Evidence was provided in a recent Labour Court case that the police issued an instruction to Legends Golf and Safari Resort Operations (Pty) Ltd, requesting them not to take disciplinary action against their employee, William Mtshali, until the conclusion of the criminal case. The police were of the view that the disciplinary investigation would interfere with their investigation. Legends Golf had to keep the rapist in their employ for almost a year and until he was convicted of rape and attempted murder as a result of this police directive.
The gruesome rape and attempted murder took place at the Legend Golf Lodge in early December 2011. On the pretext of fetching catering equipment at a distance ‘boma’, Mtshali dragged fellow chef into a toilet and raped her, after she refused his request to sleep with him. He then told her that he was going to have to kill her because he did not want to go to jail for rape. He beat her into an unconscious state by assaulting her with a rock, a pot lid and then his fists until she lost consciousness. When the applicant regained consciousness, she found that she was locked in the trunk of a moving vehicle being driven by Mtshali. She started screaming causing Mtshali to stop the vehicle, whereupon he beat her with his fists and raped her again. The young chef managed to escape from her rapist and was hospitalised and booked off work for seven and a half weeks as a result of her injuries. Acting Judge Snyman of the Labour Court said the medical report made for distressing reading.
Mtshali was convicted in the Magistrates’ Court in Mokerong in December 2012. He received a five years imprisonment wholly suspended for 5 years on condition that he is not convicted of rape again for the rape conviction. On the count of attempted murder he was sentenced to pay a fine of R 2000 or 12 months imprisonment. The Labour Court heard the employee’s case against Legends Golf in terms of Section 60 of the Employment Equity Act and this related to whether or not the employer has taken all reasonable steps to eliminate the conduct. In this instance the rapist was kept on at the workplace for almost a year and Legends Golf did not take disciplinary steps against him. Judge Snyman said that an employer should not be dictated to by the police as to how to conduct its internal disciplinary processes. The judge raised a concern that the employer had a potential rapist and attempted murderer in its midst still working with a number of other female employees at a remote lodge and such a situation should simply not be allowed to languish until the criminal justice machinery finally grinds to conclusion. The Labour Court found that Legends Golf were not liable as their explanation that they gave credence to the police directive was not unreasonable.
In the investigation of a serious crime which takes place in the workplace, one of the potential risks the police investigator has to deal with is that of an employer acting against the defendant before criminal proceedings are concluded. In some instances, the commencement of the disciplinary investigation may compromise or undermine evidence which is relevant to the police investigation. The police investigator however, does not have the right to order an employer to delay taking disciplinary steps against a rapist and attempted murderer. An internal disciplinary process is not the same as a criminal case. The employer is entitled to take disciplinary action against the employee and in this instance due to the seriousness of the misconduct and the potential risk posed to female employees and the defendant; the employer is entitled to have suspended the employee and proceeded with their disciplinary enquiry. The employer does not have to prove their case beyond a reasonable doubt as required in criminal law but simply on a balance of probabilities. The police investigators should always consult their legal advisors before issuing potentially harmful directives to employers.
There may still be justice for the complainant though as the Judge Snyman has referred the magistrate for investigation to the Magistrates commission; the NPA; and the Department of Justice and Correctional Services. The judge said that in his view the sentence handed down by the magistrates’ court was manifestly unacceptable and unconscionable considering the nature of the wrong done to the applicant, and that which Mtshali had actually being convicted of.