjury, mention the
type of perjury and provide reasons for your answers.
Identify which of the case studies do not amount to perjury and provide
reasons for your answers.
Read at least two other blogs and respond to at least one of them. Remember
Now that you have a sound understanding of the elements of perjury, let us
consider how one investigates such an incident.
2.5 INVESTIGATION
Please read the case studies below. Each of them deals with a different form of
perjury. Are you able to identify the form of perjury? If so, do you think you will
be able to investigate each of these cases? What type of evidence is required
for each of these case studies? Draft a list of what you will have to prove and
what you will need to prove it. This should take you about 20 minutes.
CASE STUDY 2.1:
Mrs Andriette Govender, the receptionist at R&D Development, gave a statement

under oath to a police investigator about the theft of her cellphone during her tea
break. She said in her statement that the last time she used it was at 10:00 when
she took a call from her husband. In court she changes her version of the events and
says she spoke to her husband at 13:00 that day.
CASE STUDY 2.2:
Mr Bill Venter, the site manager at V&A Construction, testified under oath at a
criminal trial that he was in his office at the time of the alleged assault and that he
saw through his office window how Mr Jakes Shabalala beat Mr Alfred Ndou to
the ground. Later in the same trial, Ms Bam alleges that Mr Venter was with her
at the time of the assault and could not have witnessed anything since her office is
at the back of the building, away from the site of the alleged attack. This is verified
by CCTV footage.
2.5.1 The investigation: case study 1

For case study 1, consider the requirements for statutory perjury. For the
crime to be completed, there must be two conflicting statements about the
same thing made under two different oaths. Thus, the evidence required will
be the two sworn statements. The law does not require proof of which of the
two statements is true or false; it merely requires them to be contradictory or
conflicting. Therefore, the mere production of the two conflicting statements
showing the contradictions should be sufficient to secure a conviction.
116
Furthermore, you must take a sworn statement from the two commissioners of
oaths who must state the office they hold and must give their rank or designation,
position, appointment and area of appointment. They must further state that
they administered the oath or affirmation correctly and that the deponent was
sober and in full control of her senses at the time.
2.5.2 The investigation: case study 2

In case study 2, the requirement for perjury is lying under oath during the
course of judicial proceedings. First determine who the complainant is. Because
it is your case, you will obviously be the complainant.
Your statement is the founding statement because it sets out what happened
and what the result was. You will then have to obtain a statement from the
presiding officer stating that the witness was properly sworn in by him or her
and that it was in the course of a criminal trial. You will also have to obtain an
extract from the record of the proceedings certified to be correct by the person
who typed it. This is usually an annexure to the presiding officer’s statement.
Further to this, you will have to gather evidence from Ms Bam about Mr Venter’s
movements. Thanks to cellphone technology, you may be able to position Mr
Venter at the rear of the site and not where he alleged he was. This can be
supported by the CCTV/surveillance footage.
It is rare for cases of common-law perjury to be made against people who lie in
court. When this does happen, the magistrate addresses the matter. Statutory
perjury is much simpler since two conflicting statements are made under oath
at different times about the same matter.
When this occurs, note the following:
Basdeo (2010:205-206) advises that, when investigating statutory perjury, the

following statements or (other) documents relevant to the matter are to be
obtained.
Seize the original statement made by the person who committed statutory
perjury.
Obtain a statement from the person who captured the original statement.
In this statement, the office of this person, namely a commissioner of oaths,
must be indicated.
An affidavit from the presiding legal officer that the original statement of
the suspect was correctly taken down by a competent commissioner of oaths
as either an affidavit or an affirmed statement.
Obtain a copy of the records of the tribunal (the court) in which the perjury
statement was made and have this copy certified as a true reflection of the
original.
If the incident was recorded (on tape or a transcription of it), obtain statements
from either the transcriber or the recorder to compare it with the words of the
person who committed perjury. This testimony must be backed up by either
the tape recording or the transcription, which were seized in the prescribed
manner and held in safe custody (or sent for analysis). For this evidence to
be admissible, the continuity of possession must be proved.
Obtain a statement from the second presiding officer to verify that the suspect
was under oath when the conflicting statement was made.
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If an interpreter was used, obtain an affidavit from the interpreter that the
translation reflected the exact words of the suspect.
This concludes our discussion on perjury. As mentioned earlier, perjury is

closely related to the crimes of defeating or obstructing the course of justice.
We will now discuss these crimes and consider how they manifest. We will
then briefly touch on an investigation according to the seven steps given in
unit 1 (Theft) of this section.
2.6 DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE

Joubert (2013:183–184) argues that these crimes take place before, during or
after a trial and relate to any illegal act to undermine the course of justice.
They usually overlap with other crimes. I want to emphasise that these crimes
relate to only the administration of justice in civil and criminal proceedings
(Mnisi 2009:310), which include proceedings presided over by the Commission
for Conciliation, Mediation and Arbitration (CCMA) but exclude disciplinary
proceedings.
But before we consider this aspect, we need to examine the issue of justice as
we know it. Please click on the link https://bordaslaw.com/blog/history-lady-
justice-and-scales-justice and read up on Lady Justice and the symbolism
represented in the image.
Once you have read about Lady Justice, please visit the module site and access
the blog titled Section 2: Unit 2: Lady Justice versus Social Justice: a complicated
or complimentary relationship?
After reading the literature on Lady Justice and re-reading the literature on
Social Justice, please share your views on whether these two are mutually
exclusive (applying one and ignoring the other) or mutually inclusive
(applying both). Your discussion should not be longer that 200 words and
you must substantiate your answer.
118
“Defeating or obstructing the course of justice consists in unlawfully performing

any act that is intended to defeat or obstruct the course of justice and that does
defeat or obstruct the due administration of justice” (Burchell 2013:832; Joubert
2013:184). Joubert further declares that this crime consists of two forms of
conduct, namely defeating and obstructing (Joubert 2013:184). Although they
are closely related, obstruction is less serious than defeating. A person accused
of either one of the two is usually charged with “defeating or obstructing” the
course of justice to improve the chances of a conviction (Joubert 2013:184).
The fundamental elements of these crimes are (Joubert 2013:184–185):
Defeating
The conduct of a person can be termed “defeating the course of justice”
only if it did, in effect, defeat the course of justice. In other words, only if a
person’s conduct or wilful omission caused the court to make an incorrect
conclusion and an innocent person is convicted of an offence. Consequently,
the course of justice has been defeated in that an innocent person has been
sentenced for a crime they did not commit. The focus of the conduct in this
crime is on the outcome of proceedings.
Obstruction
Obstruction occurs when the normal proceedings of the criminal justice
process are hindered, to a considerable degree, from progressing. This may
include unnecessary delays in the court case or continuous postponements.
Therefore, the focus of this conduct is on the process.
Administration of justice
For these crimes, it is necessary that the administration or course of justice
was obstructed or defeated. In the case of S v Mene 1988 (3) SA 641 (A), the
court found that the administration of justice can also be impeded during
the pre-trial phase; in other words, during the normal course of a police
investigation and before the decision is made to hold a trial.
It would appear that it is sufficient to render the conduct a crime if the
accused foresaw the possibility that their conduct would interfere with the
administration of justice process.
As mentioned earlier, Mnisi (2009:310) argues that the administration of
justice means the actual administration of the judicial proceedings in either
a criminal or a civil trial. While it would appear that the crimes of either
defeating or obstructing the course of justice is possible only once the actual
judicial proceedings are pending, some South African courts have extended
this to include all aspects of the pre-trial administration of justice (Mnisi
2009:312).
2.6.1 Discussion
What if somebody who attempted to defeat or obstruct the course of justice was
stopped? Joubert (2013:185) reminds us that for either of the two crimes, the
administration of justice should have been obstructed or defeated. Therefore,
if a person is caught out either tampering with evidence or committing perjury
to give the accused an alibi, justice has not yet been defeated or obstructed.
The reasonable charge would be an attempt to either defeat or obstruct the
course of justice.
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Conduct which defeats or obstructs the course of justice includes influencing

or interfering with witnesses (by threatening them); tampering with evidence
(by replacing seized evidence with other evidence); and even obstructing the
police in the discharge of their duties (by giving the police false information
knowing that it is false). Obstruction or defeating the ends of justice is a seri-
ous offence. When you investigate employees, their friends may try to either
obstruct or defeat your investigation, especially when you investigate criminal
offences and conduct entire investigations before handing the cases over to the
police to institute criminal proceedings. Be aware of this.
2.3
Please visit the module site and access the blog titled Section 2: Unit 2: My
thoughts on the obstruction of justice.
What did you know about defeating or obstructing the course of justice
before you began this module?
Describe each of these crimes in your own words.
2.7 THE INVESTIGATION

Let us consider what you, as the investigator, should do to investigate the crime
described in case study 2.3 below.
CASE STUDY 2.3
You are the in-house investigator at ABC International. Mr Whitehead is the

primary suspect in a theft case which you are investigating under a mandate
issued by the risk manager. You have already opened a theft case with the
police and are conducting the in-house investigation before handing the
case over to a police detective. To prove Mr Whitehead’s involvement, you
will require the CCTV/surveillance footage of the evening in question. Mr
Whitehead has gained access to the archive room and removed the memory
card from the archive folder, which was in an open cabinet in the adminis-
trator’s office.
When you request the CCTV/surveillance footage of the evening in question, it

cannot be found. The last person to access the archives is listed in the archive
register as Mr Whitehead. You report this to the risk manager and he advises
and mandates you to add the theft of the memory card, besides obstructing
or defeating the administration of justice, to the scope of your investigation.
Remember, there must, first, be an incident before there can be an investigation.

Do not make yourself guilty of investigating people based on rumours or hear-
say. So the incident is your starting point. But you have to consider not only the
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incident, but also the company policy or law that has been violated. We will
discuss only the investigation of the theft of CCTV footage mentioned in the
scenario and not the original theft that gave rise to this incident. You must also
adhere strictly to the COVID-19 regulations that your company has developed
for staff. Failure to adhere to them can land you in hot water (in trouble).
An old woman is always uneasy when dry bones are mentioned in a proverb. Meaning:
your conscience will judge you when you are guilty in some crime, and it is being said
now (Amaechi 2021).
Let us assume that the company policy provides for the investigation of situations
when a law has been broken. In this instance, company property (the memory
card containing CCTV footage) has been stolen or removed from site without
proper authorisation. The policy states that no person may remove company
property (which includes computer equipment such as memory cards) from
the premises without written consent by their immediate office manager. The
policy is also clear about where and how the memory cards containing the
CCTV footage must be stored and what process one is to follow to access one
or more memory cards. You have a mandate to open a criminal case of theft
and possibly one of obstruction of justice, which you do. The removal of the
card is an act of theft in itself. If Mr Whitehead removed the card/s during the
investigation and after he had realised that you would look at the footage, it
can be a case of obstructing the course of justice.
Another aspect to consider is who needs to know about your investigation.

If an incident involves two or more people, the relevant staff manager needs
to be informed. If an allegation involves a senior person at the organisation,
an appropriate senior executive at the organisation should be informed of the
investigation. In this instance, the risk manager has been informed since he
issued the mandate. You must also determine exactly what the policy says about
the unauthorised removal of CCTV memory cards from the company premises.
The objectives of any investigation or inquiry are to:
identify the problem

establish who is allegedly involved
determine whether the conduct is a violation of company policy or law
For internal matters (disciplinary hearings), the standard of proof differs from
that required for a criminal matter. This is an important consideration since it
impacts on the type of evidence you gather and the manner in which you gather
it. It is standard practice to apply the best-possible-evidence rule. Therefore,
you conduct an investigation from which criminal and/or civil (disciplinary)
proceedings can result. The same statements or evidence can be used for all
of these tribunals. You interview in one way and take statements in another
way. The rule is always the best possible evidence (Jones 2021).
Since your aim is to hand over a fully investigated case to a police detective,
the standard of proof must be beyond reasonable doubt for a criminal trial.
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Ask yourself what type of information you need to meet the above objectives.
Plan your investigation around gathering the following facts:
Who was involved?

What took place?
Where did this happen?
When did this happen?
Why or how did it happen?
The last question is especially important if you need to prevent similar incidents.
If you work alone, determine which activities need attention first. You can now
develop a plan and set a timeline to ensure effective time management.
In some organisations, teams, not individuals, conduct investigations. At

this stage, it may be necessary to brief the investigators in terms of projected
outcomes and the decision-makers as well because they will have to decide
based on your report. You may even draft a preliminary report, which is attached
to the final report. If your findings in a preliminary report differ from the end
result, you will have to explain yourself. In this instance, less is more.
Once the decision-makers have given their approval for the formal investigation,
you need to decide how you will gather information. You may follow either one
or a combination of the following six methods:
interviews
research and audit
physical surveillance
electronic surveillance
forensic analysis
undercover research
It is quite possible that investigators working within organisations have never

used techniques such as surveillance (electronic or physical) or forensic analysis
(fingerprints or DNA). On the other hand, an organisation may have hired
an external private investigator to conduct these kinds of investigation as
corroborating evidence in complex and important cases.
In the scenario, CCTV/surveillance cameras were installed in the offices. Thus,

it would be wise to get hold of the CCTV/surveillance footage of the evening
on which the CCTV/surveillance footage was removed as well as the CCTV/
surveillance footage covering the entrance to the archives. Mr Whitehead took
the memory card of the CCTV footage of the evening in question (the evening
of the original theft) but forgot to also take the memory card of the CCTV
footage of the entrance to the archives (when he went in to steal the previously
mentioned memory card). Seize these memory cards and peruse them as soon
as possible. Remember to follow company policy concerning the safeguarding
of such evidence during the investigation and before it is presented as evidence
in a trial. In this scenario, it is evident why surveillance cameras with off-site
hosting of recordings are preferred: because footage cannot be stolen.
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Interviews are the most common data gathering strategy during investigations.
To conduct an effective interview, various guidelines are suggested. We will
focus on the following six guidelines:
Always interview the person who filed the complaint first; in this case, the
desk clerk who is responsible for the archives room.
Interview any witnesses to the incident.
– In some instances, it is necessary to ask witnesses about the character
of the person who is allegedly involved. Is the person pleasant to work
with? Do things often go missing from the person’s office? Do they know
if the person may be going through financial difficulties?
– Do they think this person will cover for somebody else?
Talk to the supervisor of the person allegedly involved.
– Learn about friendships within the office. This may explain why one
person would cover for another or purposefully try to land another in
trouble. These aspects may either taint or strengthen the veracity of
witness statements.
Conduct interviews in a neutral location.
– This cannot be over-emphasised. The venue should be comfortable and
friendly, certainly not accusatory or hostile. It is also important that the
person being interviewed is informed of the confidential nature of the
investigation.
– Investigators must not talk about the investigations they are conducting.
This may expose them to disciplinary action by the organisation.
Start with open-ended questions, obtain a narrative and then ask specific
questions.
– Always begin with an introduction. Tell interviewees who you are and
explain what you have been tasked to do.
– Keep the interview professional and focused on the issue under
investigation.
– Listen attentively to the interviewee and paraphrase sentences, especially
when the meaning is not clear.
– Avoid signs of overt emotion such as snorting in anger or laughing at
what the interviewee says.
Take detailed notes during the interviews.
– While note-taking is important, so too is eye contact. Do not become so
engrossed in taking notes that you forget that the interviewee is a person.
Always end the interview on a professional, friendly note to inspire confidence

and ensure that you can approach the person again if you need to clarify facts.
Be professional – you are an investigator doing a systematic search for the truth.
Do not take sides, do not lie, and do not judge.
As you gather information, document all your actions. In study unit 2 of section
1, we addressed the compilation of an investigative report and will not do so
again. I want to highlight some key aspects you have to remember when you
capture information for your report. They are the following:
Record the tasks and actions taken with regard to a specific mandated
investigation.
– This includes a log of actions undertaken by each investigator (if there is
a team). This is similar to an investigation diary. Jones (2021) mentions
that in his environment, investigators keep an A4 book to record their
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activities, like the pocket book police officials use. Interviews, actions,
and so on are noted in it.
– If you work on your own, record what you did, when you did it and where
it was done. It is wise to mention who was present at the time.
Record all the evidence gathered and give a description of a site visit or the
content of CCTV/surveillance footage.
– For large or complex forensic investigations, create a list of annexures
(attached as an annexure) and a list of documents (attached as an
annexure).
– List of document headings:
 number
 date received
 source
 type of document
 description of document
 comments
 investigative action
Identify all the investigators and interview subjects (witnesses and suspects).
Keep a log of all important communication among team members. If you
are the only investigator, keep a similar log of communication with an
office manager, a team leader or client. Although this is seldom required,
the investigation diary (mentioned above) usually contains a record of all
relevant and pertinent communications.
This is not an exhaustive list and you may add to it based on how you go about
your duties.
It may be that the suspect is known from the start such as Mr Whitehead in
the theft investigation. With the additional incident, which may or may not be
theft, he becomes the first suspect along with those close to him with access
to the archive room. When investigating a suspect, you must have a clear idea
of what happened and must link this individual to the occurrence.
To identify a possible suspect or investigate a case against a suspect, you must

ask yourself three questions. They are the following:
Means
– Carefully consider whether the suspect had the means (the ability) to
do what he is suspected of.
– Did Mr Whitehead have the ability (means) to enter the archive room
and remove the CCTV memory card on the evening of the theft? In other
words, was he able to enter the archive room, look for and retrieve the
CCTV memory card, and remove it from the archive room?
– If the suspect had to have an access card or sign in a register to enter the
archive room, it must have been someone who knows how to enter the
room, access the system, and retrieve the CCTV memory card.
Opportunity
– Did the suspect have the opportunity to commit the crime? Was he near
the crime scene when the crime took place?
– Did Mr Whitehead have access to the archive room before you requested
the CCTV footage and were informed that it was missing?
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Motive
– Did the suspect (Mr Whitehead) have a reason for committing the second
incident of theft (removal of the CCTV footage)?
– In this instance he did. Remember that, sometimes, the motive is not
apparent.
– In a number of incidents money was not the motive behind crimes but
self-preservation or revenge taken by scorned lovers.
Remember that, as the investigator, you should have an open mind about
who the suspect may or may not be. Never take an accusation at face value;
the person may be innocent. Always ask the Means-Opportunity-and-Motive
questions. Because a limited number of people had access to the archive room,
it is easy to narrow down the number of suspects. This is even easier if you
have CCTV/surveillance footage showing a specific suspect (in this instance,
Mr Whitehead) at the scene.
Before you approach the suspect for an interview, let us consider the purpose
of the interview.
Obtain as much information as possible. (The person who committed the

crime has the most information about it.)
Get the suspect to admit that he committed the crime.
Determine who else was involved in the crime.
Establish how the crime was committed; that is, what measures were taken
to access the archive room and to access the system.
You are not there to be the judge and the jury or to punish the suspect. You
conduct a systematic search for the truth and, in the process, make recom-
mendations to prevent similar incidents. Like that of witness interviews, the
setting must be neutral and the approach friendly.
Explain the origin of the investigation (the missing CCTV memory card) and
ask him what he knows about the memory card. The CCTV/surveillance foot-
age perhaps shows that only he and two colleagues accessed the archive room
(after the initial theft and the discovery of the missing CCTV memory card). Of
the three, he is the only one who could access the CCTV footage system and
retrieve the specific time-stamped memory card. You may even have CCTV
footage which shows him leaving the archive room. Allow him to tell his side
of the story and commit himself to that version. Remember that he remains a
witness until he no longer is one.
Consider the following:
Never confront him before you have interviewed him about everything
he wanted to say (even lies). Most convictions stem from the stories provided
by the suspects themselves and from disproving them. The suspect may also
make admissions, for example, “I was in the archive room”. This admission
places him in the archive room. Or he might lie and say, for example, “I never
entered the archive room” and you can prove that he did.
Very important, never present your evidence too early by, for example,
showing him the CCTV/surveillance footage of his entering the archive room.
Your evidence would give him the opportunity to give the lie to your evidence.
So keep your cards (evidence) close to your chest (Jones 2021).
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Record the interview using a voice/video recorder and, preferably, have another
investigator present. By the time you are ready to confront Mr Whitehead, you
no longer take notes, you make recordings.
The initial interview with Mr Whitehead may end without any confrontation.
You then need to collect further evidence and interview him again. This is when
you have to be more confrontational to verify the facts of his story. It is advis-
able to write a summary of the interview with the suspect for the final report.
Planning your initial interview will ensure that you ask all the questions you
need to ask. If you are under pressure during the interview, it is easy to forget
some of the questions you wanted to ask.
When you reach this stage of the investigation, you draft the final report in
the format prescribed by your organisation. You may follow the format given
in study unit 2 of section 1 if your company does not have one. The pro forma
report is comprehensive and provides for all the required aspects in an inves-
tigative report.
The investigative report stops short of making recommendations about how

to deal with the suspect. Be mindful that not all companies will request you to
make recommendations. Jones (2021) advises that you should never be scared
to make recommendations about an employee or suspect, as long as they are
based on the facts and evidence in the report. This, in my opinion, is a mistake
investigators who mistrust their own abilities often make. It is better to not
make any recommendations than to make watered-down recommendations.
Then you are dishonest. (Remember the words of an oath – tell the truth, the
whole truth and nothing but the truth.)
You may, however, make recommendations about access control or other se-
curity measures at the archive room to prevent similar incidents.
Since this incident forms part of a bigger investigation, you will have to include
it in the final report. Every report drafted before your final report, should be
attached to it. You have to refer to material information in these reports, es-
pecially when it differs from your own findings (Jones 2021). Once a decision
has been made about the course of action to follow against Mr Whitehead,
(perhaps a disciplinary process to terminate employment or a criminal case) it
is important that you receive correspondence to this effect so that you can keep
your investigation file up to date. In this instance, the company plans to pursue
a criminal case against Mr Whitehead for the original theft. The additional
criminal charges (theft of the CCTV memory card and obstructing or defeating
the course of justice) should be included. If you are an external investigator,
the company will, in all likelihood, not inform you of their decision.
If a decision is made to dismiss Mr Whitehead, it is important that the correct

disciplinary process be followed. It is advisable that a person from the human
resources department who has the necessary legal knowledge and experience
be approached to manage the disciplinary process. Were Mr Whitehead to be
dismissed and the correct process was not followed, the company may be held
liable. He may even institute civil action against the company. The case of ob-
structing or defeating the ends of justice would not be part of the disciplinary
trial but may be relevant if the matter ends up at the CCMA.
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Your work is not done when the investigation has been concluded and the
suspect has been disciplined. This is an opportunity for you to identify flaws
in the company policy, processes or procedures. It may be that the content of
a policy has not been effectively communicated to staff or that the induction/
onboarding of new staff members is ineffective. Or that the company values,
which may include transparency and ethical conduct, are not visible in the com-
pany. When staff notice that policy is enforced, they are less likely to violate it.
It is important that policy is walked and not just talked!
2.4
Please visit the module site and access the blog titled Section 2: Unit 2: What
I would do.
Has an outside person or colleague ever tried to obstruct or defeat what you
were doing as part of your investigation?
In no more than 200 words, please share your experience with us. Tell us
what you did about it, why you chose that course of action and what the
outcome was.
If you have never been in this position before, image yourself in such
a position. The person you investigate is a powerful senior manager at
your company who interferes with your witnesses. What would you do
about it? Motivate your action.
Your discussion should not be more than 200 words.
When a man makes a fence, you will know his level of wisdom.
Meaning: Your knowledge always is revealed in your activities (Amaechi 2021).
2.8 SUMMARY
Perjury and defeating or obstructing the course of justice may seem like insig-
nificant crimes, but when we lose faith in our justice system, we might as well
throw in the towel. It is incumbent on each one of us to ensure that our conduct
is both ethical and legal. This is especially true when you are responsible for
law enforcement and investigations in whatever form.
In study unit 3, we will discuss harassment and sexual harassment, and will
examine how they manifest within a corporate environment.
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SELF-ASSESSMENT
Ensure you have achieved each of the following outcomes for the study unit:
Can you identify crimes against the administration of justice?

Are you able to name the crime of perjury in its three forms?
Can you define perjury and explain its elements?
Are you able to explain the crime of defeating or obstructing the course of
justice and define it?
Can you identify when perjury and defeating or obstructing the course of
justice are perpetrated?
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3
ST U DY U NIT
Harassment and sexual

harassment
TIME REQUIRED FOR THIS STUDY UNIT

In this study unit, we will address harassment and sexual harassment as defined
in the Protection from Harassment Act 17 of 2011 and the Employment Equity
Act 55 of 1998. We will consider some of the ways in which these offences may
be committed and also examine the legal requirements for these crimes. We will
briefly mention the crime of rape because sexual harassment may culminate
in rape, although we will not address its investigation.
that you do as many of them as you are able to online since online collaboration
with fellow students enriches your overall learning experience. Feedback on
the reflective and practical tasks will only be given online.
A roaring lion kills no one.
Meaning: You cannot achieve or gain anything by mere sitting around and just
talking about it (@karaboGerald).
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In this study unit, you will learn about the following:
harassment
sexual harassment
the definition of these crimes
how they manifest within a work environment
the protection order issued in terms of the Protection from Harassment
Act 17 of 2011
policing powers conferred by the Act
At the end of this study unit, you should be able to
identify conduct which amounts to harassment or sexual harassment

explain what harassment and sexual harassment are
provide definitions for these crimes
identify the perpetration of these crimes based on scenarios
explain how you would conduct an elementary investigation into an alleged
incident of either harassment or sexual harassment
investigation of harassment or sexual harassment in an investigative report
explain the importance of company guidelines in preventing and dealing
with harassment or sexual harassment
3.1 INTRODUCTION
One of the principles of the South African labour environment is that employers
have a legal duty to ensure a safe working environment for their staff (Hugo
2021). This is set out in the Labour Relations Act. Unfortunately, for many men
and women nothing has come of it (Smith 2018).
Recent research revealed that “Some 30% of South Africa’s women (and 18% of
its men) have been victims of unwanted sexual advances in the workplace…”.
Moreover, “About 57% of women and 47% of men claimed that the unwanted
advances came from a workplace peer, while 26% of women reported that a
boss or superior was the source of the harassment” (Smith 2018).
In October 2017, the #METOO movement brought the issue of sexual harassment
to the fore on social media. In 1996 Tarana Burke started it in reaction to the
rape culture in America (Santiago & Criss 2017). Today the purpose of this
movement is to highlight the prevalence of harassment and sexual harassment
in the workplace (Van Wyk 2019).
In South Africa, this movement highlights how vital it is that employers adhere
to legislation pertaining to sexual harassment with specific reference to the
Employment Equity Act 55 of 1998 (the ‘EEA’); the Code of Good Practice on
Sexual Harassment cases in the workplace (the ‘Code’) (Van Wyk 2019); and
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Harassment and sexual harassment
the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of

2000 (PEPUDA).
Research conducted in 2018 by the Independent Polling System of Society

(IPSOS) showed the following global trends in sexual harassment:
FIGURE 3.1
Graph showing the top issues faced by women and girls globally
FIGURE 3.2
Graph showing the top issues faced by women and girls per country
(IPSOS 2018).
These figures are a chilling reminder that even in a constitutional democracy

such as ours, gender inequality, unfair discrimination and victimisation is still
to be reckoned with.
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It takes a whole village to raise a child.
Meaning: Society is responsible for the moral characters it creates and everyone in
a community should be responsible for helping to train a child irrespective of who
the parents are; offering correction where it is needed (@karaboGerald 2021).
REFLECTIVE ACTIVITY SECTION 2: UNIT 3.1
This activity should take 30 minutes.
Please consult the two graphs above (figures 3.1 and 3.2). Visit the module
site and access the blog titled Section 2: Study Unit 3: Harassment and sexual
harassment.
Are you surprised by figure 3.1?

Please elaborate on your answer in no more than 50 words.
Do you think South Africans in general are tolerant of practices which
amount to harassment or sexual harassment? Please expand on your view
in no more than 50 words.
3.2 LEGISLATIVE PROTECTION

The constitutional right to equality is protected by several pieces of legislation
in South Africa. We will briefly touch on the Protection from Harassment Act
17 of 2011; the Promotion of Equality and Prevention of Unfair Discrimination
Act, 4 of 2000 (PEPUDA); and the Employment Equity Act, 55 of 1998 (EEA).
Section 9(4) of the Constitution mandates the PEPUDA and, therefore, this
legislation has special constitutional status (SAHRC 2017:7).
Both the Employment Equity Act 55 of 1998 and the Protection from Harass-
ment Act 17 of 2011, which came into operation in April 2013, provide a legal
remedy for victims of harassment and sexual harassment. Hugo (2021) claims
that South Africa was among the first countries to promulgate legislation
aimed at addressing sexual harassment in the workplace. The Protection from
Harassment Act 17 of 2011 was introduced only later.
Prior to 2013, the victims of harassment and sexual harassment had little legal
recourse and protection from their harassers. Aggrieved persons had to follow
the company’s grievance procedure and were exposed to further harassment
during the investigation and the resultant judicial process. The Protection from
Harassment Act 17 of 2011 came into operation on 12 April 2013. Even today
it is apparently a largely unknown piece of legislation.
Its purpose is to ensure that victims of harassment (including sexual harassment)

have a legal remedy. Like the Domestic Violence Act 16 of 1998, the Protection
from Harassment Act of 2011 makes provision for a protection order against
any alleged perpetrator of harassment or sexual harassment (Joubert 2013:139).
132
The Act provides for the involvement of the South African Police Service and a
protection order against the alleged perpetrator. This has implications for the
labour environment since an employee can obtain a protection order against
an employer for alleged harassment or sexual harassment.
Section 60 of the Employment Equity Act 55 of 1998 provides that “… if the

employer fails to take steps necessary to deal with unfair discrimination or
sexual harassment and it is proven that an employee has contravened the
relevant provisions, the employer must be deemed also to have contravened
that provision”. Both pieces of legislation have far-reaching consequences for
employers.
It is therefore vital that employers design and enforce company policy (Hugo
2021) in accordance with legislative requirements. Failure to do so may render
them liable to pay compensation and may prove to be a costly omission (Van
Israelstam 2014; Sunday Times 2018).
Koch (2017) claims that a dispute regarding unfair discrimination (excluding

unfair dismissal) may be referred to the CCMA in writing within six months
after the incident took place. If the dispute cannot be resolved, the matter may
be referred to the Labour Court. For matters pertaining to unfair discrimination
based on gender, the matter may also be referred for arbitration. A victim of
gender discrimination can also approach the Commission for Gender Equality
directly. They will appoint an investigator or legal officer who will discuss the
way forward with the victim.
3.3 HARASSMENT DEFINED

Joubert (2013:139) contends that the Protection from Harassment Act 17 of 2011
defines harassment in section 1(1)(a) – (b) as “… directly or indirectly engaging
in conduct that the respondent knows or ought to know –
(a)
Causes harm or inspires the belief that harm may be caused to the complainant
or a related person by unreasonably –
(i)
Following, watching, pursuing or accosting the complainant or a
related person, loitering outside of or near the building or place where
the complainant or a related person resides, works, carries on business,
studies or happens to be;
(ii)
Engaging in verbal, electronic or any other communication aimed at
the complainant or a related person, by any means, whether or not
conversation ensues; or
(iii)
Sending, delivering or causing the delivery of letters, telegrams,
packages, facsimiles, electronic mail or other objects to the complainant
or a related person or leaving them where they will be found by, given
to, or brought to the attention of, the complainant or related person;
or
(b) Amounts to sexual harassment of the complainant or a related person”.
In addition, the PEPUDA defines ‘harassment’ as “… unwanted conduct

which is persistent or serious and demeans, humiliates or creates a hostile
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or intimidating environment or is calculated to induce submission by actual

or threatened adverse consequences and which is related to… sex, gender or
sexual orientation…” (Van Wyk 2019).
Joubert (2013:139) highlights a few interesting aspects in the legislation. The

victim does not have to know who the harasser is and a protection order can
be obtained against an unknown person. Furthermore, the complainant may
not necessarily be the only victim or the sole object of the harasser. The harm
may be directed against a family member, close friend or somebody or some-
thing close to the complainant. The conduct towards the complainant must be
unreasonable and the perpetrator must know or ought to have known that the
conduct would or had the potential to cause harm (Joubert 2013:139).
Landis et al (2003:183) describe harassment as:
either one or more forms and [it] may be subtle, overt, verbal, physical or
a combination of these. It may only occur as a single incident or persist and
may have retaliatory and intimidatory characteristics. It impacts on personal
dignity and the environment and there is an obligation on the employer to
create a work environment that is safe and not hostile.
If you read the definition of crimen iniuria, you will see that the wording is
similar to that used to describe sexual harassment, namely a serious violation
of the dignity of another. Hence, the media usually refer to these harassers as
“sex pests”.
Joubert (2013:125) defines crimen iniuria as “the unlawful, intentional and

serious violation of the dignity or privacy of another person”. Section 10 of the
Constitution determines that “… everyone has inherent dignity and the right to
have their dignity respected and protected”. Joubert (2013:126) maintains that
a person’s dignity is violated if they (a normal, average person) feel humiliated
as a result of another person’s conduct or words. The victim’s reaction to the
conduct should also be taken into account. That is why it is important that you
determine the victim’s state of mind after the attack. Determine whether the
victim reported the incident to another and obtain a statement from that person
so that the perpetrator can be held accountable for more than just harassment
or sexual harassment or even crimen iniuria.
3.4 HOW IT MANIFESTS

Harassment in the workplace manifests in a variety of ways. It can occur either
overtly or covertly depending on the intention of the perpetrator. Harassment
in the workplace can be subversive and subtle to such a degree that the victim
simply resigns (Harassment in the workplace 2021). Sometimes, unethical
employers harass people into resigning so that they do not have to follow
the required retrenchment procedures. They will overload the person, make
remarks about their work or attire, criticise them for trivial things, and make
them appear stupid in front of colleagues, juniors or superiors. They may make
remarks about their appearance (non-sexual), their intelligence or any other
aspect of their victims (such as their gender, race or religion) to make their
work situation so intolerable that they eventually resign.
134
Sexual harassment is much more specific. The Code of Good Practice on the
handling of sexual-harassment cases (an addendum to the Labour Relations
Act of 1995) defines it as “… unwanted conduct of a sexual nature”. This
conduct may manifest in any form ranging from accidentally touching the
victim’s breasts, buttocks or thighs to seemingly innocent remarks. It may
be non-verbal such as unwanted contact of a sexual nature, strip searches or
pressure to perform sexual acts for career advancement (Code of Good Practice
2021; Hugo 2021). Verbal sexual harassment manifests in remarks, comments,
indecent exposure, overt advances, the display of sexually explicit graphics,
pictures or pornography (Hugo 2021).
3. 2
ACTIVITY SECTION 2: STUDY UNIT 3.2
Please read the short case studies below. Then visit the module site and access
the blog titled Section 2: Unit 3: Is this harassment, sexual harassment or
something else? Please give your opinion and motivate it. Answers should not
be longer than 50 words each.
(1) A and B work for the same company. They really like each other. A asks
B on a date. B agrees. They had an intimate evening.
(2) X likes C, but C is not interested and rebuffs X. X begins to stalk C and
leaves chocolates and messages with explicit sexual content. X follows C
home at night and sends her SMS messages. C begins to feel threatened
at work because of this.
(3) D is a manager and E is his secretary. Because the company is not doing
well financially, D wants to get rid of E without paying her the required
severance pay. D begins to insult and degrade E to force her to resign.
(4) G and H are BFFs. They often spend weekends together, watching MMA
and playing online games. They both like S who fancies G. When G tells
sexual jokes, S laughs about it and tells a joke or two herself. When H does
the same, S reports H to the manager for sexual harassment.
3.5 ADDRESSING THE MATTER

The following is from an article titled “Sexual harassment – what to do when
the monster knocks on your door” by Jeanne Hugo.
“So, what to do when an employee approaches you, as a manager or employer, with

a complaint?
Step one: be sure of the facts
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“As a superior, a detailed knowledge of what constitutes sexual harassment is an

invaluable asset. Sexual harassment is defined by the Code of Good Practice on the
Handling of Sexual Harassment Cases (an addendum to the Labour Relations Act
of 1995) as “unwanted conduct of a sexual nature”. It can take the form of physical,
verbal or non-verbal conduct. Physical conduct includes all forms of unwanted contact,
from obvious examples such as rape, to a strip search performed in the presence of
the opposite sex. Verbal forms of harassment may include sexual innuendoes, sugges-
tions, jokes, sexual advances and pressure to perform acts of a sexual nature in order
to maintain job security or obtain career advancement.
“Non-verbal conduct may include “unwelcome gestures, indecent exposure and the
unwelcome display of sexually explicit pictures and objects”. This foundation of knowl-
edge is important because it may be the case that the aggrieved employee is uncertain
if what happened to him or her constitutes sexual harassment.
Step two: informal or formal procedure
“Two paths are open to the employee to resolve the matter: an informal or formal
procedure. The Code of Good Practice stresses that, if possible, the company should
provide employees with assistance in the form of an advisor (outside of line manage-
ment) to whom the person may turn for advice and support on a confidential basis.
Such an advisor may help the employee decide on an option.
“Before embarking on a resolution process, it should be noted that the importance of

confidentiality is also stressed. The identities of all parties involved should be kept
confidential and, in the case of a disciplinary enquiry, “only appropriate members
of management as well as the aggrieved person, representative, alleged perpetrator,
witnesses and interpreter if required, must be present.
Informal procedure
“By following the informal route, it may be sufficient for the employee to meet with
the person engaging in the unwanted behaviour and simply explain to him or her that
said conduct is unwelcome and is making the employee uncomfortable. The presence
of the advisor and supervisors of the employees involved is recommended.
“If the aggrieved employee is uneasy about the prospect of a face to face meeting, a
written complaint, in which the nature and consequences of the unwanted conduct is
clearly explained to the offender, may also suffice. Should neither of these informal
procedures resolve the matter, as may be the case in serious incidents of sexual
harassment, it is recommended that the employee follow a more formal route.
Formal: Internal or External
“Each company has its own internal, formal disciplinary procedure. Hereby, the
aggrieved employee makes a formal complaint, be it through an internal grievance
procedure or otherwise, which must then be investigated by the company. If possible,
objective proof or witness accounts should be provided to support the claim. Note
that, by law, “serious incidents of sexual harassment or continued harassment after
warnings are dismissible offences”. Guidelines for dismissal based on misconduct
can be found in Schedule 8 of the Labour Relations Act of 1995. If either party is not
satisfied with the outcome of this investigation, the Code of Good “Practice provides
for two further external options:
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The offended party has the right to press “separate criminal and/or civil charges
against an alleged perpetrator”; and
Either party may refer the matter for dispute resolution (within 30 days of the
dispute having risen) to the Commission for Conciliation, Mediation and Arbitration
(CCMA). The appointed commissioner will attempt to resolve the dispute through
conciliation and, if it remains unsolved, arbitrate the dispute. If the dispute is still
unresolved, either parties may refer their case to the Labour Court.
Step three: follow up with the employee
“After the matter has gone through the available channels – and has, hopefully, been
resolved – it is the responsibility of the employer or supervisor to schedule regular
meetings with the aggrieved employee to make certain that the unwelcome conduct
has indeed ceased. Sexual harassment is a traumatic experience and the victim may
be in need of professional counselling. It is also recommended that special leave be
granted to the employee, even if he or she has exhausted their sick leave entitlement”
(Hugo 2021).
If the steps suggested above were followed and the victim is not satisfied with
the outcome, it is up to the victim to lay a formal, criminal charge at the local
police station. It then becomes a police matter and the police will have to act
in accordance with the Protection from Harassment Act. The scope of this unit
does not require us to address the criminal side of the investigation (pertaining
to the protection order), but we will consider the investigation of this complaint
and related complaints.
3.5.1 The investigation of a harassment or sexual

harassment complaint
Although the following discussion is from a traditional male-on-female
perspective, it is acknowledged that females can also be guilty of harassment
or sexual harassment. Harassment may also occur between persons of the same
gender. Since this is not as common as male-on-female harassment, investigators
should be aware of their own prejudices when conducting an investigation.
The first order of business will be to interview the complainant to determine

the facts. What did the perpetrator say or do? The actions and words of the
perpetrator must be described in detail, no matter how lurid, vulgar, horrific or
traumatic. It must be clear that the victim is shocked and indignant about what
was said or done to her, otherwise the perpetrator may allege that he and the
victim were either having an affair or playing the fool and that he had behaved
in a similar way towards the victim before and she had never complained.
Therefore, he believed that she found his behaviour acceptable.
You must establish whether this was an isolated incident or not. If similar
incidents had occurred in the past, a full description of each must be obtained.
Remember that the perpetrator’s behaviour may also constitute sexual assault.
Evidence of previous incidents is important as an indication of the suspect’s
general behaviour and modus operandi (or unique behaviour).
Record whether the victim had complained before. She may have confided in a
friend, another colleague or even a parent. She may have kept a diary in which
she recorded these incidents. If so, the diary should contain valuable evidence
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such as dates and places, which should enable you to place the perpetrator at
the scene. It should be seized for evidential purposes.
If it appears to be a case of sexual assault, you must determine the extent of it.
Then it is a criminal matter and, although a corporate investigator may record
the statement, best left to the police because if there are injuries, the victim
will have to be referred to a district surgeon for a medical examination. The
district surgeon has to complete official police forms. It may be that the victim
has consulted a private doctor before you or the police got involved. In that
case, ask the private practitioner to complete the relevant forms.
If the assault turns out to be rape, you have no choice but to involve the police
as a matter of urgency. The scene of the incident also needs to be safeguarded
so that valuable physical evidence is not lost. The same applies to the victim: she
must be asked not to wash or change her clothes until the medical examination
has been carried out. If she has changed, her dirty clothing must be seized and
handed to the police for forensic analysis. Bear in mind that contamination
may destroy the evidential value of the exhibits. Therefore, clothing must be
treated and stored with the greatest care.
Although this module does not include the investigation of rape or other
criminal offences of a sexual nature, you are urged to acquaint yourself with
these crimes so that you know how to act. In case of sexual assault, the victim
usually reports the incident to another person. You will have to interview this
person and take a full statement or affidavit in which the particulars of the
incident and the exact words and emotional state of the victim are indicated. The
witness must then state what they subsequently did and describe any further
developments. If the witness confronted the assailant, the incident must be
described in detail and any admission or confession the assailant made must
be carefully noted in the statement. If possible, the assailant’s exact words must
be recorded. It is not your task to decide on the admissibility of what was said.
This is the task of the prosecutor.
As to harassment or sexual harassment, other witnesses to the incident must

also be interviewed and their statements must be taken. Although they are
not complainants, unless the perpetrator threatened them as well, they should
say what their reactions were to the incident. If they are also complainants,
separate charges must be laid – one for every complainant.
As far as the disciplinary code is concerned, your action in investigating the

matter will be the same as for the offences mentioned above. The matter is
regarded as so serious that dismissal is prescribed. So it is important that your
investigation is conducted with due regard to process. Keep in mind that the
case will, in all probability, end up in a criminal court. Make sure that your
statements are sworn or affirmed and that the required standard of proof is
adhered to.
REFLECTIVE SECTION 2: UNIT 3.3
Section 2: Unit 3: What is your view? Please give your opinion on the following:
138
To what extent can the processes of Restorative Justice or Alternative Dispute

Resolution assist managers to address incidents of harassment or sexual
harassment in the work place? Motivate your answer.
Wherever a man goes to dwell, his character goes with him.

Meaning: What defines a man is his character, which is inseparable from him and
follows him everywhere he goes (@karaboGerald 2021).
3.6 SUMMARY
In this unit, we discussed harassment and sexual harassment. We considered
how these crimes manifest and what legislation says about them. We also
discussed some aspects of crimes related to harassment and sexual harassment,
and examined the possible impact of these crimes on a work environment. We
then discussed an elementary investigation into an allegation of harassment or
sexual harassment within a company. In the next study unit, we will discuss
the crime of common assault and consider the legislative guidelines in relation
to this crime.
SELF-ASSESSMENT
Ensure that you have achieved each of the outcomes for the study unit listed
below:
Identify conduct which amounts to harassment or sexual harassment.

Explain what harassment and sexual harassment is.
Define these crimes.
Identify the perpetration of these crimes based on the given scenarios.
Explain how you would conduct an elementary investigation into an alleged
incident of either harassment or sexual harassment.
Identify and use the different terms and concepts relevant to the investigation
of harassment/sexual harassment in an investigative report.
Explain the importance of company guidelines in preventing and dealing
with harassment or sexual harassment.
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4
ST U DY U NIT
Common assault

In this study unit, we will address the common-law crime of assault. We will
consider ways in which this crime may be perpetrated. The study unit is titled
Common Assault since the law provides for different types of assault. These
include indecent assault, which is now called sexual assault; assault GBH
(grievous bodily harm), which is assault with the intention to do grievous bodily
harm; and assault in which the victim sustained a serious physical injury. It
is important to distinguish between the different forms of assault since it has
a bearing on whether a suspect may be arrested without a warrant of arrest
(Joubert 2013:109). We will deal with only common assault in this study unit
and will use the term ‘assault’. The reason I used the term ‘common assault’
before and in the title is to distinguish the content of this study unit from that of
other study units. I will however mostly refer to ‘assault’ during this discussion.
that you do as many of them as you are able to online since online collaboration
with fellow students enriches your learning experience. Feedback on the
reflective and practical tasks will only be given online.
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Unless otherwise stated, I have made use of the study guide: Investigative
principles for Policing II (study unit 1 – Common Assault). Where relevant, I use
examples from the corporate environment and supplement my sources with
legal and other contemporary sources.
Anger against a brother is felt on the flesh, not in the bone.
Meaning: You should learn to forgive at all costs (Mueni 2020).
the common-law crime of assault

the definition and elements of this crime
investigating this crime
explain assault as a crime against persons

discuss the type of intention (dolus directus, doulus indirectus and dolus
eventualis) at the hand of a given scenario
define the crime and expand on the elements that make up this crime
discuss an elementary investigation of an incident of assault at your workplace
discuss the importance of company guidelines about assault
4.1 INTRODUCTION
In study unit 5, we will be dealing with intimidation. To some extent, intimidation
and assault have threats of violence in common. We will discuss it later.
One crime may constitute several others and you must learn to discern more
than one crime or disciplinary transgression in a specific incident.
As a corporate investigator, you will not be faced with a great number of

assault complaints. Police officials, on the other hand, have to deal with
assault complaints daily. Complaints range from assault through threats often
accompanied by verbal abuse or name calling (crimen injuria or crimen iniuria).
It is important to know what to do if such a situation does arise.
4.2 HISTORIC OVERVIEW

Burchell (2013:577) submits that the term ‘assault’ is derived from the Latin
salire, which means ‘to leap’. So, the term brings to mind the image of someone
leaping at (ad) another person (adsalire) as if to attack him or her. The Old-
English word ‘assail’ evolved into the modern word ‘assault’. The word ‘insult’,
a form of verbal abuse, originates from salire (in + salire or insultare).
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Common assault
In days gone by it was lawful to take revenge for an injury to one’s person or
goods. But the law put a stop to personal revenge by prohibiting intentional
physical harm, also known as battery, and any other insulting conduct (usu-
ally verbal). Consequently, if someone as much as touched another person, he
was guilty of assault and held liable for compensation (Burchell 2013:577–578).
As law and law-making developed, so too did its scope and application. Eng-
lish criminal law makes provision for “… not only the beating or wounding
of persons, but also the insulting touching of another (battery) and attempts
to commit battery or the mere inspiring of fear in the mind of another of physi-
cal harm …” (Burchell 2013:578). Roman law, on the other hand, punished any
harmful conduct towards another under the generic term iniuria. The different
forms of physical iniuria closely resemble the English versions of battery and
assault through both physical contact and verbal threats (Burchell 2013:578).
South African law was to a great extent influenced by the Roman concept of
iniuria. As far as terminology is concerned, our law was also influenced by
English law. South African law uses one term: ‘assault’. Assault could be com-
mitted both verbally and physically (Burchell 2013:578). As mentioned earlier,
crimes often overlap and assault is no exception. Burchell (2013:579) points out
that the common-law crime of assault can overlap with the statutory crime of
intimidation. Since we will address intimidation in the next study unit, we will
not go into it, but will indicate the possibility of overlap.
4.1
Please visit the module site and access the blog titled Section 2: Unit 4: Common
assault. Before you read the section on common assault, let us gauge our
understanding of common assault. Please indicate whether you agree or disagree
with the following statements. Motivate your answers in not more than 20
words for each statement.
(1) To strike someone with an open hand against the head is a form of com-
mon assault.
(2) To threaten to hurt someone by raising your fist in front of his or her face
is a form of common assault.
(3) To hit a person over the head with a baseball bat is a form of common
assault.
(4) To throw a chair at a person standing before you is a form of common
assault.
We will give feedback on the module site under this blog.
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4.3 DEFINING COMMON ASSAULT

In a work environment, one expects professional, courteous, friendly and
non-violent conduct. Unfortunately, tempers sometimes flare. People snap
and exchange blows. More often than not, smart phones are used to record
these fights, which are immediately uploaded onto social media because of
their entertainment value. Not only can such criminal conduct (assaulting a
colleague) get you fired, but it may also cause reputational harm to the company
that employs you. It leaves you exposed to possible civil litigation.
But what types of action are considered common assault? Let us see what
the law says. Joubert (2013:109) and Burchell (2013:577) both provide defini-
tions for common assault. Assault is defined as the unlawful and intentional
application of force to the body of another or bringing that person under the
impression that force is going to be applied directly (Burchell 2013:577; Joubert
2013:109). So for this crime to be perpetrated, specific actions are required. Let
us consider what these are.
4.3.1 Unlawfulness and intent

Joubert (2013:113) states that the first two elements of assault are unlawfulness
and intent. This means that the application of force or the threat must be both
illegal and intentional. The illegal application of force or the threat of it occurs
either when there is no consent to or justification for it. Consent applies to sur-
gery or sports such as boxing and rugby. Therefore, if you are a boxer and your
opponent hits you in the face and breaks your nose, you cannot lay a charge
of assault since you gave permission for the assault by taking part in the sport
(Burchell 2013:217). Similarly, undergoing surgery is also consensual ‘assault’
and unpunishable since you submit yourself to the surgery. But if your kidney
is illegally harvested for the black market, it is an entirely different situation.
There are exceptions to the consent rule, namely assisted suicide, some cultural
rituals (see Phiri 1963 R&N 395 SR in Joubert 2013:222) and forced consent,
among others. Furthermore, if you defend yourself against an attacker, it is
considered self-defence and a lawful attack (Joubert 2013:113).
The other element is intent. If by slipping and falling you knock another person
to the ground, you cannot be held criminally liable for assault. The law does,
however, provide for the person to institute a civil action against you, but we
will not discuss that here. Since one cannot negligently assault another per-
son in terms of South African law, intent in any of its various forms must be
proven. While this is not a law subject, it is important to distinguish between
the different forms of intention, as you may have to prove any one of them in
your investigation.
Burchell (2013:345) explains that intent can be present in three forms: dolus
directus, dolus indirectus and dolus eventualis.
Dolus directus is the most common form of criminal liability in South African
law. It means that a person wanted to perpetrate a crime or bring about a
consequence despite the slim likelihood of success. For example, X wanted to
slap Y and did so.
Dolus indirectus implies that if X perpetrates a crime and another crime results
from it, they should have foreseen the possibility of another result arising from
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Common assault
their unlawful action (Burchell 2013:346). X prepares to shoot Y who is sitting

behind a window; X shoots and kills Y and simultaneously breaks the window.
Thus X commits murder and causes damage to property.
The last form of intention is dolus eventualis, which is closely associated with
dolus indirectus. In this instance, X does not mean or intend to cause a specific
result by means of the unlawful action, but foresees the possibility that it
might happen and proceeds with the unlawful conduct nonetheless (Burchell
2013:347). X wants to throw a stapler at Y, sitting on the other side of the of-
fice. X foresees that he might hit A, sitting somewhere in the same direction,
but decides to take his chances and throws the stapler. If it hits Y, it is dolus
directus, but if it hits A, it is dolus indirectus and what the law refers to as aberatio
ictus or the going astray of the blow (Burchell 2013:347). Whether the stapler
hits A or Y, X will be guilty of assault (and possibly GBH) since the intention
was to cause an assault. It is irrelevant whether A or Y got injured. Burchell
(2013:347) affirms that dolus eventualis is the “… sufficient fault element for
all common-law crimes based on intention” in South African law.
In the course of your investigation, you must bear in mind that assault may not
be the only crime and that you should thoroughly investigate the intention of
the perpetrator so that the offence can be formulated correctly. Therefore, if the
assault was perpetrated together with intimidation or theft, the correct charge
may be robbery and intimidation and not assault, theft and intimidation. Once
your complainant has lodged a formal report at a police station, the crime has
been registered and a Crime Administration System (CAS) number has been
issued, a criminal case may follow without the complainant ’s consent or partici-
pation. This is especially so in cases of domestic violence or child abuse because
victims or caregivers are sometimes intimidated to withdraw the charges or
because they change their minds about prosecution. Since these are serious
offences, the prosecutor may take the case to trial anyway (Motsepe 2020:2).
4.3.2 Application of force or violence

While assault is often manifested through kicking, punching, hitting or slap-
ping, the law provides that minimal interference with another person may
also constitute assault. In the case of R v Herbert 1900 10 CTR 424 (Joubert
2013:110), C removed B’s hat from his head several times without permission.
C was convicted of assault in spite of the fact that no force was applied.
But an assault does not have to be an act; it can be an omission. Joubert

(2013:110) explains that if B fails to protect A from C and C harms A, then B
is also liable for the crime as B is legally bound to protect A (if B is a parent,
guardian or a police official). It is interesting to read court decisions in harass-
ment cases. For example, if it is known that an employee is often harassed (or
sexually harassed) by another employee and if the employer does nothing to
protect the victimised employee, the employer, by omission, is also liable for
assault. Remember dolus indirectus?
4.3.3 The belief that force is imminent

Assault may also be perpetrated by someone who brings another person under
the impression that force is imminent. This can be done if the perpetrator has
a gun or a knife or holds a chair in the air and aims it at the victim. The law
terms these acts “assault through threats” (Joubert 2013:111).
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Along with force being imminent, there must be the belief that it is. So, if A
threatens B and B does not believe A, it is unlikely that an assault charge will
be successful. Joubert (2013:112) argues that while it is “… possible to imagine
instances of attempted assault, an attempt to apply force usually already con-
stitutes a completed assault, as it creates in the mind of its intended victim an
expectation of violence, albeit only a brief and passing expectation”. Thus, the
victim’s state of mind at the time of the assault or threat is of vital importance.
Please visit the module site and access the blog titled Section 2: Unit 4: What
is your view? Please indicate whether each statement below is sufficient to
inspire the belief that force is imminent. Motivate your answers. Answers for each
statement should not exceed 20 words.
(1) A draws a firearm and threatens to shoot Y if he comes closer.

(2) B holds up an iron rod and threatens to strike C if he does not leave the
office.
(3) D reprimands E for being insolent. E picks up a rock, asks D what he is
going to do about it, and comes for D in a threatening manner.
(4) G threatens to wring H’s neck if he does not leave his daughter alone.
(5) J stands outside K’s office and threatens to beat him if K does not leave
his office and join an industrial strike.
We should put out a fire while it is still small.
Meaning: resolve the problems early on before they become large and destructive
(Safari Junkie 2018).
4.3
Please visit the module site and access the blog titled Section 2: Unit 4: Common
assault. Let us revisit our answers to reflective activity 4.1. Now that you have
gone through the learning material, do you need to revise any of your answers?
Please reflect on this in the blog in no more than 50 words.
4.4 THE INVESTIGATION OF COMMON ASSAULT

When investigating incidents such as disciplinary misconduct or criminal
offences, it is important to remember the definition of the specific crime. In the
light of our discussion, bear in mind the type of assault you are dealing with.
We will address the investigation of a common assault. Unisa’s Disciplinary
Code for Employees (Unisa 2013:4) refers to assault in the following manner:
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Common assault
So it is important that you, at the outset of your investigation, know exactly

how the restricted conduct is described. In this instance, it is assault or com-
mon assault.
CASE STUDY 4.1
Ms Bongi Nkosi was asked by her manager, Mr Gerald Naidoo, to work late one
evening. While she was typing a report, Ms Desiree Kind walked up to her and from
behind grabbed her by the hair. She whispered into Bongi’s ear that if she makes any
advances towards Mr Naidoo, she (Desiree) would get her biker friend to sort her
out. Bongi managed to grab hold of Desiree’s hand and scratched the back of it her
with her fingernails. Desiree slapped Bongi across the face with her open hand and
left the office immediately. As a result of the assault, Bongi’s spectacles cut her above
the left eye and broke as they landed on the floor. She also sustained a cut to her lip.
4.4.1 Preliminary investigation
Let us consider how you may go about investigating the assault explained in
case study 4.1 above.
Sometimes, investigators are so sure about the guilt of the alleged perpetrator
that they ignore potential witnesses and evidence. It is worth noting that the
preliminary investigation conducted by a police investigator differs from one
conducted by an in-house forensic investigator. Irrespective of who conducts
an investigation, the purpose should always be the same (Motsepe 2020:7).
The investigator called to a scene must do the following (when relevant):
Control the scene. If the perpetrator is still around and armed, disarm the
person.
Call for and provide medical assistance if needed. (Be mindful that both the
victim and the perpetrator may require medical assistance.)
Separate the perpetrators (if there is more than one).
If it is applicable, inform the perpetrator/s of their constitutional rights.
Record preliminary statements.
Take photographs as evidence if relevant.
Collect and preserve evidence if relevant.
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Joubert (2013:109) cautions that one may not arrest a person for common
assault without a warrant, unless the assault took place in front of the police
official or the officer, or if it is related to domestic violence. If Ms Kind is still
at the scene and also has injuries, deal with her in the same way as the com-
plainant. Other people also may have worked late, so make enquiries to obtain
corroborative statements.
Be mindful of possible evidence at the scene. In FOR1501, you learnt about

Locard’s exchange principle. According to this principle, traces of evidence will
be transferred from Ms Kind to Ms Nkosi and vice versa. It is also possible that
blood from the assault can be found on the body of Ms Kind, so it is vital that
she be traced as soon as possible. Ms Kind will have to be formally arrested
for the assault, but only if the victim (Ms Nkosi) lays a criminal charge. You
can ask Ms Kind if she would talk to you. If she is consents, record what she
says. You can also ask her permission to take photographs of her injuries or
torn clothing. If she refuses, do not proceed with that avenue of investigation.
There will be traces of skin under Ms Nkosi’s nails. Gather evidence such as
photographs of her torn clothing, her injuries and the scene.
If the assault was serious, the victim should be taken to the district surgeon as
soon as possible for a physical examination. The report from the district sur-
geon is given on the prescribed forms and serves as vital evidence in the case
(Motsepe 2020:8). Injuries are usually captured on a J88 form, which police
officials should be able to assist you with. A J88 is an official form on which a
district surgeon records the findings of a medical examination. Once a criminal
case is registered, a police investigator will be assigned to the case, and you
will have to hand over whatever evidence you may have gathered.
Motsepe (2020:8) submits that some creativity is sometimes required when

the necessary forms are not readily available. In the past, detectives have scrib-
bled down confessions, admissions or other key information on the back of a
cigarette box because the official document was unavailable. Such evidence
was allowed in court. If a J88 is unavailable, record evidence in your diary.
Clothes are an excellent source of information. Infinitely small pieces of evi-

dence (such as microscopic and macroscopic substances) may still be on the
clothes of both the victim and the perpetrator. If the evidence is visible (such
as a splatter of blood on the collar of the perpetrator), note the location and
describe it in your field notes and later in your statement. Use your cellphone
to photograph it in the absence of an official police photographer. Preserve the
chain of evidence in relation to the memory chip of the cellphone. You will have
to make a statement that you did not tamper with or change the content of the
photographs taken at the scene. If the assault is of such a serious nature that
the victim or victims is unable to talk to you, state it. Describe their condition
in detail. It is important that a statement from the victim is obtained as soon
as possible (Motsepe 2020:8).
Bystanders sometimes take video clips and upload them onto social media.
These clips can be valuable sources of information and even serve as evidence.
Obtain such footage as soon as possible. Similarly, if CCTV/surveillance foot-
age of the incident is available, arrange for a copy and request that the original
footage be retained securely. If the data is stored off site (in a cloud), it can be
mailed to you or sent to you on a memory stick. Remember to verify the time
and date on the camera stamp. Security guards at the office should also be
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interviewed to determine if they saw anyone entering or leaving the offices

and, if so, who and in what state of mind these people were. In other words,
were they in a hurry or did they walk out leisurely?
4.4.2 Protect the scene

There will not always be a scene, but when there is one, it must be protected
and cordoned off. Bystanders or inquisitive people should be kept off the scene.
It once happened that inquisitive high-ranking police officers were permitted
on a crime scene and they destroyed vital evidence. The investigation of the
Oscar Pistorius case, televised in 2014, is an excellent example. The original
investigator did not wear the correct protective clothing on the scene.
So, protect the scene and have photographs taken. Blood on a table and the
state of the table are also vital to the investigation. Furthermore, take photo-
graphs of the victim’s injuries as soon as possible. The scene must be searched
for fingerprints, footprints or any other evidence that the perpetrator may have
left behind such as clothing, splatters of blood or a weapon. In an investigation
of assault, force or violence has to be proven. Therefore, evidence of a struggle
must be either photographed or documented in field notes (Motsepe 2020:9).
In FOR1501, we discussed different search patterns as well as the collection

and preservation of evidence. We will not discuss it again.
4.4.3 Administration of the investigation

Once the criminal case has been registered, it will be handed to a police
investigator. Or you may be asked to investigate the matter in-house first.
Once your investigation is concluded, a criminal case will be opened. Whatever
the case, it is important that your investigation be done as objectively and
professionally as possible. Even if an arrest has already been made and you
investigate the matter internally, do not let this influence you. Gather the
evidence and let the evidence tell its own story, which will enable you to prove
the elements of the crime in court (Motsepe 2020:10).
4.4.4 First information statement

Always take a statement containing the first information of the crime. This
may not always be the statement of the victim. It may be that of a witness. In
all likelihood, it will be the statement by the person who reports the crime to
the police or forensic investigator. This is an important statement since it alerts
the police to the commission of a crime (Motsepe 2020:10).
4.4.5 Witness statements

It is essential that accurate and detailed statements are taken not only from the
victim, but also from witnesses. Usually, the first bit of information obtained
by the investigator is the person’s name and their cell number to track them
later to obtain statements. These statements must be complete in every respect.
Therefore, pay particular attention to the following:
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how the assault took place

where the assault took place
a complete physical description of the perpetrator, even when the victim
knows the perpetrator well
whether the perpetrator and the victim were either drunk or under the
influence of drugs
physical address of the perpetrator (which will be useful when a warrant
needs to be issued for the arrest of the perpetrator)
the relationship between the perpetrator and the victim
the type of assault that took place, for example, a punch with the fist, a slap
with the palm (which hand did the perpetrator use?), threats of violence
a full description of the injuries sustained by the victim
the full names and addresses of all the witnesses
the details of medical staff at the scene or at the hospital (Motsepe 2020:10)
This is not an exhaustive list but an indication of the information elements
that have to be recorded in the statements of witnesses and the victim. In the
unlikely event that a minor (someone under 18 years of age) is either the victim
or the perpetrator, it is vital that the parents or guardian be informed and that
the minor be questioned only in their presence. Record the minor’s account of
what happened (every action) accurately. This will enable the court to deliver
a fair verdict. Make use of media to circulate a description of the suspect if the
person is evading justice. Interview all the witnesses and make sure that all
relevant information is followed up on. Establish the motive for the assault to
make it easier to identify the perpetrator (if the person is unknown) (Motsepe
2020:10).
4.4.6 Investigating an assault by threat

Obtain a statement of the threat from the victim. This must contain the fol-
lowing information in as much detail as possible:
the nature of the threat and a full description of how the perpetrator
threatened to harm the victim
the perpetrator’s exact words or phrases
when exactly did the perpetrator say the assault would take place, for example,
when the person walks home, if they go near a certain place
whether the victim believed the threat and was afraid because of the threat
whether the victim and the perpetrator had previous altercations during
which the perpetrator assaulted or threatened the victim
statements of witnesses to these incidents
a statement by the perpetrator (if they are willing to make one)
the police will take a warning statement from the perpetrator (Motsepe
2020:11).
On completion of the investigation, the case docket is submitted to the prosecu-
tor for a decision to prosecute the perpetrator. Prosecution usually depends on
the amount of prima facie evidence available to convict the perpetrator. Also, you
will draft and submit an investigator report to your line manager for a decision.
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Common assault
Justice.
(1) Which of the elements of social justice (access to resources, equity, human
rights, diversity and participation) can you integrate into your investigation?
Only someone else can scratch your back.
Meaning: there are some things in life that you simply cannot do yourself; for that
reason, we need others (Good Morning Quotes 2019).
4.5 SUMMARY
In this study unit, we have discussed the common-law crime of assault. We
have considered how it may be perpetrated and what different forms of intent
may be involved. In study unit 5 of this section, we will discuss the crime of
intimidation and consider the legislative guidelines for this crime.
SELF-ASSESSMENT
Make sure that you have mastered the key concepts listed at the start of the
study unit by making brief notes so that the meaning of each term is clear.
Ensure you are able to answer each of the following statements for the study unit.
Explain assault as a crime against persons.

Define the crime and expand on the elements that make up this crime.
Discuss an elementary investigation of an incident of assault at your
workplace.
Discuss the importance of company guidelines in relation to assault.
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5
ST U DY U NIT
Intimidation

70 minutes to complete the two activities and one self-assessment activity
In this study unit, we will address the crime of intimidation. Be mindful that
intimidation may manifest in different ways and that it is covered by several
pieces of legislation. Intimidation may also manifest as workplace bullying.
In this study unit, we will discuss intimidation as set out in section 1(1) of the
Intimidation Act 72 of 1992 and consider some of the ways in which intimidation
occurs (South Africa 1982).
that you do as many of them as you are able to online format since online
collaboration with fellow students enriches your learning experience. Feedback
on the reflective and practical tasks will only be given online.
Where relevant, I have used examples from the corporate environment and
have supplemented the sources with legal and other contemporary sources.
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A man who pays respect to the great paves the way for his own greatness.
Meaning: What goes around, comes around. What you sow, you shall reap. (How-
SouthAfrica 2016).
intimidation as a crime
At the end of this study unit, you will have be able to
explain what intimidation is

discuss an elementary investigation of an incident of intimidation at your
workplace
explain the importance of company guidelines and policy in relation to
intimidation
5.1 INTRODUCTION
In any environment or social setting where two or more people work together
or interact, personality clashes will occur. This is especially true in a corporate
environment where time is money and the corporate ladder must be climbed.
Sometimes, businesses have to make difficult decisions to survive in a demanding
and ever-changing market. This has never been truer than during the COVID-19
pandemic. Every day companies close down because of financial difficulties.
Companies that have survived the pandemic need to redefine themselves in
more lucrative spaces.
Often employees are retrenched when the economy hits a slump. Job losses
are sometimes the result of restructuring and the termination of employment
is sometimes the result of disciplinary action. Companies such as EDCON,
PRADA (SA) and others, closed their South African stores as a result of COVID
pandemic (Business Insider 2020). The closure of Greyhound, which has been
operating for 37 years, and of MUSICA, which has been operating for 25 years,
is a stark reminder of the dire economic straits our country finds itself (Phillips
2021; Staff Writer 2021).
Every year the South African economy is paralysed by strike action. Strikes
are not always legal and striking workers are not always protected by the law.
Striking workers sometimes intimidate non-striking workers to join the strike,
which only exacerbates labour problems. When strikes are illegal and jobs are
lost, workers often retaliate by threatening to destroy a business or burn its
offices to the ground. Such threats, often made in the heat of the moment, are
unlawful.
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Intimidation
Read some interesting literature on strikes in South Africa by clicking on the

link below. This work will not be assessed and is intended for your edification.
https://www.sahistory.org.za/archive/strikes-and-industrial-actions
Patel and Rapuleng (2021) contend that an Accord on Collective Bargaining

and Industrial Action was recently published. Clause 7 of the Accord states as
follows:
“All parties to this Accord commit:
In the case of violence, intimidation, and the threat of harm to person or

property associated with industrial action, to build capacity; expedite processes
and assign sufficient and senior staff to the resolution of issues.”
This Accord encourages role-players to refrain from intimidation and violence.

Moreover, the SAPS are expected to contain and prevent violence. Private
security services employed by organisations are required to address such
incidents and implement the Code of Good Practice on collective bargaining,
industrial action and picketing (Patel & Rapuleng 2021). This Accord can be
found under Additional Resources or you can click on the following link:
https://www.worklaw.co.za/SearchDirectory/Codes_Of_Good_Practice/
Accord_on_collective_bargaining.pdf
The Code of Good Practice (Watkins 2018) can be found at this link:
http://www.workinfo.org/index.php/legislation/item/2018-code-of-good-
practice-collective-bargaining-industrial-action-and-picketing
Please visit the module site and access the blog titled Section 2: Unit 5: Indus-
trial action and intimidation.
(1) What is your opinion of industrial action (strikes)? Share your views on
this question in no more than 50 words.
(2) What is your view on intimidation (in a work environment) to attain
favourable outcomes (such as higher wages) for union members? Share
your view on this in no more than 50 words.
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SCENARIO 5.1
Mr Isaac Mabena is the Human Resources Manager at ABC International. He is

known as a fair man who follows the rules. Mr Mabena is also the disciplinary
officer of the company. At a recent disciplinary hearing, his verdict terminated
the employment of John Claasen who was caught stealing petrol from com-
pany vehicles. After the hearing, Mr Claasen threatened that he would burn
the building to the ground if he was not re-instated immediately and that if
Mr Mabena did not apologise to him, he would make Mr Mabena “pay for it”.
5.2 DEFINING INTIMIDATION

There are various definitions of intimidation. To intimidate means to make
afraid. It also means to “make timid or fearful … to compel or deter by or as if
by threats” (Merriam-Webster, 2014). The origin of intimidate is the Medieval
Latin word intimidates, which is a compound word consisting of in + timidus,
meaning timid (Merriam-Webster 2014). In other words, the intimidator causes
someone to be timid.
With this in mind, let’s see what the law says about intimidation. Admittedly,
legal jargon can be difficult.
Section 1(1) of the Intimidation Act 72 of 1982, as amended, provides that
“Any person who:
(a) without lawful reason and with intent to compel or induce any person
or persons of a particular nature, class or kind, or persons in general to
do or abstain from doing any act or to assume or to abandon a particular
standpoint:
(i) assaults, injures or causes damage to any person; or
(ii) in any manner threatens to kill, assault, injure or cause damage to any
person or persons of a particular nature, class or kind; or
(b) acts or conducts himself in such a manner or utters or publishes such

words that it has or they have the effect, or that it might reasonably be
expected that the natural and probable consequences thereof would
be, that a person perceiving the act, conduct, utterance or publication
(i) fears for his own safety or the safety of his property or the security of
his livelihood, or for the safety of any other person or the safety of the
property of any other person, or the security or the livelihood of any
other person,
shall be guilty of an offence and liable on conviction to a fine not exceeding

R40 000.00 or to imprisonment not exceeding ten years or to both such fine
and such imprisonment.”
In Section 1A (1), the Act further provides that
“Any person who with intent to put fear or to demoralize or to induce the
general public, a particular section of the population or the inhabitants of a
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Intimidation
particular area in the Republic to do or to abstain from doing any act, in the
Republic or elsewhere:
(a) commits an act of violence or threatens or attempts to do so;
(b) performs any act which is aimed at causing, bringing about, promoting
or contributing toward such an act or threat of violence, or attempts,
consents or takes any steps to perform such act;
(c) conspires with any other person to commit, bring about or perform any
act or threat referred to in paragraph (a) or act referred to in paragraph
(b), or to aid in the commission, bringing about or performance thereof;
or
(d) incites instigates, commands, aids, advises, encourages or procures

any other person to commit, bring about or perform such an act or
threat,will be guilty of an offence and liable on conviction to a fine which
the court may in its discretion deem fit or to imprisonment for a period
not exceeding 25 years or to both such fine and such imprisonment.”
According to Section 4 of the Act, violence “… include[s] the inflicting of bodily

harm upon or killing of, or the endangering of the safety of, any person, or the
damaging, destruction or endangering of property”.
At Unisa, intimidation is defined in the Disciplinary Code for Employees (Unisa

2013:5) as follows:
5.2.1 Discussion
The first section refers to individuals or a particular group or groups of in-
dividuals. The second refers to the general public, a particular section of the
population or the inhabitants of a particular area in the Republic.
In the scenario, section 1(1)(a)(ii) and (b)(i) has been contravened. First, Mr
Claasen had no lawful reason to threaten Mr Mabena. Secondly, he threatened
to burn the place to the ground.
Let us consider how you may go about investigating this matter were Mr Ma-
bena to lay a formal charge of intimidation against Mr Claasen.
5.2.2 Investigation
The first thing to do is to seize any CCTV/surveillance camera or recording
device or recordings that may have recorded the threat. Also obtain the charger
so that the device does not switch off because it ran out of power. Have an
expert make a copy of the recording. This expert will have to give evidence in
court. It is recommended that two copies of this recording be made. One copy
is for investigative purposes and the other for the defence. Keep the original
safe at all times and be mindful of the chain-of-custody requirements.
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After you have received the recording, transcribe the conversation or have a
transcription made of it. Ensure that it is completely accurate. If some words
are indistinct, say so rather than writing down what you think has been said.
Do not, under any circumstances, play around with a seized device to access
its database. Leave it to an expert who will have to give evidence in court.
You may inadvertently add or remove data from the device and discredit the
evidence it contains. Remember to keep the device’s battery charged until you
hand it to the investigating police officer who will send it to the forensic science
laboratory or to an expert to have the footage copied.
In his statement, Mr Mabena he will have to identify Mr Claasen as the person

who threatened him. He will have to attach a transcription of a recording to
his affidavit and state that the transcription is a true and correct version of
events. You will have to obtain statements from people who were in the room
or in the vicinity and heard the threats. They too can verify that the recording
is a true reflection of what happened.
A crime of this nature is usually investigated by the police. As always, you must
know what the law requires of you in your investigation. Finally, you could also
consider an alternative charge of crimen iniuria or even assault if the threat was
directed at Mr Mabena. (See the discussion in study unit 4.)
If a hen perches on a rope, both the hen and the rope are uncomfortable.
Meaning: The impact of an action affects both the doer and

the subject of the action (Scrollforth 2020).
Justice and investigation of intimidation.
(1) Which elements of social justice (access to resources, equity, human rights,
diversity and participation) can you integrate into your investigation?
5.3 SUMMARY
In this study unit, we have discussed the crime of intimidation. We have
considered how it may be perpetrated. In study unit 6 of this section, we will
discuss the crime of malicious damage to property, which is often associated
with acts of intimidation.
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Intimidation
SELF-ASSESSMENT
Ensure that you are able to answer each of the following questions in relation
to the outcomes for the study unit.
Explain what intimidation is.

Define the crime and expand on the elements that make up this crime.
Discuss an elementary investigation of an incident of intimidation at your
workplace.
Explain the importance of company guidelines and policy regarding
intimidation.
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160
ST U DY U NIT
Malicious damage to property

6

In this study unit, we will address the common-law crime of damage to property
or, as it is popularly known, malicious damage to property. We will consider
some of the ways in which this crime manifests within the work environment.
There are reflective as well as practical tasks. I strongly advise that you do as
many of them as you are able to online since online collaboration with fellow
students enriches your learning experience. Feedback on the reflective and
practical tasks will only be given online.
Unless otherwise stated, I have used study unit 4 of the study guide for
Investigative principles for Policing II (Malicious damage to property) as a
foundation. Where relevant, I used examples from the corporate environment
and I have supplemented the sources with legal and other contemporary sources.
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A bridge is repaired only when someone falls into the water.
Meaning: only when something bad has happened, do we correct the obvious
mistake (Zara 2015).
the common-law crime of malicious damage to property

At the end of this unit you will have to be able to
explain malicious damage to property as a property crime

discuss an elementary investigation of an incident of malicious damage to
property at your workplace
appreciate the importance of company guidelines for malicious damage to
property
6.1 INTRODUCTION
In study unit 1, I explained that we, as consumers, add to our possessions
daily and that when we buy things, we expect to use them for quite some time.
Sometimes these things get stolen. We have discussed this as theft. Theft is
when an item is permanently removed from your possession.
Malicious damage to property is similar to theft, except that the perpetrator

wilfully and, sometimes, maliciously damages property to such an extent that
its owner has no use for it unless it is repaired. Legally speaking, the crime is
damage to property but we will use the terms ‘malicious damage to property’
and ‘damage to property’ depending on the context of the discussion.
Be mindful that the courts subscribe to the maxim de minimis non curat lex (the
law takes no account of trifling matters). This means that the court will not
entertain your case if it is trivial. Triviality is determined on a case-by-case
basis and ranges from accidentally spilling cold drink on a colleague’s jacket or
flinging water in your neighbour’s garden (Lawyers Online 2019). The courts
will consider matters such as these as trivial.
6.2 DAMAGE TO PROPERTY

Damage to your most prized possessions or assets has a number of consequences.
These are, for the most part, financial since the damaged property has to be
either replaced or repaired. When you damage your own property accidentally
162
or intentionally, it is not a crime, unless you claim from your insurance. But
when you damage the property belonging to another person intentionally, it
is a crime (Motsepe 2020:49).
Almost daily we read in newspapers of malicious damage to property (CEO

2015; Masilela 2014; News24 2021) besides reports of intimidation and public
violence. The crime of malicious damage to property seems to be the stepchild
of the property-crime family. It is treated as a minor crime since it is usually
perpetrated by mischievous youths or as an occupational hazard of companies
during strike action. Since this crime usually manifests when a group of like-
minded persons gather (for whatever reason), there are seldom witnesses.
However it may be downplayed, malicious damage to the property of another
should be treated as a real crime demanding effective action against the
perpetrator since the damage and the loss are real.
6.2.1 Defining damage to property

Malicious damage to property is intentional damage to the property of another
and it is unlawful (Lawyers Online 2019). Joubert’s (2013:174) comprehensive
definition highlights the fact that the crime includes damage to one’s own
property with the intention to claim from insurance.
Joubert (2013:174) adds that the term ‘malicious’ is misleading as it refers to

the motives of the perpetrator. Since malice is not a requirement for liability,
she terms this offence ‘damage to property’.
Because the crime of damage to property used to be a considered by the police

as a civil matter, it was not addressed through criminal proceedings. However,
the actions of riotous or disorderly groups of people who damage property
can hardly be addressed through civil channels (Burchell 2013:736). For this
reason, it seemed appropriate to include a principle in the law to deal with this
form of conduct.
At Unisa, the Disciplinary Policy for Employees (Unisa 2013:5) contains the
following explanation of damage to property:
3.9 D
amage to property (i) i s the wilful damage to University
premises, equipment or property.
(ii) is the wilful damage to University
products before or during production.
(iii) is the sabotage for purpose of causing
delays in production or the rendering
of services.
Malicious damage to property has four elements. To prove the crime in a court,
an investigator has to prove them.
These elements are:
Unlawful
– Joubert (2013:175) and Burchell (2013:737) refer to this requirement and
mention that for the action to be criminal, the conduct must be unlawful.
So, if there is a law or some ordinance that permits the destruction of
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animals under certain circumstances, it is not unlawful. When you wil-

fully cause damage to your own property but do not intend to claim from
the insurance or institute any other form of claim, your conduct is also
not unlawful (Motsepe 2020:50). The conduct may manifest as either an
action (to do something to) or an omission (to refrain from doing what
was supposed to be done) (Joubert 2013:174). Therefore, to wilfully throw
your laptop out of the window or to fail to protect it against damage by,
for example, leaving it out in the rain, amounts to damage to property.
Intentional
– In terms of intention, the word ‘malicious’ sometimes causes confusion. It
causes one to believe that the conduct of the perpetrator was with malice,
ill-will or ill-intention. This is not a requirement for this crime. What is
a requirement is that the perpetrator should have foreseen the possibility
that the unlawful conduct may damage the property (Burchell 2013: 739;
Joubert 2013:175). This is termed dolus eventualis, which, as explained by
Joubert (2013:80), occurs when an individual subjectively foresaw the
possibility that their actions could have an unlawful result but nonetheless
proceeded with the action (Motsepe 2020:50). If I, while walking down
the stairs, slip and drop my laptop bag and the laptop breaks, it will not
amount to intentional damage. However, if the bag is not securely closed,
causing the laptop to slip out of it, I might be negligent in my conduct,
which may also amount to a disciplinary transgression. It all depends
on how the policy is worded.
Damage
– Not all damage to property bears criminal liability. If the damage is
minimal, common sense should be applied. However, when the property
is damaged to such an extent that it is lost, permanently damaged or
requires repair (either once or continuously) to render it the same as it
was before the incident, then it is said to be damaged (Joubert 2013:174;
Motsepe 2020:50).
Property
– Property must be physical, in other words, you must be able to touch and
see it. It can also be either moveable or immoveable. Property must also
belong to another person or another person must have a legal right in it.
One can damage one’s own property and not necessarily fear prosecution
unless one institutes a fraudulent insurance claim (Motsepe 2020:50).
This excludes cases where the property is protected by legislation such
as animals protected under the Animals Protection Act 71 of 1962 or the
National Heritage Resources Act 25 of 1999. In terms of these Acts, one
may not damage one’s own animals or heritage items (Burchell 2013:738).
Read the short case studies below. Proceed to the module site and access the
blog titled Section 2 Unit 6: Malicious damage to property. Indicate the extent
to which each of the following case studies amounts to malicious damage to
property. Motivate your answer.
(1) You go to your neighbour’s house and knock on the front door. A glass
pane in the door falls out and breaks.
(2) You walk past a parked car and bump the side-view mirror. It falls to the
ground and breaks.
164
(3) You stop at a shopping mall and open your car door to get out. The wind
catches your door and it bangs into the door of the Porsche parked next
to you, denting the door.
(4) You are angry with your boss. You walk past his car and scratch it with
your office key.
(5) A taxi suddenly stops in front of you in traffic. You cannot stop fast enough
and bump into the back of the taxi.
6.3 THE INVESTIGATION OF DAMAGE TO PROPERTY

When investigating a crime of damage to property, one of the first things you
need to establish is the motive (Motsepe 2020:51). If it is a personal motive,
a specific course of action has to be taken. Friends, acquaintances, ex-lovers,
and so on will be questioned. If the motive is political, a different course of
action is required. Another course of action will be taken when the motive is
financial (and the perpetrator wants to claim from insurance).
Therefore, determine from the outset the possible motive(s) for the damage. You
will have to gather information from witnesses and, if possible and relevant,
make use of informers to verify or validate information.
6.3.1 The crime scene

In module FOR1501, dealing with a crime scene was dealt with. We will not
repeat the procedure here. But remember that in a case of damage to property,
you get to investigate a crime scene only once. It will not be possible to go back
and fix your mistakes.
At the crime scene, think for a moment and ask yourself:
What happened here?

What was the motive of the perpetrator(s)?
What has been left at the crime scene (in terms of evidence or exhibits)?
WWWere there any witnesses?
How can the crime scene be protected to prevent contamination or destruction
of evidence?
Are there experts that can assist you? (Motsepe 2020:51).
6.3.2 Make field notes

The taking and use of field notes were addressed in FOR1501. The importance
of accurate notes in the field cannot be overemphasised. The notes you take
in the field serve as a record of what you have done. Start taking notes the
moment you receive the mandate. Your field notes may also reflect your ideas
and remind you of things you need to attend to. You stop taking notes only
when a case is closed. You will use them to write your statement and/or the
report of the investigation. They are a permanent record and your statement
or report should never contradict them. Below is a list of items that you should
record in your field notes. You may add to it as you see fit.
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As an investigator, remember to include the following details in your field notes:
the time when the damage occurred (captured as accurately as possible)

who discovered the damage?
a description of all the damaged property
if relevant, include the name and details of the owner of the property or the
person responsible for the management of the property
names and details of the person/s who may be responsible for the damage
reasons that the aforementioned persons are suspects
possible motives for the damage
a description of evidence or exhibits left at the scene and its location. Exhibits
must be seized in a manner that complies with legislative requirements
regarding the chain of custody
any other details relevant to the incident, however insignificant it may seem
at the time (Motsepe 2020:51–52).
6. 2
Study the list of items that you need to record in your field notes. Go to the
module site and access the blog titled Section 2 Unit 6: Field notes.
Why is it important to make field notes? Share your views with the group.
Can you add items to the list above? Share this with the group.
Let us now consider why people damage the property of others (or even their
own).
6.4 POSSIBLE MOTIVES

Try to determine, at the start of your investigation, the possible motive as this
may help to identify the suspect/s. This type of crime nearly always has a spe-
cific motive and, as the investigator, it will be your responsibility to prove it.
In some cases, the motives are political and the group who is responsible for
the damage will publicly take responsibility for the crime.
We will now discuss motives that drive people to damage their own (illegally)
or another person’s property.
6.4.1 Profit
The first motive that prompts people to damage property is profit by claiming
from their insurance. An owner may even pay somebody else to damage the
property on their behalf. In this instance, property such as vehicles, homes and
household property may be damaged or destroyed for the insurance benefit.
166
6.4.2 Elimination of competition

Another motive for damage to property is to remove competition. This criminal
motive characterises corrupt business people as well as unscrupulous criminals.
These criminals may even resort to computer viruses to damage the computer
systems of their competitors.
6.4.3 Concealing another crime

Sometimes, damage to property is meant to conceal another crime. Similar
to the previous example, a computer system may be corrupted with a virus to
conceal other activities on the system such as espionage.
6.4.4 Jealousy, revenge or spite

People sometimes act out of jealousy, spite or revenge and target both the
individual and the property. Perpetrators of these crimes include ex-lovers or
ex-spouses, disgruntled employees and neighbours involved in disputes. They
may damage property such as a vehicle of the person who they target.
6.4.5 Vandalism and malicious mischief

Vandalism and juvenile mischief do not require much planning. These acts are
usually perpetrated by juveniles who have nothing better to do than to roam
the streets without supervision and who dare each other to commit random
acts of vandalism such as breaking the windows of abandoned buildings or
painting graffiti on walls. Sometimes, striking workers vandalise vehicles
parked along a street or municipal property such as street lights, garbage bins
and street signs. Criminals vandalise to intimidate witnesses by throwing a
brick through the window of a house or damaging plants in a garden.
6.4.6 Political motives

Some political groups use damage to property or even sabotage to pressurise
governments to do or to refrain from doing certain things. This is particu-
larly prevalent during elections, when opposing political parties vandalise the
posters of their opponents. Xenophobia is another political motive. Driven by
xenophobia, citizens attack and damage the property of foreigners who live
and work in their neighbourhood.
These are not the only motives that drive people to commit the crime of dam-
aging their own or another person’s property. You may add to the list based
on your experience.
Those who accomplish great things pay attention to small things.
Meaning: those who end up accomplishing great things, pay attention to the small
things first. (Zara 2018).
FOR1502/1167
CRIMINAL OFFENCES
6.5 POTENTIAL EVIDENCE OR EXHIBITS

At the scene, you may find evidence that may be admitted as exhibits. If you are
of the opinion that evidence can be sent for analysis, seize it. The SAPS make use
of the Forensic Science Laboratory (FSL) for the analysis of evidential material
such as biological evidence. In the corporate environment, this avenue is not
open to you, unless a criminal case is investigated and evidence is submitted
for analysis as a result of the investigation.
Evidence sent for analysis in this manner (as a result of a criminal investigation
by the SAPS) will be accompanied by a covering minute in which the investigator
specifies what the laboratory should test for (when applicable). Notes or letters
that the suspect wrote can be seized for forensic analysis. These can be examined
for fingerprints and the handwriting or typing can be analysed. Experts can
also determine the manufacturer and origin of the paper. Furthermore, if there
is blood or genetic material, these too can be sent for blood group or DNA
analysis. Cartridges or casings found at the scene can also be sent for analysis
(Motsepe 2020:53).
Please visit the module site and watch the YouTube videos about malicious
damage to property uploaded there. Consider the type of evidence available
on social media to assist in the investigations.
The value of CCTV/surveillance footage must never be underestimated. Seize

the footage and ensure its safekeeping.
People often record incidents on their phones and share them on social media.
Visit the social media pages of the suspect or other employees of the company for
evidence of the incident. Obtain statements regarding the incident in question.
In the next section, we will discuss statements.
6.6 STATEMENTS
As the investigator, you will be expected to take statements from witnesses
and the complainant.
6.6.1 Statement of the complainant and witnesses

It is important that you establish the elements of the crime and get a full
description of the destruction or damage to the property in the statement of
the complainant.
Pay particular attention to the following:
Time and date of the incident. Uncertainty about the date and time of the
incident (perhaps it took place over a long weekend) must be mentioned in
the statement.
Who is the owner of the property and, if relevant, who was responsible for
the management of the property at the time of the incident?
A full description of the damage to the property.
168
Was evidence left at the scene such as CCTV/surveillance footage of the

incident, individuals or vehicles. Or did the perpetrators leave behind tools
or implements?
Can suspects be linked to the incident and what is/are the reason/s for
suspecting them?
Was permission given to anyone to damage or destroy the property?
From the statement it must be clear that the damage was intentional and
not accidental (Motsepe 2020:52).
These incidents are seldom witnessed by persons who were not involved.
When there were witnesses, it is important to obtain their statements in which
the date, time and place of the incident are mentioned. A detailed, exact and
accurate description of the events is crucial. If the witness can describe the
perpetrator/s and vehicles, record this as accurately as possible. If the witness
is able to identify the suspect/s, record it.
6.6.2 Statement of the investigator

The investigator’s statement provides a detailed account of what was done and
of the evidence gathered. Your field notes are of great value. Make sure that (at
least) the following aspects are included in your statement:
your personal details

the evidence that you gathered, the date, time and place where the evidence
was found, the circumstances under which the evidence was found and
what you did with that evidence
how the evidence was identified and by whom
a clear outline of the chain of custody of the evidence
as to your conduct at the scene, state what you observed and what actions
you took (this must be verifiable in your field notes)
if suspects were arrested, the circumstances under which this happened,
the warning of the suspect and their constitutional rights
whether the suspect confessed, admitted or pointed out
the circumstances of the above (Motsepe 2020:52–53).
Your field notes will be of great help during this phase of the investigation.
FOR1502/1169
CRIMINAL OFFENCES
Re-read Alternative Dispute Resolution in section 1, study unit 0. Proceed to

the module site and access the blog titled Section 2, Unit 6: Alternative dispute
resolution. Indicate whether you consider Alternative Dispute Resolution as a
means to resolve matters of malicious damage to property. Motivate your answer.
6.7 SUMMARY
In this unit, we have discussed the common-law crime of damage to property.
We have examined how it manifests within a work environment and what some
of the motives are. This brings us to the conclusion of section 2 for FOR1502.
We trust that you found the content and assessment valuable and insightful.
There are no short cuts to the top of the palm tree.
Meaning: there are no short cuts in life: to achieve success, one has to work hard
and avoid short cuts (Zara 2015).
SELF-ASSESSMENT
Make sure you have mastered the key concepts listed at the start of the
study unit by making brief notes so that the meaning of each term is clear.
Although the following questions will not be marked, they are, nonetheless,
informative:
In what category of crime does malicious damage to property belong?
Of how many elements does this crime consist?
Can you name them and briefly explain each?
Do you now understand how important it is that company policy addresses
malicious damage to property in the work place in a comprehensive manner?
What other transgressions may be included in a policy about malicious
damage to property?
170
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Author: Prof B Benson

Selected crimes and transgressions I

NATURE, CONTENT AND SCOPE

SECTION I: DISCIPLINARY TRANSGRESSIONS 1

STUDY UNIT 2 –PERJURY AND DEFEATING OR OBSTRUCTING

STUDY UNIT 3 – HARASSMENT AND SEXUAL HARASSMENT 129

STUDY UNIT 5 – INTIMIDATION 153

STUDY UNIT 6 – MALICIOUS DAMAGE TO PROPERTY 161

Welcome to the module Investigation of Selected Crimes and Transgressions

SECTION 1 DISCIPLINARY MISCONDUCT

SECTION 2 CRIMINAL OFFENCES

Key concepts. The key-concepts icon draws

Learning outcomes. The learning outcomes indi-

Read. The read icon will direct you to read

Reflection. The reflection icon requires you to

Assessment. When you see the assessment icon,

Time out. The time-out icon indicates that you should

A multilingual glossary of terms is available on the module site on myUnisa

(1) Pre-colonial Africa: an introduction

TIME REQUIRED FOR STUDY UNIT

This study unit will require approximately 4 hours to complete.

 1 hour to read the entire study unit

1. Pre-colonial Africa: an introduction

In the discussion that follows, the terms ‘Afrocentric’, ‘Eurocentric’, ‘African’

Afrocentric regarding African or black culture as the most important

The majority of western or Eurocentric literature regards pre-colonial Africa

3. Criminal justice in pre-colonial Africa

African folklore abounds with stories of greed, theft, honesty,

institutions of higher learning. In so doing, protesting students questioned

“The call for Africanisation (and decolonisation) is not without serious

To this Jansen adds:

Which of course raises a critical issue about knowledge, curriculum and

In a recent media briefing, Professor Funmi Olinisakin, the vice-

seems to be political, but it should be seen as a question of power …

To decolonise the curriculum, it is vital that we consider additional principles

Social justice comprises five principles, namely access to resources, equity,

REFLECTIVE TASK 0.1

Time for this activity: approximately 30 minutes.

Take a moment to reflect on the five principles of social justice as illustrated

5.1 Equity, equality and justice

(Equity and equality 2021)

REFLECTIVE TASK 0.2

Time for this activity: approximately 30 minutes.

Take a moment to reflect on the terms ’equity’, ‘equality’ and ‘justice’.

ht t ps : //on l i nepubl ic hea lt h.g w u.edu /res ou rces / eq u it y-v s-

ht t ps ://v iablef ut u rescenter.org /racemat tersinst it ute /2014 / 04 / 02/

6. Alternative dispute resolution (ADR) and restorative justice (RJ)

REFLECTIVE TASK 0.3

Time for this activity: approximately 60 minutes.

Click on http://www.scielo.org.za/pdf/ahrlj/v11n2/11.pdf and read the article.

As an investigator in the South African forensic investigative context, whether

REFLECTIVE TASK 0.4

Time for this activity: approximately 30 minutes.

Discipline in the South African

TIME REQUIRED FOR STUDY UNIT

 1 hour to read the entire study unit.

Knowledge is like a garden. If it is not cultivated, it cannot be harvested.

In this study unit, you will learn about

 workplace conduct that is deemed very serious misconduct, serious

STUDY UNIT OUTCO MES

SECTION I: DISCIPLINARY TRANSGRESSIONS 1

STUDY UNIT 2 –PERJURY AND DEFEATING OR OBSTRUCTING

STUDY UNIT 3 – HARASSMENT AND SEXUAL HARASSMENT 129

STUDY UNIT 5 – INTIMIDATION 153

STUDY UNIT 6 – MALICIOUS DAMAGE TO PROPERTY 161

1 hour to read the entire study unit

1 hour to read the entire study unit.

workplace conduct that is deemed very serious misconduct, serious

distinguish between conduct which is deemed very serious misconduct,

Has a specific rule or standard been disregarded?

Could this person reasonably be expected to have been aware of it?

absent without leave for a short period

sleeping when on duty

a first offence of absenteeism during the probationary period, namely the

“Depending on circumstances and the relationship between the employer

The employer leads the evidence.

How serious the misconduct was.

Are you an active social media user?

Distinguish between very serious misconduct, serious misconduct and

1 hour to read the entire study unit.

civil, criminal and departmental investigations

explain the purpose of a letter of engagement