Umgeni Water v Naidoo and Another (11489/2017P) [2022] ZAKZPHC 72 (15 December 2022)
“Oh, what a tangled web we weave when first we practice to deceive.”[1]
An employee, one Sheldon Naidoo (SN), who worked at Umgeni Water was appointed as part of the employer’s graduate programme. One of the requirements for admission was that the candidate must possess a degree in chemical engineering.
SN had attached a chemical engineering degree, which he claimed was conferred on him by the University of KwaZulu-Natal, to his application form.
Eight years went by before the validity of SN’s qualification was tested when he applied for another position as a process technician. He had to once again attach his qualification to the application form. It was then that Umgeni Water queried the validity of the degree.
Umgeni Water conducted a qualification check and sent the supposed degree to the KwaZulu-Natal University for verification. To everyone’s surprise, the University had no records of SN having been awarded the degree.
Umgeni Water confronted SN about the fraudulent degree. He was given the benefit of the doubt and was asked to at least submit his academic transcripts, graduation photos, or the names of fellow students he would have worked with in his final year. SN said that he had misplaced his academic transcripts, he had no photos of the graduation because he did not attend his graduation ceremony, and he could not recall the names of the students he would have worked with in his final year.
SN, feeling the pressure, resigned with immediate effect on 29 November 2016, claiming he had an illness that posed a serious threat to his life and on medical advice, he was compelled to stop working. A little too convenient, perhaps?
Umgeni Water then decided to sue SN for the amount of money paid to him during his employment. Umgeni Water claimed that the employment contract had been invalid from the start as SN had fraudulently submitted a false degree.
This case went all the way to the Pietermaritzburg High Court for adjudication. The Court had to determine whether SN had indeed graduated from the University of KwaZulu-Natal with a chemical engineering degree, or if the degree was fraudulent as then the contract of employment was null and void, which may permit the employer to claim for the repayment of all monies SN had earned in the eight years he worked for Umgeni Water.
The Court ruled it was apparent that the degree was in fact fraudulent. Then the Court held that no person should be unjustly enriched by gross misrepresentation. SN had benefitted from eight years of earnings and should never have been allowed to even be appointed.
So, once the contract between the parties was determined to be null and void from the beginning, Umgeni Water had a valid claim for the repayment of monies.
Umgeni Water claimed a sum of R2 203 565,04 as the amount it paid SN over the years. There was no way SN had that sum of money to repay Umgeni Water. So, the remedy available to Umgeni Water was that they were authorised to attach the monies from SN’s pension fund. Section 37D(1)(b) of the Pension fund Act allows employers who have been victim to fraud to recover monies lost in this way.
Legislation
As from 2019, the National Qualifications Framework Amendment Act stipulates that it is a criminal offence to misrepresent qualifications. The punishment for doing so may be a hefty fine and / or imprisonment for a period of up to five years. The National Qualifications Framework, furthermore, advises employers to conduct verification checks with the National Learners’ Records Database before appointing potential employees.[2]
Verification checks are indeed vitally important and should form part of the application process. Conducting these checks will protect the employer against the potential risk of financial damages as a result of an applicant’s misrepresentation. What often happens is that employers are so desperate to fill a vacancy and appoint the employee they believe meets all the minimum requirements for the job, that they only conduct the checks at a later stage. However, it is better to delay the appointment process until all the relevant verifications have been done.
Employers are obliged to report this kind of misrepresentation to the state under the Prevention and Combatting of Corrupt Activities Act. An employee who participates in fraud, such as in the case of SN and Umgeni Water, should be criminally liable for such deception.[3]
[1] Sir Walter Scott, Marmion: A tale of Flodden Field. 1808.
[2] Baker McKenzie, Johan Botes, Tracy van der Kolff, Francis Mayembe. January 18, 2023.
[3] Baker McKenzie supra.
Source: www.labourguide.co.za | By Tessa Kassel (General, Domestic and Professional Employer’s Organisation)
