Reply To: WHICH PARTY HAS THE ONUS OF PROOF?

[Anna Peal]

It is entirely possible that Mothlang could have hacked the Persal system. While we don’t know that he did, the fact that this was a possibility makes it possible that the two dismissed employees may not have been guilty. More importantly, even if they were guilty, it was the legal duty of the employer to prove their guilt. And finding them guilty because they had been unable to explain how Mothlang obtained their passwords is not an acceptable reason for a guilty verdict. Section 188 of the LRA clearly places the onus of proof on the employer. Furthermore, South Africa’s Constitution requires accused persons to be assumed innocent unless proven guilty. Therefore, the employees had no legal duty to prove themselves innocent by explaining how Mothlang could have obtained their passwords. This renders the Court’s decision in this case incorrect.