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UNIVERSITY OF PRETORIA FACULTY OF LAW I (full names): __________________________________________________ Student numb __________________________________________________ Module and subject of the assignment: SKY 400 Dissertation Declaration 1. I understand what plagiarism entails and am aware of the Universitys policy in this regard. 2. I declare that this SKY 400 dissertation is my own, original work. Where someone elses work was used (whether from a printed source, the internet or any other source) due acknowledgement was given and reference was made according to the requirements of the Faculty of Law. 3. I did not make use of another students previous work and submit it as my own. 4. I did not allow and will not allow anyone to copy my work with the aim of presenting it as his or her own work.

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Contents:Chapter 1: HISTORICAL BACKGROUND AND HISTORY OF THEFT IN THE WORKPLACEA: HISTORICAL BACKGROUND B: HISTORY OF THEFT IN THE WORKPLACE

Chapter 2: DEFINITIONS AND DISCUSSION OF THEFT A: Introduction B: Criminal Law C: Suggested Definition Chapter 3: FIDUCIARY RELATIONSHIP AND ITS RELEVANCY A: Introduuction B: Relevant Principles C: Checkers Decisions Chapter 4: DISCIPLINARY PROCESS 4.1 Investigation.10 4.2 Polygraph testing..10 4.3 Suspension27 4.4 Disciplinary hearing..27 4.5 Different penalties to be imposed by employer29 4.5.1 Warnings 4.5.2 Dismissal Chapter 5: CONCLUSION 31 9 10

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Chapter 6: BIBLIOGRAPHYChapter 1 HISTORICAL BACKGROUND LAW IN SOUTH AFRICA AND HISTORY OF THEFT IN THE WORKPLACE A: HISTORICAL BACKGROUND

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During 1652 1870 slavery was regarded as a source of labour until 1834 when it was abandoned during the Great Trek. The Masters and Servants Act was promulgated in 1842 and the scope of offences widened after 1856 when it was repealed, misconduct included failure to perform work, absence, negligence, insubordination. All employees that committed any of these offences were sentenced to one month imprisonment. With the Economic Boom during 1960 1nd 1970 white workers gained as demand for skilled work grew and white business gained tremendous. Gold prices were high African labour was cheap. This gave way to the repressive apartheid state. The 1973 Oil shock generate economic crisis and there was a decline in economic growth and in per capita income (15% 1974 93). Political opposition to apartheid state was created and this caused the development of the BCM-SASO & BPC in 1968, student uprisings in 1976 and tremendous growth in trade unions and strike activity. International pressure grew and various codes of practice were issued to multi-nationals. There were boycotts and sanctions against South Africa and foreign countries withdrew investments. The Wiehahn Commission was appointed to investigate labour legislation and to recommend major revamp of labour legislation. The Commission was to focus on removing racism from IR legislation, recognizing black trade unions in labour law, introducing minimum standards of the Basic Conditions of Employment Act and rewriting the Health and Safety legislation for the workplace in an attempt to rebuild the economy.

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The amendments to the ICA during 1979 to 1983 changed labour relations in SA completely. All working persons were now regarded as employees, all unions were allowed to register, job reservation was eliminated and suddenly freedom of association was guaranteed to all. South Africa was readmitted to the ILO and support for collective bargaining, freedom of association, trade union rights and maternity rights was re-established. Between 1993 1995 all labour legislation was rewritten and NEDLAC (National Economic Development and Labour Council) was formed. The main objective of this council was to shape and develop the new labour dispensation in South Africa. It is a social partnership involving government, labour and the community and it consists of 4 chambers namely finance, Trade & Industry & Development. Thereafter the following acts were adopted and are still in force: (a)Labour Relations Act 66 of 1995 (b)Basic Conditions of Employment Act 75 of 1997 (c)Employment Equity Act 55 of 1998 (d)Skills Development Act 97 0f 1998.

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B: HISTORY OF THEFT IN THE WORKPLACE 1.1 Introduction There are a number of Labour Court decisions that indicate that dishonesty is commonly held to destroy the trust upon which the employment relationship is founded. This has been held irrespective whether the employer actually suffered loss as a result of the dishonest conduct.

When we go back in the history of South African labour law it appears from case law that the court placed a very high regard on the trust relationship between employer and employee when dealing with cases of theft in the workplace. See for example:

1.2 Case Law Standard Bank of SA Ltd v CCMA & Others1The following was stated: The existence of the duty upon an employee to act in good faith towards his or her employer and to serve honestly and faithfully is one of long standing in the common law. It has been regularly and strongly approved by our courts in relation to the unfair labour practice jurisdiction under the previous Act, no 28 of 1956. It has been no less strongly re-affirmed in decisions dealing with the current Act. In Metro Cash And Carry v Fobb and Another2 where it was emphasized by Tip AJ at paragraph 39 that: Theft is theft and does not become less so because of the size of the article stolen or misappropriated. Trust is the core of the employment relationship. Dishonest conduct by an employee breaches the trust the employer places on the employee.1 2

Standard Bank of SA Ltd v CCMA & Others (2008) 6 BLLR 622 (LC). Metro Cash And Carry v Fobb and Another (J1031/97) [1998] ZALC 40 (24 June 1998)

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Two recent Labour Appeal Court cases again looked at the requirements for dismissal in the case of theft. Incidentally, both of them are between the same parties and were heard during 2008. Checkers (Pty) Ltd v CCMA & others3 (The first Shoprite case). The importance of this case is the fact that the LAC took factors in mitigation, such as the employees years of service and a clean record into consideration. The employee had been captured on the store video camera on three separate occasions eating in areas in which such activity was prohibited. He was subsequently charged with misconduct, found guilty and dismissed. It was common cause that the monetary value of that which was consumed was unknown, but not of a high value. The employee had 30 years of service and was a first offender. In this case, the matter was referred back for arbitration before the CCMA on more than one occasion and the employee was re-instated more than once. On review before the LAC, Zondo JP held that a reasonable decision-maker would, according not have sought to impose any penalty in addition to the severe final warning. The LAC also agreed that dismissal would have been inappropriate.

In Checkers (Pty) Ltd v CCMA & others4. (the Second Shoprite case) The appellant, Shoprite, dismissed the respondent employee after he was captured on videotape on three occasions eating pap and bread taken from the delicatessen at the store at which he worked. The CCMA reinstated him on the basis that theft was not proven. On review, the Labour Court found that the sanction was too severe and ordered re-instatement with a final written warning. The matter went on appeal and the dismissal was found to have been fair. Chapter 2

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Checkers (Pty) Ltd & others 12 BLLR 1211 (LAC) Checkers (Pty) Ltd v CCMA & others(2008) 9 BLLR 838 (LAC), reported on 20 June 2008

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DEFINITIONS AND OF THEFT A: Introduction Theft can have various forms. 5Theft is theft and does not become less so because of the size of the article stolen or misappropriated. Trust is the core of the employment relationship. Dishonest conduct of employee breaches trust the employer places on employee. Various forms of theft may be distinguished: (a) Ordinary theft: 6this takes place when an employee unlawfully and intentionally misappropriates a movable, corporeal thing of the employer with the aim of depriving him of ownership. It is not always easy to charge an employee with theft because of many practical legal problems, and therefore such an employee may be charged with alternative forms of misconduct, of which dishonesty is a component, such as: (i) The Illegal acquiring and possession of property of the employer without his consent7. 0r; (ii) Shortage of stock under his control and entrusted in him8. (b) Receiving of stolen property: Theft through the receiving of stolen property is the unlawful and deliberate misappropriation by an employee of property stolen from the employer, received from another employee or an outsider, well knowing, that it was stolen from his employer9. (c) Theft by false pretences: 10This is committed when an employee, unlawfully, intentionally and by false pretences acquires equipment or goods from his employer or fellow workers with their approval. 11An employee is also guilty of misconduct if he steals the property of fellow workers or clients.

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Metcash Trading Ltd t/a Metro Cash & Carry v Fobb 1998 ILJ 1516 (LC) R. v. Sibiya 1955(4) SA 7 Shopright Checkers v CCMA & others (2008) 12 BLLR 1211 (LAC) 8 Robertson & Co v Heathorn 9 R v Patz 1946 AD 845 857 10 ACTWUSA V JM Jacobsohn (Pty) Ltd 1990 ILJ 107 (IC) 11 Nyalunga v P P Webb Construction (1990) 11 ILJ 819 (IC)

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B: Criminal Law Definition of theft in terms of a Criminal law perspective: The following definition was put forward in the case of Gardiner and Lansdown12: Theft is committed when a person, fraudulently and without claim of right made in good faith, takes or converts to his use anythin