Dealing with fraudsters and fakes in the workplace

The National Qualifications Framework Act was signed into law in 2019, paving the way for long-overdue action to be taken against rogues who present fraudulent qualifications, seeking to gain entry to employment or positions of power and influence. Unfortunately, more than four years went by before the president quietly enacted (most of) its provisions in October 2023.   

It is not unusual for employment lawyers to receive instructions from employers who have discovered that one (or more) of their employees have suspicious qualifications. In 2019 there was the well-publicised case of Daniel Mthimkhulu, who had convinced the Passenger Rail Agency SA (Prasa) — initially, at least — that he had obtained not only an undergraduate degree from the Vaal University of Technology but also a doctorate from the Technical University of Munich.

This was not true, but by the time the gambit was discovered by Prasa he had been paid several million rand in remuneration because of his misrepresentation. Subsequent legal proceedings did not go well for Mthimkhulu. 

Similarly, Sheldon Naidoo applied for a position at Umgeni Water and was appointed on the strength of a BSc degree and academic results he had allegedly attained at the University of KwaZulu-Natal. After discovering that his qualifications were bogus, Umgeni Water successfully claimed back every cent it had paid to Naidoo based on his fraudulent misrepresentation. 

The amendments to the law that finally came into effect last year are an important step in dealing with charlatans seeking to dupe unsuspecting employers. The important changes include that: 

• The SA Qualifications Authority (Saqa) is required to verify all qualifications referred to it and make a decision on the status thereof; 
• Saqa must maintain a national student records database comprising registers of qualifications and details of the education institution that awarded the qualification; 
• Saqa must maintain a separate register of professional designations, and establish and maintain registers of misrepresented qualifications and fraudulent qualifications; 
• If, after evaluation, a record is found to be inauthentic, misrepresented or fraudulent, Saqa must refer such a finding or information to the relevant professional body, and must inform the requester and holder of the qualification of this, and record that finding in the respective register; 
• Professional bodies must apply to Saqa to be registered on the designated register for that profession; 
• Should Saqa find that a qualification is authentic but is not contained on the national learners’ database, it must record that qualification on the database.

The following offences have been set out in section 32B of the act, which are punishable by a fine or five years’ imprisonment: making or causing a false entry to be made in the national learners’ records database or the misrepresented or fraudulent register; being a party to the falsification or dissemination or publication of a qualification of any person or the records of the national learners’ database or the misrepresented or fraudulent register; and claiming to offer or hold a qualification which is registered in terms of the act but it is not. 

Should an offence in terms of the act be committed with an intention to gain financially or receive any advantage, that conduct is punishable by a fine or imprisonment of up to 10 years. 

Section 32A(1) of the act, which places an obligation on employers to validate any qualification presented to them by ensuring that the qualification is registered on the national learners’ records database before appointing the prospective employee and/or job seeker has not been enacted. The reason for this is likely to allow Saqa a period of time to comply with its additional obligations under the new amendments.  

The act is understandably quite comprehensive when dealing with fraudulent or misrepresented qualifications. It not only places certain obligations on Saqa but also education institutions and people who hold those qualifications. Soon, employers will also be folded into this mix. The reason for this strict regulation is quite clear: fraudsters must be stopped at all costs.

In the meantime, employers will need to reconsider their existing policies and procedures, and possibly adopt more robust ones to weed out fraudsters and opportunists from joining or climbing their ranks. Thorough background and reference checks should be completed during recruitment processes and any candidates with suspicious qualifications should be reported to SAQA for further investigation.

Where legal proceedings can be taken against fraudsters, employers should take the necessary steps to ensure they are held accountable. The need for this is even more important in view of the dysfunctional state of the SA Police Service.   

• Coetzer is head of employment, Wingfield a senior associate, and Smith an associate, at Cowan-Harper-Madikizela.