This communication highlights the latest statutory amendments, enactments, case law, notices, and ancillary developments relevant to the SERR Synergy legal compliance products and services as well as the inflation-based (CPIX) increase in monthly/annual premiums.

Latest Statute Updates
Regarding False Or Fraudulent Qualifications

Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997)

The Minister of Employment and Labour, in Government Gazette No. 48092 dated 20 February 2022, published the Earnings threshold of 2023 at R241 110.59 per annum. This threshold will be effective from 1 March 2023.

Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993)

The Director-General of Employment and Labour, in Government Gazette No. 48065 dated 17 February 2023, announced the opening of the 2022 Return of Earnings (ROE) season as from 1 April 2023 to 31 May 2023, together with the Maximum Earnings and Minimum Assessment.

Foodstuffs, Cosmetic and Disinfectants Act, 1972 (Act No. 54 of 1972)

The Minister of Health, in Government Gazette No. 47729 dated 15 December 2022, published the Regulations Governing the Maximum Limits for Pesticide Residues that May Be Present in Foodstuffs: Amendment, 2022 for public comment for three months as of the date of publication of this gazette.
The Minister of Health, in Government Gazette No. 47965 dated 31 January 2023, published the proposed Regulations relating to the Labelling and Advertising of Foodstuffs for public comment for three months as of the date of publication of this gazette.

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Labour Relations Act, 1995 (Act No. 66 of 1995)

The Registrar of Labour Relations, in Government Gazette No. 47669 dated 9 December 2022 gave notice that it received the application for variation of the registered scope of the Bargaining Council for the Fishing Industry.
The Minister of Employment and Labour, in Government Gazette No. 47665 dated 9 December 2022, extended the Main Collective Agreement of the Motor Ferry Industry Bargaining Council of South Africa to Non-Parties which shall remain in force until amended.
The Minister of Employment and Labour, in Government Gazette No. 47669 dated 9 December 2022, extended the Main Collective Agreement of the National Bargaining Council for the Clothing Manufacturing Industry to Non-Parties until 31 August 2024.
The Registrar of Labour Relations, in Government Gazette No. 47729 dated 15 December 2022, gave notice that following an application by the Furniture Bargaining Council, its scope has been varied as contained in this gazette’s Annexure.
The Director: Collective Bargaining, in Government Gazette No. 47765 dated 23 December 2022, extended the period of operation of the Main Collective Agreement of the Bargaining Council for the Fishing Industry to Non-Parties until 30 June 2023.
The Registrar of Labour Relations, in Government Gazette No. 47765 dated 23 December 2022, confirmed the registration of the Public Service and Commercial Union of South Africa (PSCU) as a Trade Union from 2 December 2022.
The Minister of Employment and Labour, in Government Gazette No. 47797 dated 30 December 2022,.extended the period of operation of the National Bargaining Council for the Private Security Sector’s Main Collective Agreement and the Main Collective Agreement to Non-Parties until 28 February 2027.
The Department of Employment and Labour, in Government Gazette No. 47919 dated 27 January 2023, republished the Code of Practice Managing Exposure to SARS-COV-2 in the Workplace, 2022, with a correction specifically referring to the full citation of the Hazardous Biological Agents Regulations published in Government Gazette No. 46051 of 16 March 2022.
The Director: Collective Bargaining, in Government Gazette No. 47963 dated 30 January 2023, extended the period of operation of the Main Collective Agreement of the National Bargaining Council for the Electrical Industry of South Africa by a further period until 31 July 2023.
The Deputy Registrar of Labour Relations, in Government Gazette No. 47974 dated 31 January 2023, cancelled the registration of the South African Correctional Services Workers Union (SACOSWU) as a Trade Union from 30 January 2023.
The period of operation of the Collective Bargaining Levy Agreement’ of the National Bargaining Council for the Electrical Industry of South Africa was extended to 31 July 2023 in Government Gazette No. 48017 dated 10 February 2023.

National Minimum Wage Act, 2018 (Act No. 9 of 2018)

The Minister of Employment and Labour, in Government Gazette No. 48094 dated 21 February 2023, announced that as from 1 March 2023 the National Minimum Wage will be R25,42 for each ordinary hour worked. This amended wage includes domestic workers and farm workers.
Workers employed on expanded public works programmes are entitled to a minimum wage of R13,97 per hour. Learnership allowances and sectoral determinations for the contract cleaning sector have also been amended.
For ease of reference we have also published an article about the Amended National Minimum Wage effective 1 March 2023.

Occupational Health and Safety Act, 1993 (Act No. 85 of 1993)

The Minister of Employment and Labour, in Government Gazette No. 47970 dated 31 January 2023, promulgated the Major Hazard Installation Regulations, 2022.

Skills Development Act, 1998 (Act No. 97 of 1998)

The Minister of Higher Education, Science and Innovation, in Government Gazette No. 47926 dated 27 January 2023, published the Draft Sector Education and Training Authorities (SETAs) Grant Regulations regarding monies received by a SETA and related matters, for commentary by interested parties. Comments must reach the Department within 21 calendar days after this gazette’s publication date.

Protection of Personal Information Act, 2013 (Act No. 4 of 2013)

The Information Regulator (Regulator), in Government Gazette No. 48062 dated 17 February 2023, invited interested parties to submit written comments on the proposed draft Rules of Procedure for the Enforcement Committee, on or before 24 March 2023.

When a company starts hiring personnel, the interviewing process is an important part of the process and the decision to appoint an applicant in most instances depends on the applicant’s qualifications.

Below we discuss a few important questions and highlight the latest case law on the matter of submission of false qualifications.

Q: May an employer request proof of an applicant’s qualifications?

Yes. For some positions or professions, qualifications are a prerequisite. It is always advisable for an employer to verify any qualification of the applicant albeit not always pertaining to the interviewing position.

Q: What type of proof will be deemed sufficient?

Most tertiary education institutions are equipped to provide the student with a Letter of Good Standing in which the institution lists all the qualifications awarded to the student. The company or employer can, as an alternative or in addition to the Letter of Good Standing, also request copies of the qualification(s) certified by a Commissioner of Oaths.

Given the technological and digital era in which we live, it is possible for qualifications to be forged. For this reason the employer or company may, as part of its interviewing process, obtain the applicant’s consent, preferably in writing, to approach the institution which had awarded the qualification(s), and thereafter contact the institution in writing to confirm that the qualifications are true and verified. Another option available to the employer or company is to use the services of a third party to verify the information and/or qualifications on their behalf.

Q: What can an employer or company do, should it be discovered at a later stage that an employee had falsely claimed to have obtained a qualification(s)?

The employer or company is entitled to commence with disciplinary action against the errant employee regardless of his or her position and, with sufficient evidence, dismiss the employee for dishonest behaviour.

The case study below illustrates the position taken by an employer who, when the employee was no longer in its employ, sought a monetary refund of all salary payments made to the individual during his or her employment. Take note that once the employment relationship has been terminated, any action taken by the former employer or employee against one another will be by means of civil action. The parties will need to approach an attorney to pursue such a matter in civil proceedings.

Q: Why is it important for an employer to ensure that the qualifications presented by its employees are true and valid?

In order to work in a certain industry or to perform certain duties, an employee will be required to have obtained a specific qualification.

The validity of qualifications is important from the perspective of a company’s clients as the clients pay for certain services and are assured that their business interests are attended to by qualified persons, which also strengthens the trust between a company and its clients.

Furthermore, the Umgeni case (below) illustrates another important point, namely how an error in performing employment duties through a lack of knowledge can have serious consequences.

In the case of Umgeni Water v Naidoo and Another (11489/2017P) [2022] ZAKZPHC 80 (15 December 2022), Mr Naidoo was employed based on a false claim that he had obtained an engineering degree from the University of KwaZulu-Natal for Umgeni Water’s graduate programme in 2008. The employer (Umgeni Water) conceded that upon hiring Mr Naidoo, his credentials were not verified. However, eight (8) years later in 2016, Mr Naidoo applied for appointment as a process technician. His employment commenced in 2008 and during the 2016 application process, the employer hired a private company to verify qualifications. It was at this point that a discrepancy in Naidoo’s qualification was uncovered. It was established that Mr Naidoo had fraudulently submitted a copy of a B.Sc. Chemical Engineering degree and accompanying academic records (results/marks) as his own.

Mr Naidoo was afforded multiple opportunities to substantiate his claim of obtaining the degree and academic results, but to no avail. Upon facing these discrepancies, Mr Naidoo tendered his resignation; however, his resignation was rejected as disciplinary proceedings had already been instituted against him. Mr Naidoo then submitted his second resignation indicating that he would resign with immediate effect based on a medical condition, which was accepted by the employer. The employer instituted civil proceedings against Mr Naidoo and approached the KwaZulu-Natal High Court.

During the court proceedings, one of the company’s witnesses testified as to the reasons for their requirement of hiring qualified personnel, namely that having an unqualified person working for the employer could potentially be extremely hazardous to the well-being of a large number of people who are dependent on water supplied to them by the employer. Any error in performing such calculations due to a lack of knowledge could potentially have incredibly serious consequences for the general population.

The court held that Mr Naidoo presented these qualifications in order to secure the employment. His misrepresentations resulted in him being awarded with employment by the employer who would not have employed him had it received the true results.

This conduct illustrated that Mr Naidoo had acted fraudulently. The court stated that Mr Naidoo “set out to deceive and wove his web accordingly. He achieved his goal.” The court ordered Mr Naidoo to pay R2 203 565.04, which is “what he received from the [employer] arising out of the fraud that he perpetrated on it. Furthermore, the employer was entitled to execute this judgment against Mr Naidoo’s provident fund administered by the Umgeni Water Provident Fund.”

Colonel Oosthuizen (Col. Oosthuizen) in the employment of the South African Police Service (SAPS) was falsely accused of racism by two subordinates, namely Warrant Officers (WOs) Adam Sedisa Tikoe and Seiso Christopher Mphana.

At the Klerksdorp Police Station, Col. Oosthuizen held the rank of Lieutenant Colonel (Lt. Col) and Commander of Human Resources Management. The false accusation came in response to Col. Oosthuizen exercising disciplinary action against Tikoe and Mphana for their absenteeism from work. An altercation took place in which Tikoe and Mphana threatened and intimidated Col. Oosthuizen and accused her of calling them the k-word.
Col. Oosthuizen reported the incident internally to the Station Commander in February 2017. The Station Commander asked that Tikoe and Mphana be transferred pending the investigation’ however, they were never transferred. Tikoe and Mphana opened a case of crimen injuria and lodged a grievance in March 2017 against Col. Oosthuizen and demanded that she be transferred. Internal investigations in March 2017 concluded that the complaint against Tikoe and Mphana was sufficiently serious for disciplinary action to be taken against both Warrant Officers.
Tikoe and Mphana’s conversation during which they conspired to falsely accuse Col. Oosthuizen of calling them the k-word was overheard by an SAPS intern, who then reported the insidious plan. Thereafter, Col. Oosthuizen opened a criminal case of crimen injuria and criminal defamation against Tikoe and Mphana. Col. Oosthuizen then lodged a grievance in April 2017 requesting that disciplinary action be taken against Tikoe and Mphana.
However, the matter takes a different route within the scope of vicarious liability of Col. Oosthuizen’s employer as she was the one transferred due to the pending finalisation disciplinary action against her. It came to light that the Provincial Commissioner agreed with the Police and Prisons Civil Rights Union (POPCRU), Tikoe and Mphana’s trade union, to suspend the disciplinary actions against them. Instead, Col. Oosthuizen was under investigation and charged for allegedly contravening the SAPS Disciplinary Regulations for unfair discrimination, or for improper conduct which is in contravention of the Code of Conduct of the Service or the Public Service, whichever may be applicable to her.
Col. Oosthuizen submitted a second grievance in June 2017 due to inter alia, the failure of the SAPS to comply with its own procedures and policies. Col. Oosthuizen was charged internally in August 2017 for using the k-word but was acquitted. Tikoe and Mphana were eventually charged after much correspondence between Col. Oosthuizen’s representing trade union, Solidariteit, and the SAPS. Col. Oosthuizen was not called as a witness in Tikoe and Mphana’s disciplinary hearings and Mphana was found not guilty. Tikoe pleaded guilty and received a written warning and a sanction of one day without payment.
Col. Oosthuizen lodged an application in the Johannesburg Labour Court against the SAPS, the Minister of Police and the National Commissioner of the SAPS for failure to address her grievances relating to unfair discrimination committed by Tikoe and Mphana. It was brought to the attention of the Court that Tikoe and Mphana were found guilty in the Regional Court of the North West Regional Division in October 2020 of crimes such as assault, obstructing the administration of justice and crimen injuria, amongst others. The Court delineated that Tikoe and Mphana were internally charged, found guilty and dismissed for firstly making false statement(s), knowing them to be false, in an affidavit to a Commissioner of Oaths and secondly, injuring, insulting and impairing the dignity of Col. Oosthuizen by painting her as a racist.
The Labour Court had to determine whether the SAPS, the Minister of Police and the National Commissioner of the SAPS were vicariously liable in terms of section 60 of the Employment Equity Act, 1998 (Act No. 55 of 1998) (hereafter EEA) for the racial harassment and bullying of Col. Oosthuizen by Tikoe and Mphana. The court relied on section 60 of the EEA; Samka v Shoprite Checkers (Pty) Ltd and Others (CA15/18) [2020] ZALAC 11; (2020) 41 (ILJ) 1945 (LAC); [2020] 9 BLLR 916 (LAC) (18 May 2020) which endorsed the requirements for the application of section 60 of the EEA as set out in Mokoena and Another v Garden Art (Pty) Ltd and Another (JS373/06) [2007] ZALC 90; [2008] 5 BLLR 428 (LC); and (2008) 29 ILJ 1196 (LC) (3 December 2007). Together with the aforesaid case law, the court also referred to the Code of Good Practice on the Prevention and Elimination of Harassment published in Government Gazette No. 46056 dated 18 March 2022, which codified these requirements stipulating that “failure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time, will render the employer vicariously liable for the conduct of the employee in terms of section 60 of the EEA. This is the case even if the harassment consists of a single incident”.
This Court’s decision sternly concludes that Tikoe and Mphana’s had acted with impunity and that the SAPS had protected them and allowed their conduct to persist for approximately a year. Furthermore, if Tikoe and Mphana had succeeded in their false allegations, Col. Oosthuizen would have been dismissed, as conceded by Brigadier Sibeko who was the main witness for the SAPS, the Minister of Police and the National Commissioner of the SAPS during her cross-examination.
The Court found that the SAPS was vicariously liable for the actionable racial harassment perpetrated by Tikoe and Mphana against Col. Oosthuizen. The Court ordered that the SAPS tender a written apology to Col. Oosthuizen and that the SAPS, the Minister of Police and the National Commissioner of the SAPS pay R300 000.00 to Col. Oosthuizen.

This case illustrates the importance of an employer’s duty to ensure a safe workplace for its employees and to have policies and procedures in place to cement this duty. Failure to do so, would be regarded as a dereliction of duty by the employer. Furthermore, the case emphasised that an employer can be held vicariously liable for the actionable harassment perpetrated by an employee against a colleague in the event that the employer refrains or refuses to act within the EEA and relevant labour law requirements. This judgement also sends a strong message to all employers that there are severe consequences when perpetrators are protected.

LEGISLATIVE AMENDMENT AND DEVELOPMENT UPDATE 1 OF 2023 & ANNUAL PRICE INCREASES