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(Double Jeopardy in South African law: Don’t fool yourself – it doesn’t always apply – risks for both employers and employees)


The law in regard to ‘double jeopardy’ is very complex and requires expert knowledge acquired through years of study and experience which is why it is offered only in advanced legal subjects in the LLM degrees at universities.

The common law principle of ‘double jeopardy’ (also known as ‘former jeopardy’) is one of the most important principles applicable to criminal law, which is applied worldwide, to prevent the abuse of state power or prosecutorial abuse of power to gain a second bite at the apple.

Most instances of double jeopardy arise when the state has failed to investigate crimes professionally or when mistakes are made by the prosecution during their consideration of charges to be brought against an accused.

Another instance in which it arises in regard to subsequent-death cases where a victim of a crime survives and after the acquittal or conviction of the perpetrator on a lesser charge, the victim dies from injuries sustained in the crime and the state seeks to charge the perpetrator with murder or culpable homicide. Subsequent-death cases are an exception to the standard considerations of the principle of double jeopardy by the courts and the leading case in South African law pertaining to double jeopardy since the 1996 Constitution is that of S v McIntyre (1997) 2 SACR 333 (T), while the earlier cases of S v Ndou 1971 (1) SA 668 (A) and S v Khoza (1989 (3) SA 60 (T) are precedents in their own right,  following on from the ground-breaking, landmark cases of S v Davidson 1964 (1) SA 192 (T) and R v Manasewitz 1933 AD 165.   

Section 35(3)(m) of the Constitution provides the constitutional guarantee that:

[e]very accused person has a right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted.

It is critical that any accused person always secures the services of an expert attorney to protect their rights in regard to abuse of power by the state or the prosecution or any other self-regulating body which includes employers in the labour context.

The defence or plea of double jeopardy only attaches in law after an accused has pleaded in a criminal trial. This is a fundamental and rudimentary principle in its own right which must be fully comprehended.

Criminal litigation chess-play is reserved for the realm of expert criminal defence attorneys because of the maxim that “it is better that 100 guilty men go free than for one innocent man to be jailed”.   

The law pertaining to former jeopardy or double jeopardy is applicable not only to criminal cases and the courts of law but also to matters involving self-governing bodies or tribunals such as Prison Boards, the military in regard to court martials and disciplinary action relevant to the CCMA, Bargaining Councils, the Labour Courts in regard to labour law and employment law.

Former jeopardy or double jeopardy basically means that a person cannot be tried twice in a court or tribunal of competent jurisdiction (as opposed to a kangaroo court) on the same set of facts or conduct.

If the person is charged with a crime which is essentially the same as a previous charge where the person has been acquitted of convicted, the person is entitled to raise the plea of former jeopardy or double jeopardy (autrefois acquit or autrefois convict).

It is imperative to understand that the colloquial meaning of double jeopardy is not the legal meaning and on many occasions clients do not know the difference or the law pertaining to same.

In civil law a similar principle in the law of civil procedure and the law of damages called the “once and for all” rule finds application. This rule prohibits a party to a dispute in which a court has given judgment to threaten another party with further litigation on the same issue.

In employment or labour law, double jeopardy may find application occur where the employer subjects the employee to a second disciplinary enquiry in respect of the same offence or similar conduct, after an employee was found not guilty at the first disciplinary inquiry or when a less severe sanction, than dismissal, was imposed on the employee.

While it is the business of employers to discipline their employees in accordance with the principles applicable to employee-discipline, an employee charged with misconduct or poor performance has the right to be given a fair opportunity to be heard before sanctioning (which in itself must be fair). Culminating from a fair disciplinary enquiry, the employer may impose a sanction it considers appropriate, provided the sanction is fair and consistently applied in general to all employees.

In order to succeed with the defence of double jeopardy in South African law, the employee must allege that the decision to acquit him, or to impose a less severe sanction, was made at a previously fair disciplinary inquiry and that the second charge is based on substantially the same conduct or facts as the previous charge. It sometimes happens that an employee who commits an offence is issued with a warning for a transgression by his manager. However, should it happen that the same offence is brought to the attention of a senior manager, he may think it warrants a sanction of dismissal based on substantially the same conduct of the employee.

In Brandford v Metrorail Services & Others (2003) 24 ILJ 2269 (LAC) an employee was given a warning by his line manager for forging a manager’s signature on petty cash claims.

After learning about the offence and the sanction, the regional manager instructed the auditors to investigate the offence. On the strength of the auditor’s report the regional manager decided to institute a further disciplinary inquiry which resulted in Brandford’s dismissal.

The Labour Appeal Court held that the employer had not infringed the double jeopardy rule. The court held that Brandford had not been subjected to two disciplinary enquiries, because at the time when the employee was issued with a warning, he was not formally charged by his line manager and therefore did not appear before a disciplinary inquiry.

Prior to the Brandford decision, in the case of BMW (SA) (Pty)(Ltd) v Van Der Walt (2000) 2 BLLR 121 (LAC), the Labour Appeal Court held that the question whether or not to institute a second disciplinary inquiry against an employee would depend on whether it is, in all the circumstances, fair to do so. The Labour Appeal Court stated that it would probably not be fair to hold more than one disciplinary inquiry, save in exceptional circumstances. (rf SARS v CCMA (2016) 3 BLLR 297 (LAC); SARS v CCMA (2014) 35 ILJ 656 (LAC); Opperman v CCMA & others (C530/2014) (2016) ZALCCT 29 (17 August 2016) – for recent cases on the point in issue).

In cases were an employee proves that a properly constituted disciplinary inquiry was previously held and that s/he was previously been charged and acquitted or found not guilty, then when a later charge brought against the employee was based on substantially the same conduct or facts, the employee should be successful in raising the defence of double jeopardy or former jeopardy in the second or later inquiry.

However, it is vital to know the law and to secure the services of expert attorneys to litigate your case, whether or not you are the employer party or employee party in the matter. ASHLEY SLAMAT ATTORNEYS – Copyright