by Dec 22, 2022Employment

Oh, what a tangled web we weave when first we practise to deceive.’[1]

A prudent employer will conduct various screening check(s) as part of the recruitment process and is entitled to make the offer of employment conditional upon successful pre-employment checks. 

The nature of these checks will depend on the inherent job requirements but where an employee is required to hold certain qualifications, a qualification check will be central to such pre-employment checks.

The media has prominently featured qualification fraud over the last few years as high-ranking individuals, both on the public and private sectors, were found to have misrepresented their CVs to secure positions which they would otherwise not have been eligible for.

Whilst such misrepresentation will inevitably lead to disciplinary action being instituted against the unscrupulous employee, the recent judgment of the High Court in Umgeni Water v Sheldon Naidoo gave rise to other dire consequences for Mr Naidoo.

The brief facts

Umgeni Water is involved in the bulk distribution of water in KwaZulu-Natal and has designed a graduate development programme (“the programme”) for which it accepts selected graduates from universities for training.

Mr Naidoo successfully applied for a place in the programme and represented that he had a B.Sc. degree in Engineering that he had obtained from the University of KwaZulu-Natal (“the University”).

Umgeni Water appointed a company to verify graduates’ qualifications, including those of Mr Naidoo. The verification of Mr Naidoo’s degree failed as the University had no record of a B.Sc. Chemical Engineering degree ever being conferred upon him.

Umgeni Water’s obvious stance was that had it known that Mr Naidoo did not have a degree, he would never have been accepted into the programme. The programme was designed for, and intended for, graduates. Having an unqualified person working for it could potentially be extremely hazardous to the well-being of the population who are dependent on Umgeni Water for their water supply.

Umgeni Water claimed repayment of all remuneration paid to Mr Naidoo based on his fraudulent conduct. Mr Naidoo denied that he was liable to repay the remuneration which he earned and contended that he had been paid for a service rendered to Umgeni Water.

The Court held that a contract induced by fraud may either be void or voidable at the instance of the aggrieved party. In determining whether a transaction induced by fraud is void or merely voidable, the test is whether the person seeking to have it set aside concluded the contract wilfully and knowingly with the intention to bring about the legal consequences.

In this instance, Umgeni Water intended to contract with Mr Naidoo on the basis that it believed that he had the required degree from the University. It turned out that he did not have that degree.  Had Umgeni Water known this, it would never have contracted with Mr Naidoo or appointed him to any position. The contract was thus not void but was voidable.

Once Umgeni Water proved the fraud perpetrated on it and that the contract had been terminated, it became entitled to repayment of the amounts that it paid Mr Naidoo.

In ordering repayment of all of the remuneration which Mr Naidoo had earned from his fraudulent conduct, the Court found that “…there was no basis upon which the equitable remedy of restitution should be withheld from [Umgeni Water]. [Mr Naidoo] must be ordered to disgorge what he received from [Umgeni Water] arising out of the fraud that he perpetrated on it..

[1] Sir Walter Scott in his epic poem ‘Marmion: A Tale of Flodden Field,’ 1808.

Should you require any more information, please contact Melanie Hart at