Criminal acquittal does not stop disciplinary proceedings

Davies Ndumiso Sibanda
MANY workers who have been acquitted by the criminal court think that their reinstatement is automatic and in most cases they argue that they cannot be tried twice for the same offence.

In the matter Mpofu vs Delta Beverages (Pvt) LTD case No. HC3046/13, the High Court ruled that the provisions of the Constitution “Declaration of rights – right not to be tried again in respect of act for previously convicted or acquitted (570)(i)(m)) – such right is not applicable to civil proceedings arising out of the same act.

In the cited matter Mpofu and a fellow employee were acquitted by the criminal court and were subsequently brought before a disciplinary hearing where their lawyer argued that it was unconstitutional to take Mpofu through a hearing over a matter that had been dealt with to finality by the criminal court. The High Court ruled that the Constitutional clause only relates to criminal matters and does not affect any civil proceeding related to the matter. Because the lawyer and Mpofu had left soon after making their submissions on a point of law the disciplinary authority proceeded with the hearing and Mpofu was dismissed.

The lessons for workers from this case are threefold. First is that what happens in the criminal proceedings has no bearing on the disciplinary hearing and as such the worker should avail himself and present his defence before the disciplinary authority.

The second lesson is that even if one has what he thinks is a strong legal argument, the most prudent thing is to also make submissions on merit so that in the event the legal arguments fail the substantive issues get addressed.

The third lesson is that if one walks out of a hearing, the disciplinary authority can proceed with the hearing to the disadvantage of the employee. In short, even where the worker has a lot of objections, he must have them recorded and proceed with the matter to the end as walking away could be costly if the disciplinary authority concludes the matter without hearing your side.

In conclusion, workers are best advised to make both procedural and substantive submissions in a disciplinary hearing and must never leave when the hearing is in progress as the law sees that as a way of denying yourself the right to be heard.