The facts: A cell phone, a long career and a harsh outcome

Ms Opperman was an administrative clerk at George Hospital in the Western Cape, with more than 28 years of service and an unblemished employment record. The incident that led to her dismissal was, on its face, unremarkable: on 7 March 2019, a Mr Wagenaar left his cellular phone on the desk where Opperman was working after making a delivery to the hospital. The hospital had a procedure in place requiring that lost or found valuables be placed in a safe for safekeeping and returned to their rightful owners upon enquiry.

Opperman did not follow this procedure. Instead, she took the cell phone home. She later handed it to a Mr Malgas but proffered no explanation as to why she had taken it home in the first place. For this, she was dismissed, and when she sought to challenge the arbitration award upholding her dismissal, her review application ultimately failed on procedural grounds.

What is dishonesty, really?

It is in the opening paragraphs of Banderker AJ’s judgment that we find the most instructive guidance. The court quoted with approval the dictum in Lynch & Co v United States Fidelity & Fidelity Guarantee Co [1971] 1 OR 28, in which Fraser J held that “dishonest” is normally used to describe an act where there has been some intent to deceive or cheat, and that to use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning. The court further cited Amcu obo Thlanganyane v Beesnaar NO (2023) 44 ILJ 2210 (LC), in which Sethene AJ held that dishonesty requires both actus reus (physical conduct) and mens rea (mental element): a person must purposefully act with intent to achieve a certain desired outcome for their benefit at the detriment of another. These passages illuminate a critical distinction that is too often blurred in disciplinary proceedings. Conduct may be disobedient, foolish, or in breach of an employer’s rules, but that does not, without more, make it “dishonest”. Dishonesty demands an intent to deceive or cheat, a mental element that transforms mere rule-breaking into something morally culpable in a fundamentally different way.

Why the label matters

The characterisation of misconduct as “dishonesty” is not merely a semantic exercise. In South African labour law, dishonesty is treated as one of the most serious forms of misconduct, often justifying dismissal even for a first offence. If the conduct is more properly characterised as negligence, disobedience or foolishness, the appropriate sanction may be far less severe, particularly where, as in Opperman’s case, the employee has decades of loyal service.

The procedural tragedy

The broader tragedy of Opperman’s case lies in the procedural morass that ultimately defeated her challenge. Having paid her erstwhile attorneys in excess of R80,000 to prosecute the review, she received no satisfactory response from them over a period of years. By the time she instructed new attorneys in September 2023, the damage was done: her application was deemed to have been withdrawn for failure to file the complete record within the prescribed period. The court found that she had failed to demonstrate good cause for revival and that her conduct in taking the cell phone home undermined her prospects of success on the merits in any event. The application was dismissed with costs.

A call for precision

This case should prompt all practitioners, whether in human resources, management or legal advisory roles, to exercise greater precision when framing disciplinary charges. The temptation to reach for the word “dishonesty” is understandable; it conveys moral seriousness and often smooths the path to dismissal. But as the authorities cited by the court make clear, dishonesty is a term of art with specific legal content, requiring proof of an intent to deceive or cheat. Where an employee has breached a rule, even an important one, but there is no evidence of deceptive intent, we must have the discipline to call it what it is: disobedience, negligence or a breach of procedure. We must be mindful of how we use the word “dishonesty”. It is not a catch-all for conduct we disapprove of, nor a synonym for carelessness or poor judgement. It is a specific allegation that requires specific proof, and when we deploy it loosely, we risk visiting upon employees a sanction that their conduct does not truly warrant.