11 Jun 2024


by Hope Mboweni, Associate, Durban,
Practice Area(s): Employment |

Employees are permitted to make demands or raise issues with their Employers. However, in doing so, they must ensure that they follow proper procedures, and their demands are lawful. Where an Employer is faced with an unlawful demand from Employees, it may refuse to accede to such demand until such a time that the Employees ensure that their demand is lawful. However, what steps can Employers take when they are faced with an unlawful demand which amounts to a criminal offence?

On 13 May 2024, the High Court, Gauteng Division (Pretoria) in the case of Seothaeng v The State, delivered its judgment wherein Clement Onthusitse Seothaeng (“the Appellant”) had appealed against the conviction and sentence by the Pretoria North Regional Court. He was convicted to 10 years imprisonment for extortion and 5 years imprisonment for malicious injury to property. Unfortunately for the Appellant, the Regional Court did not order for the sentences to run concurrently.

The genesis of the matter started in 2017 when the Risk Manager for McDonald’s South Africa received a report from the Zambezi McDonald’s restaurant that there was a video clip depicting someone wearing a McDonald’s uniform spitting on an ice cream cup and placing his hands into a cooldrink with a threat that the video would be circulated on social media unless an amount of R100 000.00 was paid within two days. The threat was also escalated to the CEO of McDonald’s. It goes without saying that this threat had the potential to cause significant harm to the Employer’s reputation.

Upon investigation, it was discovered that the threat was made by the Appellant who was employed at the Zambezi McDonald’s restaurant. The Appellant’s explanation behind the threat was that he was angry at how he had been treated by McDonald’s. The Appellant was thereafter arrested for extortion and malicious injury to property for his actions. During the proceedings in the Regional Court, the Appellant initially pleaded not guilty to the charges before making admissions in terms of Section 220 of the Criminal Procedure Act.

For the purposes of this article, we focus on the Labour law related issues, the right of Employers to lay criminal charges against Employees and some of the lessons that can be taken by both Employers and Employees from this case.

The Appellant raised several grounds of appeal which amongst others include: the offence was motivated by anger towards his Employer, the Regional Court committed a misdirection by overemphasising the offence and failing to have regard to the cumulative effect of the sentence and there were good prospects that the Appellant would be rehabilitated.

In opposition, the State argued that the Appellant broke the trust relationship between the parties, the offence was premeditated, and it exhibited a measure of intelligence on the part of the Appellant to come up with the plan to extort money from his Employer.

The High Court held that the fact that the offence was motivated by anger towards the Employer does not reduce the moral blameworthiness of the Appellant’s conduct. The offence was premeditated, and the Appellant had an opportunity to change his mind and not proceed to commit the offence in question. Furthermore, the Appellant had enjoyed a trust relationship with the Employer, and by extorting money from the latter, he broke the trust relationship. The High Court was of the view that if it was to interfere with the sentence imposed by the Regional Court, it would send the wrong message and negate the seriousness of these kind of offences.

The offences of extortion and malicious damage to property are serious offences which do not only warrant the institution of disciplinary proceedings, but also warrant instituting criminal charges. Clearly, if the Employer acceded to the Employee’s demand, the Employee would have most likely continued to commit such offences or even influence other employees to make such bizarre demands.

The High Court concluded that the Regional Court failed to consider the cumulative effect of the sentence and it misdirected itself by treating the offences as separate offences disregarding the intentions of the Appellant. Therefore, instances where the offences constitute one continuous incident, an order that the sentence should run concurrently should be made. As a result, the High Court upheld the appeal and ordered that the Appellant be sentenced to 10 years imprisonment for extortion, 5 years imprisonment for malicious injury to property and the two years of the second charge to run concurrently with the sentence imposed on the first charge. The Appellant was further declared unfit to possess a firearm.

It is important for Employers to note that they are not limited to only instituting disciplinary proceedings against Employees for misconduct which constitute a criminal offence. It has been firmly established by our Courts that criminal charges laid by an Employer against an Employee does not stand in the way of that Employer subjecting the Employee to a disciplinary enquiry in respect of the same charge. Employers are advised to also lay criminal charges when they are faced with serious acts of misconduct which also amount to criminal offences as in the case of Seothaeng. Other common acts of misconduct which may necessitate Employers to lay criminal charges against Employees in addition to disciplinary proceedings include, but not limited to fraud, financial misconduct, misrepresentation of qualifications, theft and assault in the workplace.

Employees are expected to act in the best interests of their Employers and should ensure that the trust relationship, on which the employment relationship is built, remains intact. Whenever Employees have disputes with their Employers, they are advised to follow proper procedures in addressing them and they should not take matters into their own hands.  

Such inappropriate acts by the Appellant have no place in our society and the workplace. Therefore, this case should be a warning to all employees that they should not bite the hand that feeds them, especially in this economy with high levels of unemployment.