City of Tshwane Metropolitan Municipality v Engineering Council of South Africa and Another (532/08) [2009] ZASCA 151; 2010 (2) SA 333 (SCA) ; (2010) 31 ILJ 322 (SCA) ; [2010] 3 BLLR 229 (SCA) (27 November 2009)

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[2009] ZASCA 151
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City of Tshwane Metropolitan Municipality v Engineering Council of South Africa and Another (532/08) [2009] ZASCA 151; 2010 (2) SA 333 (SCA) ; (2010) 31 ILJ 322 (SCA) ; [2010] 3 BLLR 229 (SCA) (27 November 2009)

Links to summary

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case no: 532/08
In
the matter between:
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
Appellant
and
ENGINEERING COUNCIL OF SOUTH AFRICA
First Respondent
ADRIANUS JACOBUS WEYERS Second
Respondent
Neutral citation:
City
of Tshwane Metropolitan Municipality v Engineering Council of South
Africa and another
(532/08)
[2009]
ZASCA 151
(27 November 2009)
Coram:
MPATI P,
NAVSA, NUGENT and MLAMBO JJA AND WALLIS AJA
Heard
:
16
November
2009
Delivered
:
27
November 2009
Summary: Whistleblower – employee writing a letter
to Engineering Council and Department of Labour concerning
appointments to
posts – whether contents of the letter constituted
a protected disclosure under the
Protected Disclosures Act 26 of
2000
.
ORDER
On appeal from:
High
Court at Pretoria (Prinsloo J sitting as court of first instance).
The appeal is dismissed with costs, such costs to
include those consequent upon the employment of two counsel.
JUDGMENT
WALLIS AJA (MPATI P, NAVSA,
NUGENT AND MLAMBO JJA concurring)
[1] Mr Weyers, the second respondent, is an
electrical engineer holding a Masters degree in engineering and
registered as a professional
engineer with the first respondent in
terms of
section 18(1)(a)(i) of the Engineering
Profession Act, 46 of 2000 (the “EPA”). He has been employed by
the appellant since 1996
and since 2003 has held the position of
Managing Engineer: Power System Control (PSC). As such he is
responsible for Tshwane’s
PSC centre the primary function of which
is to ensure that correct systems of configuration and safety
measures are applied in
Tshwane’s high, medium and low voltage
networks so as to ensure continuity, quality and safety of electrical
supply to all consumers
within the metropolitan area.
[2] On 31
August 2005 Mr Weyers addressed a letter to Dr Lukhwareni, the
Strategic Executive Officer (SEO) of the Electricity Department,
in
which he expressed concerns about the employment of new system
operators in the PSC centre. He copied the letter to Mr Benny

Mahlangu, the General Manager: Electricity Development and Energy
Business and to the Municipal Manager. Whilst it is clear that
the
contents of the letter were not well received, at least by Mr
Mahlangu, it is not suggested that there was anything untoward
in his
addressing the letter to them. However he also sent the letter to the
Department of Labour and to the Engineering Council,
which is
constituted in terms of the EPA and discharges a range of statutory
responsibilities, most importantly for present purposes
dealing with
improper conduct by professional engineers.
[3] On 9
November 2005 Mr Weyers was suspended and disciplinary proceedings
were commenced against him. Initially he faced a number
of charges,
but at the hearing all charges were abandoned other than one ‘that
you copied a letter you had written to the SEO
Electricity Department
to … the Department of Labour and the Engineering Council of South
Africa … without authorisation and/or
prior approval and/or
knowledge of the Head of the Electricity Department’ When he was
convicted on that charge, he approached
the Pretoria High Court, with
the support of the Engineering Council, for an order interdicting the
appellant from imposing any
disciplinary sanction upon him. That
order was granted on the basis that sending the letter to these
parties was a protected disclosure
under various statutes and as such
that it was impermissible for the municipality to impose a
disciplinary sanction on Mr Weyers
for doing so. This appeal lies
against that order with the leave of the court below.
[4] In order to appreciate the
circumstances leading up to the sending of the letter and the basis
for the claim that its being
copied to parties outside the
municipality is a protected disclosure it is necessary to give some
background based on the facts
that are not in dispute between the
parties. One of the major functions of the PSC centre is to ensure
safe electrical operations
on the network. Key employees in this
regard are the system operators who are all qualified electricians,
who have completed an
11kV switching course,
1
and who have the necessary technical knowledge and skill to undertake
this work, which is more complex and potentially more dangerous
than
the work of an electrician working solely on low voltage systems. All
qualified electricians are qualified to work on low
voltage networks
(400 volts and below) but work on medium and high voltage networks
(11kV and 132kV respectively) requires specialist
skill and knowledge
because of the high levels of danger involved.
[5] The
system operators work with the network when it is live at all voltage
levels, whilst electricians in the municipality’s
Maintenance and
Construction depots work on the low voltage and medium voltage
sections of the network and then only when they
have permission from
the PSC centre. Generally (there may be exceptions) they only work on
a network when the system is dead and
certified to be such by a PSC
system operator. The PSC section deals with complaints about
electrical shocks; takes steps to prevent
power failures in overload
conditions and reconnects a network after a power failure. It is
accepted that the higher the voltage
level in a network the higher
the fault level (the energy or ‘spark’ emitted if a fault occurs)
and therefore the more potentially
dangerous the associated
electrical work on such a network. Every time an electrical
connection in a network is broken by a switch
operation it also
creates an electrical spark the size of which is dependent upon the
voltage level in the system. The system operators
work with high,
medium and low voltages.
[6] The
electrical work performed by the PSC system operators has
considerably greater potential for negative consequences than
the
work done by electricians in the Maintenance and Construction depots.
The latter’s actions may result in the power supply
to between one
and twenty consumers being affected. Errors by system operators may
cause a power failure in an entire suburb or
even throughout the
municipality.
[7] All of
the above is common cause on the papers. There was some dispute
whether the work performed by system operators is, as
Mr Weyers
contends, significantly more dangerous than the work done by
electricians in the Maintenance and Construction depots.
However,
that was not persisted in before us and can be disregarded. On the
basis of the matters that are common cause it is an
obvious
conclusion that the systems operators perform more dangerous work and
consequently must be more skilled than ordinary electricians,
even if
the additional competence is something that can be acquired with
training and experience.
[8] Turning
then to the circumstances leading up to Mr Weyers writing the letter
in question these emerge from the following facts
that are either
common cause or are no longer in dispute because the appellant no
longer seeks to rely on the series of bald and
unsupported denials in
relation thereto contained in the answering affidavit. The starting
point is that in 2005 there was a significant
shortfall in the
municipality’s complement of system operators with only 13 of the
48 posts specified in the approved structure
for the PSC section
being filled. In the result those who were so employed were required
to perform excessive and dangerous levels
of overtime, well in excess
of 60 hours a month and sometimes running to as much as 100 hours a
month. The municipality accepts
that staff was overworked and blamed
exhaustion for accidents. In February 2005 Mr Weyers was given
permission to recruit
a foreman and eight additional system operators
in order to address this problem.
[9] In late February Mr Weyers and three of his
subordinates prepared a test when considering applications for a
system operator
foreman. This test was approved by Mr Booysen, who
was Mr Weyers’ immediate superior, and had been sent to Ms Zaayman,
the Deputy
Manager: Recruitment and Selection in the human resources
department. She returned it with the comment that it asked the right
type of question but was possibly a little long. She accordingly said
that Mr Weyers should ensure that candidates had sufficient
time to
answer the test. The test was used to shortlist candidates for the
post of foreman in April 2005 and, after interviews
had been
conducted, led to a Mr von Gordon being appointed. It is plain from
the internal e-mails that passed between Mr Weyers,
Mr Booysen and Mr
Ratsiane, the Manager: Recruitment and Selection in the human
resources section of the electricity department,
that the
last-mentioned was aware that the test had been used to select those
who were short-listed and raised no objection to
its use as a tool
for that purposes.
[10]
Applications for the system operators’ posts were considered at the
same time as the foreman’s position. The posts were
advertised
internally and attracted 13 applicants. Mr Weyers decided that the
foreman’s test should also be used for the operators
because in his
view the technical and safety requirements for the positions were the
same and the test was directed to these. He
discussed this with Mr
Booysen, who agreed with him, although one of his subordinates
thought the standard might be too high. This
was a view he was
prepared to accept and his later conduct bears that out. When the
initial batch of applicants fared poorly, he
suggested that all eight
of those who achieved better than 31% should be interviewed, although
he qualified that by saying that
they ‘may very well constitute a
huge risk to Tshwane Electricity and to themselves’ in view of
their lack of knowledge. In
due course only the four candidates who
achieved better than 40% were short-listed by Mr Booysen. This
happened on 8 April, but
thereafter the forms changed and it was
necessary for Mr Weyers to re-submit them, which he did on 24 April,
recommending that
two candidates be short-listed for the foreman’s
position and four for the system operator posts.
[11] The
immediate response from Mr Ratsiane was that the shortlists were
unacceptable and he asked for a meeting. The problem was
that all the
persons on the list were white and all the existing foremen and
system operators were white. In the result the appointment
of those
on the lists would not satisfy transformation objectives within the
municipality or assist in achieving its goals under
the Employment
Equity Act.
2
Mr Weyers was clearly aware of this as he dealt with this issue in an
e-mail accompanying the list, saying that the employment
equity
candidates had lacked sufficient technical knowledge of the network
to be appointed even when 10% had been added to their
marks.
[12] The
suggested meeting took place on 10 May in Dr Lukhwareni’s office
and was attended by Mr Booysen and Mr Ratsiane amongst
others. On 19
May Mr Booysen circulated a summary of the agreement reached at the
meeting and a memorandum on further appointments
of system
operators.
3
The agreement was that 60% of the vacancies would be filled by
‘competent personnel based on training and test results’ and
the
balance from ‘qualified trainable personnel’. Accordingly four
system operator posts were to be filled ‘from the competent
group
based on test results’; four system operator posts were to be
re-advertised and a foreman was to be appointed. The agreement

appears to have struck a reasonable balance between the urgent needs
of the PSC centre and the pursuit of transformation and employment

equity. It had the endorsement of the SEO and Mr Ratsiane from human
resources as well as Mr Weyers and his immediate superior.
It led to
Mr von Gordon being appointed. It also meant that the four white
males, identified as the best candidates by the tests,
would be
appointed. Meanwhile an advertisement was placed in the Pretoria News
on 18 May in respect of the posts to be re-advertised.
[13]
Although it was submitted that the test became a bone of contention
and its appropriateness had been challenged, this did not
emerge at
that time. Not only was the foreman position filled on the basis of
the test,
4
but Mr Booysen’s minute reflects that the test was to be used in
the future. In addition had the test been controversial in itself,
as
opposed to in the results it produced, one would have expected there
to be a clear instruction to Mr Weyers and Mr Booysen that
it was not
to be used in short-listing the candidates for the positions that
were to be re-advertised. There is no such instruction.
Instead, once
the applications were received, the applicants were required to sit
the test. It is inconceivable that this would
have occurred if the
test had been rejected as inappropriate in May 2005. The issue
surrounding the test only arose later when
Mr Mahlangu came on the
scene.
[14]
Fifteen employment equity candidates applied for the system operator
positions but when they sat the test they performed dismally.
5
With one exception, who with the benefit of an adjustment for
employment equity that added 10% to the mark scored 42.22%, they
all
scored less than 40% and only two managed, with the same adjustment,
to score more than 30%. Mr Weyers forwarded the results
to Mr Booysen
on 29 July and asked for a meeting to discuss a shortlist.
[15] While
this was going on an important change occurred in the Electricity
Department. Mr Benny Mahlangu was appointed to the
position of
General Manager: Electricity Development and Energy Business. On 28
July Dr Lukhwareni informed his staff that he had
delegated to Mr
Mahlangu all transformation responsibilities with regard to human
resources. From then on all applications for
posts were to be
forwarded to Mr Mahlangu who would appoint a committee for
short-listing and a committee, chaired by himself,
to conduct
interviews. The decision of that committee in regard to appointments
would be binding. Accordingly Mr Mahlangu would
now play the central
role in all new appointments.
[16] The
impact of this change was immediate insofar as the appointment of
system operators in the PSC section was concerned. On
1 August 2005
Mr Booysen sent him the list of applicants for the systems operator
posts ‘with test results for approved test’
and the document
embodying the agreement reached on 10 May 2005 in regard to these
positions. According to Mr Weyers two of his
existing operators had
resigned by this stage and the need for new appointments had become
even more urgent. However, Mr Mahlangu
immediately made it clear that
he was dissatisfied with what he saw (although there is no indication
that either Mr Weyers or Mr
Booysen had made any recommendations in
regard to short-listing from these applicants) and a meeting was
convened on 3 August 2005
attended by Messrs Mahlangu, Booysen,
Weyers and some others.
[17] The
meeting started with Mr Mahlangu stating that shortlists had to be
approved by him, something that was not in dispute.
Mr Weyers
suggested that he shortlist the top six employment equity candidates.
However as Mr Booysen suggested that managers internally
had sought
to discourage their best workers from applying, Mr Mahlangu directed
that the posts should again be advertised internally.
It is now
accepted that Mr Mahlangu undertook personally to visit the depots
and make sure that the best employment equity electricians
applied.
This was baldly denied in the answering affidavit, but as that denial
is inconsistent with contemporary documents it carries
no weight. On
4 August Mr Weyers sent an e-mail to Mr David Mahlangu (apparently in
error) referring to the meeting the previous
day; recording the
decision to re-advertise internally and that Mr Benny Mahlangu would
speak to the depots with a view to getting
employment equity
candidates to apply. It is inconceivable that he could have sent that
e-mail had no such decision been made and
even more inconceivable
that, if they were untrue, he could, in response to the e-mails
referred to in the next paragraph, have
repeated these statements.
This he did on 5 August 2005 in an e-mail to Mr David Garegae, the
manager: electricity support services
responsible for human resources
within the electricity department, who was himself a party to the
agreement of 10 May 2005.
[18] What
appears to have happened is that Mr Mahlangu changed his mind after
the meeting. This emerges from two e-mails that he
sent out on the
afternoon of 4 August. The first addressed to Mr Booysen reads as
follows:
‘
I
am disappointed to see that a list containing only Whites was
submitted to HR against what was agreed upon.
6
This act can be construed as fighting against transformation. To fast
track transformation all tests are to be submitted to me
and HR for
review and it is HR that shall administer all the tests if there is a
need for one.
The
lack of skills and expertise is not the fault of the Black employees
but of their managers who did not ensure that everyone
irrespective
of colour acquired experience and expertise. Given our numbers with
regards to equity, candidates who do not comply
with equity
requirements will not be short-listed at all. This is the policy that
has to be adopted and has the full support of
council.’
The second,
sent less than an hour later to Mr Weyers, reads as follows:
‘
It
has been decided that only candidates that comply with the
requirements of equity shall be considered. Your previous agreement

with David Garegae and Ndhivo [Dr Lukhwareni] does not hold anymore.
Tests shall be approved by me and HR and HR shall conduct
the testing
without your involvement.
The
list that you had, shall be used for short listing for equity
candidates.’
[19] The
effect of these e-mails was considerable. No white males were to be
considered for appointment notwithstanding the agreement
on 10 May
with Dr Lukhwareni, who was the head of the electricity department
and Mr Mahlangu’s superior. Accordingly the four
candidates who had
been identified as suitable to commence work immediately would not be
appointed. Mr Weyers would be removed
from any process of assessing
the competence of the candidates and the previous agreement in regard
to the filling of these posts
was set aside. Finally the blame for
the absence of suitable black candidates was simply laid at the door
of their managers without
more. That left Mr Weyers in the position
that he recorded in his e-mail to Mr David Garegae on 5 August namely
that:
These
positions I would like to fill are critical to the Service Delivery
of Tshwane Electricity, and while they are not filled
with competent
personnel we are sacrificing Batho Pele.”
[20] Mr
Weyers’ difficulties were compounded by the fact that on 25 July Dr
Lukhwareni had circulated a letter dealing with staff
working
overtime beyond the conventional limit of 40 hours a month. This was
directed at ensuring that staff did not exceed this
level of
overtime. With his current staff complement this was impossible for
Mr Weyers to achieve. One of the suggestions in the
letter was that
breakdowns in the network would have to be left overnight to be dealt
with when staff came on duty in the morning.
That would clearly
impact upon service delivery. In addition there had been at least
some discussion (of which staff had become
aware) that the
municipality would program its computers dealing with salaries to
prevent payment of more than 40 hours of overtime
a month. This had
led to talk of industrial action over the issue.
[21] Over
and above the problems with overtime the system operator posts had
been advertised twice, no new appointments had been
made and
virtually no employment equity candidates had come forward who
possessed what Mr Weyers regarded as the basic level of
skills to
perform these jobs. Now all this was largely taken out of his hands
and only employment equity candidates were to be
considered for the
eight positions. He was no longer even able to employ the four
candidates identified in the original process
whose employment had
been agreed to in May. The view he formed was that candidates would
be employed irrespective of their level
of skills or their ability to
perform the tasks of a system operator and that the absence of skills
would be disregarded in making
appointments. That he held that view
bona fide was accepted in argument before us, and it was an inference
he could legitimately
draw from what had happened.
[22] In
those circumstances Mr Weyers sought guidance from his professional
body the Engineering Council. He wanted to know what
his professional
responsibilities were if, as he feared, system operators were
appointed in the PSC centre who in his judgment
lacked the requisite
skills to perform the work entrusted to such operators. He was
advised that it would be unprofessional and
misconduct on his part
were he to be party to the appointment of persons to positions where,
in his judgment, their lack of skills
meant that they were not
competent to fill those posts and that might give rise to safety
risks. He was also advised that in the
event that his employer forced
him to make such appointments he would be obliged to report that to
the Engineering Council. He
informed a top management meeting of this
on 10 August. Dr Lukhwareni convened the meeting and Mr Mahlangu was
listed in the notice
as one of the participants. The denial in the
answering affidavit that such a meeting took place was demonstrated
to be false and,
even though a fourth set of affidavits was delivered
on behalf of the municipality it did not deal with this meeting.
Accordingly
Mr Weyers’ version of what transpired stands
unchallenged. He says that Mr Mahlangu’s response to being told
that he would
have to make a report to the Engineering Council was to
say that the Engineering Council could not dictate to the
municipality
who it should employ. His reply was that the council
could not instruct him on how to conduct himself professionally.
[23] That
the problems in the PSC centre remained critical is apparent from an
e-mail addressed by Mr Booysen to Mr Garegae on 11
August in which he
said that:
‘
We
are not coping with the increasing number of resignations and not
filling of vacancies resulting in people [having] to work overtime
in
excess of 40 hours and people working alone without assistants which
could be seen as one of the reason for increasing incidents
which
could lead to incidents similar to the equipment blow-up at Morgan
road in Mayville where members of the public were hurt.’
Mr Booysen
finished by saying: ‘We need internal electricians with experience
on our network.’
[24] A
further management meeting took place on 15 August at which Mr Weyers
said that it appeared to be impossible to find internal
employment
equity candidates with the necessary competence and experience to
fill the vacant system operator posts and requested
that outside
candidates should be head-hunted. He also proposed that in order to
overcome the lack of skills internally 40 electricians
in the
municipality’s employ be made available for training by him. In the
meantime and in order to address the urgent existing
problem he
should be authorised to appoint people capable of fulfilling the
immediate need for skilled system operators. It is
accepted that this
is what he said at the meeting and that Mr Mahlangu was opposed to
these proposals.
[25] On 17
August Mr Mahlangu asked Mr Weyers to provide him with the ‘job
specs and job requirements’ for
inter alia
the system
operator positions. This led him again to seek the advice of the
Engineering Council, which on this occasion was furnished
by its
Manager: Legal Services, Mr Faul. The advice he received was to
report his concerns to the mayor of Tshwane and that he
was obliged
also to report them to both the Engineering Council
and the
Department of Labour.
[26] On 24
August Mr Weyers sent to Mr Booysen and Mr Mahlangu a list of names
of those employment equity candidates who had the
minimum academic
qualifications necessary for amongst others the system operator posts
and said in the covering e-mail:
‘
Please
note that academic qualifications are not enough as additional
qualities are also needed. All of the positions to be filled
are
operational positions ie the people appointed need to take up the job
immediately, failure to perform satisfactorily will endanger
the
lives of the candidates, their colleagues and the public.’
There was
no response to this. On 25 August a further e-mail was sent to Mr
Ratsiane and copied to Mr Mahlangu querying the decision
to
invalidate the tests (or more accurately the results of the tests) he
had given to candidates and saying that he did not regard
this as
being in the best interests of the municipality as they had been
devised to see if the candidates had the knowledge necessary
to
perform satisfactorily in the positions under consideration. Once
again there was no response.
[27] The
final act in the drama was a meeting on 29 August to prepare a
short-list for the vacant positions. In the case of the
system
operators Mr Mahlangu proposed simply to short-list all the black
applicants and none of the others. The range of unadjusted
scores for
these candidates on Mr Weyers’ test ranged between 32,2% and 2,22%.
Not surprisingly Mr Weyers said that he could
not agree to and sign
this shortlist as he regarded it as contrary to his professional
obligations to do so. He told Mr Mahlangu
that if he continued with
this process he would be compelled to write a letter to the
Department of Labour reporting the issue
to them. The response was:
‘You can write a letter. I don’t care.’ As Mr Mahlangu says he
cannot recall the meeting this
stands unrebutted. Mr Weyers says that
Mr Mahlangu then said he had heard that Mr Weyers was a racist, a
charge that was strongly
rejected. Mr Booysen also expressed concern
about the competence of the candidates but Mr Mahlangu said that they
would be sent
for training at Eskom.
7
A check made by Mr Weyers the following day revealed that no
arrangements had been made for any such training and this compounded

his scepticism whether the training would eventuate.
[27]
Against that background Mr Weyers wrote his letter of 31 August. It
was addressed to the persons mentioned in paragraph [2]
above and
reads as follows:
‘
SHORT LISTING OF INCOMPETENT
CANDIDATES
Dear Sir,
In my capacity as a Professional Electrical Engineer
bound by the Engineering Profession of South Africa Act, 1990 (Act
No. 114
of 1990) and as a Municipal Staff member bound by the Code of
Conduct of the City of Tshwane Metropolitan Municipality ... I am

compelled to inform the Council about possible irregularities in the
process of the appointment of personnel in the Power System
Control
Section of which I am the Managing Engineer.
As the Section of Power System Control is primarily
involved in ensuring the supply of electricity to the Tshwane
Community and
is required to work with dangerous live electrical
equipment, the Managing Engineer sets high standards in appointing
staff that
have the best skills and competencies in the field. It is
my professional opinion that academic qualifications alone, is not
sufficient
and therefore all applicants are tested on their knowledge
of the theory, work, electrical network and of safety procedures.
These
tests are approved by Human Resources before being used.
After obtaining the test results, the best candidates
are invited for an interview. It was however found that the highest
marks
were mostly obtained by white candidates, and in order to
adhere to the Employment Equity (EE) Act, 10% was added to each EE
candidate’s
test result to give them a better chance of being
invited to an interview.
This whole process was implemented in order to appoint
System Operators and a shortlist was ready to be signed by HR on 8
April
2005. There was a great deal of unhappiness from HR as the
shortlist only contained white candidates purely for the reason that

they scored the highest marks and that it would be in the best
interests of Council to interview such candidates for possible
employment in the section. It was decided by HR and Top Management of
Electricity to re-advertise the positions externally to draw
a
greater complement of possible EE candidates. With this done the
candidates were tested again and very few EE candidates proved
to be
competent enough. No further actions as suggested by myself, such as
‘Head Hunting’ or the use of personnel agencies
to find specific
candidates, was taken by HR to find the right EE candidates for the
positions.
On 29 April
8
2005 I was involved in a meeting with HR and Members of Top
Management where it was decided that my competency test marks will
be
totally disregarded and only black candidates, some of whom scored
worst in the tests, be short listed this was done for the
position of
System Operator, System Controller and Dispatch agent, all positions
that are critical for effective and safe service
delivery.
The
personnel structure of Power System Control currently consists of
54,5% EE candidates, 1,5% women and 44% white candidates.
The
Technical Service section under which Power System Control resides
has 48% EE personnel, 4,3% Female personnel and 47,7% White

personnel.
“
The report to Council 23 June 2005: ELECTRICITY
DEPARTMENT: SUPPORT SERVICES DIVISION UPDATE ON THE EMPLOYMENT EQUITY
STATUS OF
THE DEPARTMENT AND PLANS TO ACCELERATE THE PROCESS, where
the equity target is set at 50% was disregarded by the short-list
team,
all white candidates applications were removed and only black
candidates applications were accepted, no one cared about the levels

of competency of persons being short-listed.
I raised my concern about the fact that it should not be
a question of white or black but of the most competent person in
order
for it to be in the best interest of the Council’s Service
Delivery and Electrical Safety. The General Manager responded to my

concern by implicating me of being a racist.
The decision was however taken that all black candidates
will be sent to training at ESKOM and will be certified competent by
ESKOM
before they are allowed to perform operational functions in the
Power System Control Section. (Arrangements with ESKOM have yet
to be
made and money for the training must still be found).
I wish to confirm that I support the policy to train EE
candidates to increase levels of competent service delivery to the
public.
This is in the best interest of our municipality. I have on
different occasions proposed to different members of HR and Top
Management
to give me 30 EE candidates in special training positions
created for this purpose, who will then be trained on the job, but as

the Section is an operational section with immense staff shortages,
the personnel needed NOW has to be competent to perform the
work
required of them without endangering their own lives, the lives of
their colleagues or those of the public.
I believe that the short-listing of the candidates with
the lowest competency levels, even though they will be sent for
training
(probably for a period of 2 months) is not in the best
interest of the Council. With the current staff levels of Power
System Control
at a mere 58%, having no competent people appointed
and with the possibility of training being done that may take a great
deal
of time, or even may not even materialise at all, it is my
Professional opinion that the following Acts, collective agreements
and codes could be contravened.
[A list of the provisions then follows.]
I wish therefore to distance myself from this process,
and I wish to be exonerated of the negative impact this process might
have
on the performance of the Power System Control Section, the
Electricity Department, the Council and the public of Tshwane in
regards
to safety as well as service delivery. I would also like to
humbly request that my 2(7) appointment according to the OHS Act
hereby
be withdrawn and that someone else be appointed with that
capacity.
Please be assured that despite this problematic
situation, I remain committed to doing my job to the best of my
ability and with
the necessary diligence with the limited resources I
have, whilst acting in the best interests of the City of Tshwane
Metropolitan
Municipality.
I
eagerly await your response regarding the abovementioned issues and
am looking forward to receiving guidance from your office
in respect
of the issues raised by me in this letter.’
[29] On
receipt of the letter Dr Lukhwareni responded by e-mail saying:
‘
Should
you colleagues not discuss matters personally with me before sending
letters to the MM (municipal manager)?’
The reply
from Mr Weyers was that he had been instructed by the lawyer at the
Engineering Council to do this. The following day
Mr Mahlangu
addressed this e-mail to Dr Lukhwareni:
‘
To
avoid such incidents where junior officials jump the SEO and run to
the MM, calls for strong disciplinary measures. This is perturbing

especially from an individual who has failed to demonstrate a
commitment to transformation. If disciplinary measures are not taken,

this scenario will be a recurring event where the SEO’s directives
are challenged by everyone and you can’t run the department
in this
fashion.
Your
mandate to transform this section is being challenged and failure to
act will result in every decision that you make being
challenged
because someone does not like it.
That
is my contribution to this matter and I personally will not change
from the stance I have taken unless you give in to this
threat.”
[30] It is
a curious feature of this case that the initial complaint was not
that the letter had been copied to the Engineering
Council and the
Department of Labour, but that it had been sent to the Municipal
Manager and Mr Weyers was perceived to have gone
over Dr Lukhwareni’s
head thereby challenging his authority. What
is
clear is that the entire imbroglio arose when Mr Mahlangu intervened
to prevent the implementation of the agreement of 10 May
and it seems
from this e-mail that he was also largely the driving force behind
the disciplinary proceedings.
Be that as it may, until his
suspension on 9 November, Mr Weyers continued in his post thereafter
trying to resolve the impasse
and participated in an interview
process that resulted in six employment equity candidates being
selected for system operator positions
on the basis that they would
undergo training. His conviction on the one disciplinary charge
ultimately pursued against him precipitated
the present proceedings.
The only issue in the appeal is whether the court below was correct
to hold that the distribution of the
letter to the Engineering
Council and the Department of Labour was protected under one or other
of the statutes relied upon by
Mr Weyers.
[31] It is perhaps as well at the outset to make it
clear what this case is not about. It is not about the disciplinary
proceedings
and whether the sending of the letters in fact
constituted misconduct or whether Mr Weyers received a fair hearing.
Nor is the
case about the application of the Employment Equity Act in
the Tshwane Metropolitan Municipality. Nor does it require any view
to be expressed on the wisdom of the approach adopted by either of
the main protagonists, Mr Weyers and Mr Mahlangu, to the appointment

of system operators and other staff in the PSC centre. Quite plainly
they approached that issue from different perspectives and
senses of
priority. Whilst one might hope that these difficult issues in our
society would always be resolved by mature discussion
and mutual
understanding, that did not occur in this instance and it is not for
this court to determine the rights and wrongs of
the situation that
arose. Our only task is to determine whether the sending of the
letter to the Engineering Council and the Department
of Labour was
protected by statute. It is to that question that I now turn.
[32] Mr Weyers relies on three statutory
provisions to justify what he did. They are section 30 of the
Engineering Profession Act,
46 of 2000; section 26(1) of the
O
ccupational Health and Safety Act 85 of 1993
(OHSA) and section 3 of the Protected Disclosures Act 26 of 2000
(‘the PDA’). All
the oral argument revolved around this latter
provision and in view of the conclusion I have reached it is
necessary for me to
deal only with that aspect.
[33] According to its long title the
purpose of the PDA is to make provision for procedures in terms of
which employees in both
the private and the public sectors may
disclose unlawful or irregular conduct by their employers or by other
employees and to provide
for the protection of employees who make
such disclosures. The preamble records that employees bear a
responsibility to disclose
criminal and any other irregular conduct
in the workplace, and that employers have a responsibility to take
all necessary steps
to protect employees who make disclosures from
reprisals as a result of making such disclosures. All of this is
located within
the constitutional imperative of good, effective,
accountable and transparent government in organs of state. Section
3(1) of the
PDA states as its objects the protection of an employee
who makes a protected disclosure from any occupational detriment; the
provision
of remedies for those who suffer an occupational detriment
in consequence of having made a protected disclosure and the
provision
of procedures to enable an employee, in a responsible
manner, to disclose information concerning improprieties by his or
her employer.
Whilst it was submitted to us that the purpose was to
have the subject of a disclosure investigated, and no doubt it is
hoped that
will flow from disclosures, that is not a stated purpose
of the PDA. It recognises that disclosures are frequently not welcome
to an employer and seeks to protect the employee who makes a
protected disclosure from retribution from their employer in
consequence
of having made a protected disclosure.
9
[34] Before
addressing the question whether Mr Weyers’ letter contained a
protected disclosure it is necessary to deal with a
contention on
behalf of the appellant that this is not a matter within the
jurisdiction of the High Court, but one exclusively
within the
jurisdiction of the labour tribunals established under the LRA.
10
The basis for that contention is an interpretation of section 4 of
the PDA in the light of certain recent decisions by the
Constitutional
Court and this Court. The starting point is section 4
itself, the relevant portions of which read as follows:
‘
(1) Any
employee
who has been subjected, is
subject or may be subjected, to an
occupational detriment
in
breach of section 3, may —
(
a
) approach any court having jurisdiction,
including the Labour Court established by
section 151 of the Labour Relations Act, 1995 (Act No 66
of 1995), for appropriate
relief; or
(
b
) pursue any other process allowed or
prescribed by any law.
(2) For the purposes of the
Labour Relations Act, 1995
,
including the consideration of any matter emanating from this Act by
the Labour Court —
(
a
) any dismissal in breach of section 3 is
deemed to be an automatically unfair dismissal as contemplated in
section 187 of that
Act, and the dispute about such a dismissal must
follow the procedure set out in Chapter VIII of that Act; and
(
b
) any other
occupational detriment
in
breach of section 3 is deemed to be an unfair
labour practice as contemplated in Part B of Schedule 7
to that Act, and the dispute about such an unfair labour practice
must follow
the procedure set out in that Part…’
[35] In my
opinion the clear answer to this contention is that section 4(1)
specifically states that an employee who may be subjected
to an
occupational detriment by his or her employer in consequence of
having made a protected disclosure may approach ‘any court
having
jurisdiction’. In principle that is the appropriate High Court
bearing in mind the jurisdiction conferred on High Courts
by section
169 of the Constitution, read with section 19 of the Supreme Court
Act 59 of 1959, and that the reference to ‘any
court’ is
extremely broad. There is nothing in section 4 to exclude that
jurisdiction. Instead the section says that the Labour
Court will
also be included as a court having jurisdiction. Bearing in mind that
the Labour Court’s jurisdiction is carefully
circumscribed in
sections 156 and 157 of the LRA that statement alone might have
occasioned some difficulties in understanding
the precise extent of
the Labour Court’s jurisdiction under the PDA. Accordingly the
legislature went on in section 4(2) to place
any dismissal in the
category of automatically unfair dismissals and any other
occupational detriment in the category of unfair
labour practices,
thereby locating the jurisdiction of the Labour Court under the PDA
within the framework of its existing jurisdiction
in respect of
unfair dismissals and unfair labour practices. Subsequently it
introduced sections 186(2)(d) and 187(1)(h) into the
LRA to harmonise
the two statutes. There is nothing in any of this to indicate that it
was intended to deprive the High Court of
jurisdiction in these
matters.
[36] That
straightforward reading of section 4 was challenged on the basis that
because section 4(2) created what were referred
to as LRA rights and
remedies that meant that the Labour Court has exclusive jurisdiction.
The explanation proffered for the reference
to ‘any court having
jurisdiction’ was that section 2 of the LRA excludes from its ambit
members of the National Defence Force,
the National Intelligence
Agency, the South African Secret Service, the South African National
Academy of Intelligence and Comsec
and accordingly it was necessary
to provide for another court to have jurisdiction in respect of these
employees. The submission
for the appellant is that the Labour Court
is the court having primary jurisdiction in cases under the PDA with
the jurisdiction
of the High Court being incidental thereto and
limited to the excluded employees who amount at most to a few percent
of all employees
in South Africa.
[37] The
answer is that this inverts the language and structure of the
section. The section starts by saying that all employees
may have
resort to any court having jurisdiction. It then says that the Labour
Court is included in that broader category presumably
because
otherwise it would have had no jurisdiction at all in respect of
cases arising under the PDA. Perhaps the effect is that
for these
purposes employees otherwise excluded from the scope of the LRA may
have resort to its provisions and to the Labour Court
or the CCMA,
but it cannot mean that they are obliged to do so. Nor can it mean
that employees otherwise subject to the LRA are
deprived of the right
to approach the ordinary courts for relief under the PDA. The
language of the section is simply not apt for
that purpose. There was
a strong body of authority prior to the Constitution that held that
the jurisdiction of the then Supreme
Court was not lightly excluded.
11
That is now reinforced by the Constitution, which provides in section
169(b) that the High Court may decide any matter not assigned
to
another Court by an Act of Parliament. Where the statute in question
gives the right to approach any court having jurisdiction
and then
adds by way of inclusion the Labour Court that is not an assignment
of the matter to the Labour Court. Had the intention
been as
suggested the section would have started by referring all cases under
the PDA to the Labour Court and then, if necessary,
dealing
separately with the few employees who fall outside the purview of the
LRA. It does not do so.
[38] Mr
Pauw SC, who appeared for the appellant, sought to support his
argument by reference to the recent decision of this Court
in
Makhanya v University of Zululand
12
and that of the Constitutional Court in
Gcaba v Minister for
Safety and Security and others
.
13
He submitted, with reference to paragraph 66 of the latter judgment,
that this was ‘a quintessential labour-related issue’
and
accordingly that the Labour Court has exclusive jurisdiction in
regard to disputes arising under the PDA, with the exception
of
disputes in regard to those employees excluded from the scope of
operation of the LRA. However that quotation is taken out of
context.
It must be seen in the light of paragraph 64 of the judgment where it
was said that: ‘Generally, employment and labour
relationship
issues do not amount to administrative action within the meaning of
PAJA.’ and also in the light of the full passage
where the phrase
occurs, which reads:
'In
Chirwa
Ngcobo J found [at paras 142 and 150]
that the decision to dismiss Ms Chirwa did not amount to
administrative action. He held that
whether an employer is regarded
as "public" or "private" cannot determine whether
its conduct is administrative
action or an unfair labour practice.
Similarly, the failure to promote and appoint Mr Gcaba appears to be
a quintessential labour-related
issue, based on the
right
to fair labour practices, almost as clearly as an unfair dismissal.
Its impact is felt
mainly
by Mr Gcaba and has little or no direct consequence for any other
citizens.'
The basis
of the judgment in
Gcaba
is that the decision in regard to Mr
Gcaba’s promotion did not amount to administrative action.
14
Whilst pointing to the advantages of specialised courts and the
undesirability of forum shopping
15
it laid down no wider principle. The reference to a ‘quintessential
labour-related matter’ is made in the context of the constitutional

concept of an unfair labour practice that is given shape and form by
the LRA.
[39] The
issues in this case, whilst arising in the context of employment,
relate to questions of public safety and the professional
obligations
of persons in the position of Mr Weyers in the context of the
accountability of a municipality for proper service delivery
of
electricity within its municipal area. Those issues are by no means
solely or at all labour-related matters. The questions that
can arise
in relation to a protected disclosure, such as whether the person
concerned had reasonable grounds for believing that
a criminal
offence had been committed or that a miscarriage of justice had
occurred or that the environment is likely to be damaged
16
are not labour-related issues and are more appropriately dealt with
in the ordinary courts. The mere fact that it is an employee
who is
protected under the PDA from an occupational detriment in relation to
that employee’s working environment does not mean
that every issue
arising under the PDA is a ‘quintessential labour-related issue’
as contended by Mr Pauw. For those reasons
I reject the challenge to
the High Court’s jurisdiction.
17
[40] I turn
then to consider the provisions of the PDA. Under section 3 of the
PDA an employee who makes a protected disclosure
may not be subjected
to an occupational detriment by his or her employer on account,
wholly or partly, of having made that disclosure.
An occupational
detriment is defined in section 1 as including being subjected to any
disciplinary action. Accordingly the question
is whether Mr Weyers’
action in sending his letter to the Department of Labour and the
Engineering Council constituted a protected
disclosure. If it did
then the appellant was not entitled to institute disciplinary
proceedings against him and he was entitled
to obtain the interdict
that was granted by the Pretoria High Court.
[41] The
material portion of the definition of a disclosure reads:
‘
...any disclosure of information
regarding any conduct of an
employer
,
or an
employee
of that
employer
,
made by any
employee
who has reason to believe that the information concerned shows or
tends to show one or more of the following:
...
that a person has failed, is failing or is likely to
fail to comply with any legal obligation to which that person is
subject;
...
that the health or safety of an individual has been,
is being or is likely to be endangered...’
The first argument advanced before us was
that the contents of the letter did not constitute information
because they contained
only Mr Weyers’ opinion that people who were
not competent were about to be appointed as system operators and not
a fact or similar
form of information.
18
However a person’s opinion is itself a fact, for as Bowen LJ
pointed out:
‘
the
state of a man's mind is as much a fact as the state of his
digestion’.
19
In addition
an opinion often relates to a fact the existence of which can only be
determined by considering the views of a suitably
qualified expert.
Whether a person has the requisite skills to undertake a dangerous
and skilled task is a question of fact, but
prior to their
appointment, which was the relevant time in this instance, that fact
can only be ascertained by way of tests and
the assessment of people
who know what the job requires of their level of skill. The letter
dealt with that issue and as such contained
information concerning
the possible lack of competence of those who were likely to be
appointed to the system operator posts. It
also contained information
to the reader about the state of mind of Mr Weyers as the person in
charge of the PSC centre and the
person responsible, both under his
contract and by virtue of his appointment under the OHSA, for the
safety of the machinery under
his control and that of the PSC centre
staff.
[42] A
further difficulty with this approach to the nature of information
under the PDA is that its narrow and parsimonious construction
of the
word is inconsistent with the broad purposes of the Act, which seeks
to encourage whistleblowers in the interests of accountable
and
transparent governance in both the public and the private sector.
That engages an important constitutional value and it is
by now
well-established in our jurisprudence that such values must be given
full weight in interpreting legislation. A narrow construction
is
inconsistent with that approach. On the construction contended for by
Mr Pauw the threat of disciplinary action can be held
as a sword of
Damocles over the heads of employees to prevent them from expressing
honestly held opinions to those entitled to
know of those opinions. A
culture of silence rather than one of openness would prevail. The
purpose of the PDA is precisely the
opposite.
[43] For
those reasons I am satisfied that the letter contained a disclosure
of information regarding the conduct of those employees
of the
appellant
20
who had taken responsibility for the selection of people to be
appointed as system operators and a professional view on the
suitability
of the persons concerned to be appointed to those jobs.
Both the letter itself and the background sketched earlier in this
judgment
demonstrate quite clearly that this information concerned
the actual or prospective health and safety of individuals in the
employ
of the municipality and possibly outsiders as well and related
to compliance with statutory obligations in regard to safety.
Accordingly
the letter constituted a disclosure in terms of the PDA.
In terms of the definition of a protected disclosure in section 1,
whether
it was protected depends upon whether it was made to the
Department of Labour and the Engineering Council in accordance with
section
9 of the PDA.
[44]
Section 9 reads in its material part as follows:
‘
General protected disclosure
(1). Any
disclosure
made in good faith by an
employee
–
(a) who reasonably believes that the information
disclosed, and any allegation contained in it, are substantially
true; and
(b) who does not make the
disclosure
for purposes of personal gain, excluding any reward payable in terms
of any law;
is a
protected
disclosure
if
–
one or more of the conditions referred to in
subsection (2) applies; and
in all the circumstances of the
case, it is reasonable to make the
disclosure
.”
The
conditions in subsection (2) that are relevant for the purposes of
this case are contained in paragraphs (c) and (d) which read:
“
(c) that the
employee
making the
disclosure
has previously made a
disclosure
of substantially the same information to:
(i) his or her
employer
;
or
(ii) a person or body referred to in section 8,
in respect of which no action was taken within a
reasonable period after disclosure; or
(d) that the
impropriety
is of an exceptionally serious nature.”
[45] The
effect of these provisions is that the disclosure would be protected
if Mr Weyers acted in good faith; reasonably believed
that the
information disclosed and the allegations made by him were
substantially true; was not acting for personal gain and one
or other
of the conditions in section 9(2)(c) and (d) was satisfied. Mr Pauw
rightly conceded that the first three requirements
were satisfied. In
the light of the evidence summarised earlier in this judgment he
could do no less. It is plain that Mr Weyers
was throughout painfully
aware of his professional responsibilities and of the need to provide
residents of Tshwane with a safe
and reliable electricity supply. His
concern about the dangers arising from appointing people who, after
testing, he regarded as
insufficiently skilled to undertake the
onerous duties attaching to a system operator position shines through
each document. His
bona fides and his belief in the truth of what he
was saying are apparent. As this case shows he made the disclosure at
considerable
personal cost and not for personal gain. He acted in the
discharge of what he conceived, and had been advised, was his
professional
duty. The disclosure was made to parties that would
manifestly be interested in such disclosure. It would be surprising
in those
circumstances to learn that the disclosure was not
protected.
[46] Mr
Pauw confined his contentions on this part of the case to the
submission that Mr Weyers had not made a prior disclosure
to his
employer of substantially the same information in terms of paragraph
(c), as the latter was at all times aware of his view,
so that
nothing was disclosed to it. He also contended that the disclosure
did not relate to any impropriety as required by paragraph
(d).
Accordingly, so he submitted, the last necessary element of a
protected disclosure was missing.
[47] I
cannot accept these contentions. In regard to the first it was put to
him that the effect of his submission was that if the
employer knew
of a problem before the employee went and reported it there could be
no prior disclosure to the employer and accordingly
no protected
disclosure could be made to anyone else. There was no answer to this
point and the postulate cannot be correct. Its
effect is that if an
employee goes to the managing director and reports that bribes are
being paid in order to secure contracts
flowing from successful
tenders that is not a disclosure if the managing director authorised
the payments, and that knowledge would
bar a protected disclosure to
anyone else, such as the party issuing the tenders. Such a
construction would undermine the whole
purpose of the PDA because it
has the result that the more culpable the employer in the conduct
giving rise to the report and the
greater its knowledge of
wrongdoing, the less would be the protection enjoyed by the employee.
[48] The
alternative submission was that the letter merely reflected a
disagreement between Mr Weyers and his employer and therefore
there
had been (and could be) no previous disclosure to the employer
because that disagreement did not amount to a disclosure.
However
that is merely the argument that the letter contained no information
decked out in a different guise and the way in which
it is couched
further undermines that original submission. If the letter is so
construed then the information it contains is that
there is a
disagreement between the manager of the PSC centre, a skilled and
highly qualified electrical engineer, and the representatives
of
management and human resources concerning the abilities of persons to
be appointed as system operators in the PSC centre. That
is a most
important item of information that could cause the Department of
Labour to intervene to conduct a safety inspection and
engage with
the relevant individuals to address the concerns being raised by Mr
Weyers. Equally it could cause the Engineering
Council to become
involved in the interests of public safety and protecting the
standing and reputation of its member. It also
illustrates why these
were the appropriate parties to whom to make the disclosure in
question.
[49] In my
view therefore the requirements of section 9(2)(c) were satisfied, it
being common cause that the relevant officials
in the municipality
had disregarded Mr Weyers’ concerns and intended to ride roughshod
over them. Accordingly he had made the
disclosure to his employer and
no action had been taken consequent upon it, other than to disregard
his bona fide concerns. It
was not suggested that a reasonable period
for acting upon his disclosure had not passed.
[50] That
conclusion suffices to hold that the letter embodied a protected
disclosure. The same result is reached by considering
the
requirements of sub-section (d). An ‘impropriety’ is defined in
section 1 as being conduct in any of the categories in
the definition
of disclosure, which includes any conduct that shows or tends to show
that the health or safety of an individual
has been, is being or is
likely to be endangered. Having regard to the nature of the
enterprise and the nature of the work that
system operators would be
employed to perform it would be likely that the safety of an
individual would be endangered by the appointment
of a person who did
not possess the skills necessary to do the job safely. That is an
impropriety as defined and, against the background
set out in
paragraphs [3] to [6] above, it cannot be contended that it was not
an impropriety of an exceptionally serious nature.
Clearly lives were
at risk as the municipality’s own advertisement for the position
had stated.
[51] It
follows that the respondents proved that the publication of the
letters to the Department of Labour and the Engineering
Council
constituted a protected disclosure by Mr Weyers. It was accordingly
impermissible for the municipality to discipline him
for doing so and
it would be impermissible for it to impose any sanction upon him for
doing so. Lest it be taken that in referring
to the municipality in
this regard I am attributing conduct to the council of the
municipality it is appropriate for me to record
that it is unclear
from the record, and counsel were not in a position to inform us, of
the extent to which the council, as opposed
to its officials acting
in accordance with their delegated powers were responsible for both
the disciplinary proceedings and the
opposition to the present
litigation, including this appeal. Accordingly my references to the
municipality must be understood as
referring to the conduct of those
officials as representatives of the municipality. It is important to
say this because it is not
apparent that in the dispute that arose
the broader interests of the residents of Tshwane and their need for
service delivery,
in the form of a safe and stable supply of
electricity, were always kept in mind. In addition the manner in
which these proceedings
were conducted was deplorable with an
answering affidavit being delivered by the manager: legal support
services supported by purely
formal confirmatory affidavits. The
answering affidavit was replete with vague, evasive and in many cases
demonstrably untruthful
denials, as well as an attack on Mr Weyers’
bona fides that could not be, and was not, supported by counsel in
argument. This
judgment would not be complete without recording that
this was not justified and that it was not in the interests of the
residents
of Tshwane.
[52] The
appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
M J D WALLIS
ACTING JUDGE OF APPEAL
APPEARANCES
FOR APPELLANT: PIETER PAUW SC (with him S SHABA)
Instructed by
Ngoepe Attorneys, Johannesburg
Webbers, Bloemfontein
FOR RESPONDENT: J F MULLINS SC (with him P A SWANEPOEL)
Instructed
by
Serfontein
Viljoen & Swart, Pretoria
Vermaak &
Dennis, Bloemfontein.
1
Electrical switching is a process whereby the voltage of current is
altered, the position being that current is obtained by the
local
authority from Eskom at 132kV but this has to be transformed to
lower levels for use by consumers. System operators also
control
when there is power in the network by switching.
2
Act 55 of 1998.
3
Whilst the answering affidavit denied that an agreement was reached
and denied that the addressees of the two documents received
them,
the appellant does not persist in this stance in its heads of
argument or in oral submissions.
4
It was in respect of this position that the test had the most impact
on employment equity candidates, because seven of the fourteen

applicants for this position were equity candidates whilst only one
of the applicants for a systems operator post came from this
group
5
This is the description in the appellant’s heads of argument.
6
It is unclear to what list he was referring, as no shortlist had
been prepared in regard to the employment equity candidates.
If he
was referring to the four recommended in May it had already been
agreed that they should be employed.
7
Mr Booysen, who did not depose to an affidavit, clearly shared Mr
Weyers’ concerns. That much emerges from a memorandum he
prepared
on 12 September and from an e-mail he sent to Dr Lukhwareni on 5
October.
8
Clearly this should be August.
9
See in general
Tshishonga v Minister of Justice and
Constitutional Development
2007 (4) SA 135
(LC) paras 166 to 169
and 170 to 175.
10
The
Labour Relations Act 66 of 1995
.
11
Paper, Printing, Wood and Allied Workers’ Union v Pienaar NO
[1993] ZASCA 98
;
1993 (4) SA 621
(A) at 635A-C.
12
[2009] ZASCA 69.
13
[2009] ZACC 26
;
[2009] 12 BLLR 1145
(CC).
14
As has been held in two recent decisions by this Court.
Tshavhungwa
v NDPP
[2009]
ZASCA 136
and
Mkumatela
v The Nelson Mandela Metropolitan Municipality
[2009] ZASCA 137.
15
Paragraphs 56 and 57.
16
See the definition of ‘disclosure ‘ in
section 1
of the PDA.
17
As did Kroon J in
Young v Coega Development Corporation (Pty) Ltd
2009 (6) SA 118
(ECP).
18
Reliance was placed on
CWU and another v Mobile Telephone
Networks (Pty) Ltd
[2003] 8 BLLR 741
(LC) at para 22. To the
extent that it was held that a subjective opinion cannot be
information the judgment is wrong.
19
Edgington v Fitzmaurice
(1885) 29 Ch D 459
(CA) at 483.
20
Referred to in the letter as ‘HR”, an abbreviation for human
resources, and ‘Top Management” referring to senior management

in the electricity undertaking.