“Just Following Orders” is Not a Defence…
As we grow up there are a couple of life lessons we come to learn –
Ø We are taught the moral difference between right and wrong;
Ø We learn how to treat others with respect;
Ø We learn to respect our elders;
Ø We don’t lie, we don’t cheat, we don’t commit crimes like murder.
You know, the basics (well, most of us anyway).
Ideally, we grow up with – ordinarily – a set of morals, integrity, and ethics that will take us through childhood, into adulthood. Morals that will serve us for the better part of our lives.
And with these sets of morals, we learn how to navigate our way through difficult times and choppy waters. Hopefully, they will get us to the other side unscathed. Sure, life is strange, it’s hard and it’s sometimes complicated. It’s also largely unpredictable and how we will act in any given situation is almost entirely dependent on the circumstances. One would like to think that your morals and ethics hold true. That you can overcome the obstacles in your way whilst holding on tightly to the things you were taught as you grew up.
But situations are not always so black and white. Sometimes they can be a little grey. And it’s how we react to these grey areas that sets us apart from others – in both good ways. And most definitely in bad ways.
If your job, your livelihood, your way of supporting your family and you is suddenly held under a microscope – how would you act?
Would you admit to the mistakes and face the consequences? We all would like to think we would do that. But would we all face the shooting squad, our smile on knowing we had done the right thing?
Or.
Or would we look for a way out? A way to excuse our behavior (if we could)?
Under Orders is Not an Excuse
“Because I was told to”.
Well, there have been worse excuses in history. But could you be compelled to do something – knowing it was wrong – and get away with it with that defence?
That excuse may have been used before – aka World War II. But who are we to judge? What are we talking about exactly? The matter of Mbuyane v Dekker NO and Others (JR1173/2020) [2025] ZALCJHB 224. A recent Labour Court case confirms that an employee cannot justify misconduct by claiming they were ’following orders’ where such an order was an unlawful one.
One would think that was obvious, but nevertheless… again, no judgements.
The Labour Court drew a firm line on workplace ethics: integrity cannot be compromised, even under pressure from a superior.
As stated by Bowmans – “The case reaffirms that, dishonesty, even when instructed, breaches the trust at the heart of the employment relationship and can justify a dismissal”.
The Matter of Mbuyane vs Dekker
Banele Innocent Mbuyane (Mbuyane), a former treasury custodian at Standard Bank, shared operational duties with his supervisor, Ms Nkosi (Nkosi). In conducting this function, Mbuyane and Nkosi were responsible for receiving cash from a security company, SBV. If the amount received was incorrect, they had to return the cash to SBV and prepare balance sheets that correctly corresponded with the amounts received.
In October 2019, Mbuyane discovered a shortfall in a coinage bag and alerted Nkosi. Despite agreeing to return the bag, Nkosi instructed him to record the full amount that was originally ordered instead of the actual amount received. Mbuyane complied, and the falsified balance was submitted, misrepresenting the bank’s actual cash position.
A surprise inspection by the risk mitigation team at Standard Bank uncovered the discrepancy, along with two other shortfalls. Both Mbuyane and Nkosi were dismissed. Mbuyane challenged his dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA), maintaining that he had simply followed a superior’s instruction.
Before the CCMA, the main issue was whether Mbuyane’s conduct of knowingly submitting a false cash balance at the instruction of his supervisor amounted to serious misconduct. In addition, the CCMA had to decide whether dismissal was an appropriate and fair sanction under the circumstances.
The arbitrator found that Mbuyane’s conduct amounted to serious misconduct despite acting on his supervisor’s instruction. Mbuyane’s failure to escalate the misrepresentation to higher management was seen as a critical breach of trust. Moreover, the CCMA rejected the notion of an accepted informal practice of overlooking shortfalls. No practice could override the bank’s formal policies and ethical standards. And one would think, no practice should override what we are taught is the difference between right and wrong.
Seeking a remedy, Mbuyane approached the Labour Court to review the arbitration award. The Court upheld the findings of dishonesty, holding that “compliance with an unlawful instruction does not excuse misconduct.” It was found that Mbuyane deliberately submitted inaccurate records over two days and had a duty to act lawfully, regardless of who issued the directive.
Defences based on insufficient training did not hold water. “Testimony by the branch manager confirmed that no specific training was available for treasury custodians and that expectations were clear for a person in Mbuyane’s position. Even if an informal practice of retaining short coin bags existed, it was unauthorised and irrelevant to the charge of misrepresentation.
The argument that Mbuyane lacked fraudulent intent was dismissed as immaterial. The case rested on dishonesty, not fraud, and the Court held that the decision to dismiss was fair, even if another arbitrator might have considered a lesser sanction.
Ultimately, the Labour Court dismissed the review, reinforcing the legal principle that instructions from superiors do not absolve employees from wrongdoing – especially where such an instruction was an unlawful one. The judgment reasserts the critical role of ethical conduct in maintaining institutional credibility (iol).
How About When Your Future Depends on It?
The candidate attorney.
A stressed out, worked to the bone, sleep deprived, mess, masquerading as a trainee lawyer. That’s about the sum of it.
Working hard under the guidance of a principal until the day they have completed their Practical Legal Training (PLT) and can then be admitted as an attorney. It’s a long, arduous, pride destroying job. Your feet are run through, your mind is shot – all because you have been on your feet all day in court, serving papers, drafting pleadings and still have to ensure that you undertake the instructions of your principal. Usually to a T. Your superior for want of a better description. And often the decider of your fate – as far as actually being admitted is concerned – your principal is your “jailor,” your overseer, your boss for the first two years of your professional career.
Granted, that may not be everyone’s experience and is a massive generalisation. But it is most often the case.
Articles are – infamously – known as the worst two years of your life. Big firm, small firm, any firm. Sometimes you get enormously lucky and other times you don’t.
All you know is, you have got to get through it and learn as much as you possibly can. Come out the other side smarter, more prepared, and armed (theoretically) with all the legal knowledge you need to run your own practice.
What then happens if – upon finishing articles but prior to being admitted – you are told to appear in Court for your principal but know you are neither attorney nor candidate attorney anymore.
Knowing that your application to be Admitted as an attorney requires the input and signature of your principal. Knowing that it’s the rest of your professional life vs one small appearance in Court. Who could it hurt?
Your future hangs in the balance.
In an article titled Balancing act between CAs and principals, there is indeed a balancing act of power that needs to be managed with kit gloves. In the article, the following is set out –
“The relationship between candidate attorneys (CAs) and principals is, by nature, open to conflict. The power dynamic between the two groups is unequal and their interaction can affect the CA’s success or failure in the profession.
A CA’s experience during his articles forms the base for his legal career.”
In a more recent article titled The silent struggle: Underpaid and undervalued – candidate attorneys in South Africa’s legal trenches (confirming that nothing has changed in the 12 years since the publication of the previous article) –
“In the grand halls of South African justice, where legal titans argue for liberty and order, the heartbeat of the profession – the candidate attorney – often works in silence, buried under paperwork, pressure, and profound neglect. The glamour that the legal field projects belies the gritty, underpaid, and toxic reality that many candidate attorneys endure in their mandatory two-year articles of clerkship.”
There is a fear that runs through the hearts of many a candidate attorney – just get through it. Just get articles over with. Get it done so you can move on.
And with that balancing on the scale, when you are told to appear in Court. You appear.
However, the Legal Practice Council issued the following letter titled Review Judgements: Appearance in courts without Right of Appearance, in which the following was set out –
“Below are high court review judgments concerning finalised criminal matters having to be referred back to the trial court for the trial to start afresh because the accused persons were represented by persons who are no longer candidate legal practitioners after the expiry of the period of their contract of practical vocational training nor admitted as legal practitioners who are enrolled as practising with the Legal Practice Council as required in terms of the Legal Practice Act No 28 of 2014 ("the LPA").
The result of this irregular conduct is that the trial of the accused persons who had been charged and convicted of serious crimes has been found not to have been fair as required in terms of the law. In one judgment the Judges pointed out that this irregular conduct, which is a concern, has become prevalent and the courts need to deal with it decisively as "it is the responsibility of the courts to put an end to such conduct before it spreads like wild fires".
In the other judgment, the Judges stated that we should advise all the courts of the candidates whose period of contract of practical vocational training have expired.
Section 33 of the LPA provides for the authority to render legal services.
Subsection 33(2) of the LPA provides that: "No person other than a legal practitioner may hold himself pr herself out as a legal practitioner or make any representation or use any type or description indicating or implying that he or she is a legal practitioner.
Subsection 33(3) of the LPA provides that: "No person may, in expectation of any fee, commission, gain or reward, directly or indirectly, perform any act or render any service which in terms of any law may only be done by an advocate, attorney, conveyancer or notary, as the case may be"
Subsection 93(2) of the LPA provides that: "Any person who contravenes the provisions of section 33 commits an offence and is liable on conviction to a fine or to imprisonment of a period not exceeding two years or to both such a fine and imprisonment.
Persons who are no longer candidate legal practitioners after the expiry of the period of their contract of practical vocational training nor admitted as legal practitioners who are enrolled as practising with the Legal Practice Council must not continue to appear in courts in a representative capacity on behalf of any person until such time that they are admitted as legal practitioners and enrolled with the Legal Practice Council either as practising attorneys or practising advocates.
As it has already been stated that continuing to make court appearances in a representative capacity in contravention of the provisions of section 33 of the LPA is a criminal offence and has an impact on the requirement for an aspirant legal practitioner to be a "fit and proper person" to be admitted as a legal practitioner and to remain as such after admission (Letter).”
With all that said and while court etiquette and rules must be abided by, the overarching question here – we think – is not so much the conduct of the candidate attorney (who while undertaking the orders of his/her/their principal risks their future occupation) but rather why a candidate attorney would do that in the first place? Knowing what’s at stake.
We think – and while we agree that you should be held liable for your actions (especially when unlawful) despite being ordered by your boss – that the principals that are ordering their candidate attorneys to appear in court knowing full well that they are no longer candidates but are not as yet admitted, should be investigated and their conduct analysed themselves.
Not all the blame rests with the candidate attorney.
Only someone in a desperate position would risk their future admittance as an attorney for appearing in court when they aren’t supposed to. Sure, penalise the candidate but don’t refuse their application. Insofar as the punishment, let it fit the crime. And if that crime is desperately doing what you need to so that articles can end, then perhaps the Courts should mitigate the punishment handed out.
Perhaps someone else is really to blame here.
And to that we say - "Fiat justitia, ruat caelum” ("Let justice be done, though the heavens fall,").
We have taken the utmost care to ensure that the above information is correct, but we urge you to consult with a suitably qualified legal practitioner who will be able to answer any questions you may have on labour law disputes. In this regard, we would be more than happy to support you. Please feel free to contact us to see how we can best assist.
We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart!
(Sources used and to whom we give thanks – Bowmans; iol; De Rebus here, here and here; Maintaining Appearances and Review Judgements: Appearance in courts without Right of Appearance).
