Radebe and Another v MEC, Free State Province Department of Education (2528/2006) [2006] ZAFSHC 32 (28 September 2006)

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[2006] ZAFSHC 32
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Radebe and Another v MEC, Free State Province Department of Education (2528/2006) [2006] ZAFSHC 32 (28 September 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 2528/2006
In the application
between:
N.G.
RADEBE
1
st
Applicant
V.L.
DHLAMINI
2
nd
Applicant
and
THE MEC: FREE
STATE PROVINCE
DEPARTMENT OF
EDUCATION
Respondent
JUDGEMENT:
H.M. MUSI J
_____________________________________________________
HEARD ON:
31 AUGUST 2006
_____________________________________________________
DELIVERED ON:
28 SEPTEMBER 2006
_____________________________________________________
[1] This is an
application for an interdict aimed at stopping the respondents from
proceeding with a disciplinary enquiry that was
to be held on the
14
th
of June 2006. The application had been brought on
the basis of urgency on 13 June 2006 but it was postponed
sine die
to allow for the filing of a full set of affidavits by both
parties with an agreement that the proposed disciplinary hearing
would
be kept in abeyance pending finalisation of the matter. The
matter has now been set down for hearing as an opposed application.

On the papers as they stand, the applicants seek a final interdict,
but their counsel informed the court from the outset of the
hearing
that they now seek an interim interdict pending a referral to the
Education Labour Relations Council of an unfair labour
practice
dispute. This stance is in recognition of the fact that a final
interdict could not be granted on motion proceedings in
the type of
dispute at the root of this application.
[2] The applicants’
case is based on the provisions of the Protected Disclosure Act, No.
26 of 2000 (the Act), arising out of the
fact that the applicants
divulged certain information relating to the affairs of their
employer, the details of which will emerge
shortly. Now a full
outline of the provisions of this Act is to be found in the case of
GRIEVE v DENEL (PTY) LTD
(2003) 24 ILJ 551 (LC) from p.
555 – 557 and I do not intend to repeat them here. It will suffice
to confine myself to a brief
exposition of only those provisions that
are most relevant for present purposes.
[3] The applicants aver
that the proposed disciplinary enquiry would amount to an
occupational detriment as defined in section 1 of
the Act. An
occupational detriment is defined in section 1 (the definitions
section) as including
inter alia
subjecting an employee to a
disciplinary inquiry. In terms of section 3 no employee may be
subjected to an occupational detriment
by his/her employer on
account, or partly on account, of having made a protected disclosure.
A protected disclosure is defined as
a disclosure made to the
persons/bodies mentioned in sections 5, 6, 7, 8 and 9 and made in
accordance with the provisions of each
of such sections. But before
these provisions can come into play, the disclosure must answer to
the definition of that term as set
out in the definitions section.
[4] Now for the
background to the dispute.
The first and second applicants
are employed by the Free State Department of Education respectively
as school management and governance
developer and school principal
and are both based in Welkom. During December 2005 the applicants
compiled a document containing
certain allegations against the member
of the provincial executive council (“the MEC”) responsible for
education in the Free
State Province. In essence, the applicants set
out what they purport to be instances pointing to fraud, corruption
and nepotism
in the running of her portfolio by the MEC. This
document was forwarded to the office of the President of the Republic
of South
Africa, the National Minister of Education, the Premier of
the Free State, the MEC for Education in the Free State (the first
respondent),
the Head of Education, being the Superintendent General
for the Free State, the Deputy Director-General of the Free State
Administration
and the Lejweleputswa District Director of Education.
The intention of the applicants was that the relevant authorities
should investigate
or cause to be investigated these allegations of
fraud, corruption and nepotism.
[5] The
applicants received an acknowledgement of receipt of the document
from some of the addressees and they exchanged some correspondences
with the office of the National Minister of Education and the Public
Service Commission amongst others in a follow-up to the disclosures.

The latter indicated that an investigation would be conducted but
nothing firm in that direction has been reported.
[6] In
the meantime, the first respondent responded to the disclosure by
taking the view that the allegations made were baseless,
defamatory
of her and were calculated to destabilise the functioning of her
department. The first respondent communicated this to
the applicants
by way of a letter from the office of the state attorney, which also
warned the applicants that if they did not desist
from spreading
baseless allegations against the first respondent, appropriate legal
steps would be taken against them. The applicants
were not impressed
by all this and gave notice that they would press ahead with their
demand for an investigation. It is unnecessary
to record all the
unsavoury developments that followed. What is important is that the
applicants were subsequently served with the
notice of a disciplinary
enquiry that triggered the instant application.
[7] The
notice was issued by the Free State Education Department in terms of
item 5 of Schedule 2 of the Disciplinary Code and Procedures
for
Education and the main charge is framed as follows:
“
You
have contravened to
Section 18(1)(dd)
of the
Employment of Educators
Act, 76 of 1998
, in that on 09 December 2005, and at Welkom, you
committed a common law or statutory offence namely crimen injuria by
publishing
and/of communicating defamatory statements in respect of
the MEC of Education (Free State), the Chief Financial Officer and
the Lejweleputswa
District Director, (Department of Education Free
State), to the effect inter alia that either and/or all of the
officials mentioned,
were guilty of nepotism, favouritism, corruption
and/or acts or practices which resulted in fruitless expenditure.”
Then
follow numerous alternative charges. The first alternative charge is
essentially that the applicants conducted themselves in
an improper,
disgraceful or unacceptable manner when publishing or communicating
the defamatory statements referred to in the main
charge. In the
second alternative charge it is alleged that the applicants
unjustifiably prejudiced the administration, discipline
or efficiency
of the Lejweleputswa District office of the Department of Education
when publishing or communicating the alleged defamatory
statements
referred to in the main charge. It is unnecessary for purposes of
this judgement to detail the further alternative charges.
[8] In response the
applicants launched the instant application wherein they seek to
interdict the respondents from proceeding with
the proposed
disciplinary enquiry pending a referral of an unfair labour practice
dispute to the Education Labour Relations Council
for conciliation
and, if that fails, to arbitration or adjudication, where
viva
voce
evidence would be heard and a final determination made
whether the disciplinary enquiry would indeed amount to an
occupational detriment
and therefore an unfair labour practice.
[9] I
should mention that the second respondent has been joined in these
proceedings on the basis that he is in terms of
section 3(1)(b)
of
the Employment of Educators Act No. 76 of 1998, the employer of the
applicants. There was some debate at the hearing about whether
the
first respondent, who is the target of the disclosure, is the
employer of the applicants. It was pointed out that it is
information
regarding the conduct of an employer or his/her employee
that qualifies as a disclosure in terms of section 1 of the Act. If
the
first respondent is not an employer then the disputed information
about her or any of her employees would not be a disclosure as
defined. It was contended on behalf of the respondents that since
the second respondent is the actual employer, the first respondent
could not be the employer.
[10] On
behalf of the applicants it was contended that the first respondent
is a co-employer and I was referred to the provisions
of
section 3
of
the
Employment of Educators Act to
the effect that the National
Minister of Education is an employer for purposes of determining
salaries and conditions of employment
of educators as well as for
creating posts nationally and that the first respondent is an
employer for purposes of creating posts
in the province. The point,
however, is that the applicants are employees of the Department of
Education in the Free State. The
first respondent is the political
head of such department and the person with ultimate responsibility
for education in this province.
I shall assume in favour of the
applicants, without deciding it, that the first respondent is at
least a co-employer.
[11] Now the requirements
for the grant of an interim interdict are well known. In argument,
Mr. Gough for the respondents conceded
that the pending disciplinary
enquiry would
per se
violate the rights of the applicants to
the protection of section 3 of the Act and therein lies potential for
irreparable harm.
In this regard Mr. Gough agreed with Mr. Grobler
for the applicants. The latter had referred to the judgment in
GRIEVE v DENEL (PTY) LTD
supra
at 563 F – H.
Mr. Gough also conceded that the applicants had no satisfactory
alternative remedy. Regarding the question of where
the balance of
convenience lies, Mr. Gough said that the respondents would be
prejudiced if, having obtained the interim relief,
the applicants
then dragged their feet in the prosecution of the proposed referral
of an unfair labour practice dispute to the Education
Labour
Relations Council. He did not press the submission that the balance
of convenience did not favour the grant of the relief.
[12] The real issue for
decision is, whether the applicants have established a
prima facie
right, though open to doubt. This calls for a determination of
whether the information is
prima facie
a protected disclosure.
Put otherwise, does the information disclosed contain the basic
elements which, if subsequently established
in a trial, would meet
the requirements of the Act for a disclosure to enjoy protection?
[13] Now, the disclosure
herein was made not only to the employer, but to outside parties as
well. Certainly the State President,
the Premier of the Free State,
the Deputy Director General of the Free State Province and the
Lejweleputswa District Director are
not employers of the applicants.
This is therefore an instance of an external or general disclosure
which falls squarely within
the requirements of section 9 of the Act.
In this regard it may well be that the information would
prima
facie
satisfy the requirements of section 6 (disclosure to an
employer), section 7 (disclosure to a member of the cabinet or an MEC
of
a province), section 8 (disclosure to the public protector and the
like) and it will be noted that the requirements of these sections
are less stringent. The point, however, is that once the same
information has been disseminated to persons or bodies other than
these, the requirements of section 9 must be met, for reasons that
follow. (Section 5 is clearly not applicable to the instant matter.)
[14] The
legislature has singled out persons or bodies designated in sections
7 and 8 as persons or bodies to whom employees could
report suspected
wrongdoing in the workplace without fear of reprisals and made it
easier for the whistle blowing employees to do
so by not prescribing
any definite procedure to do so. The rationale for this is probably
that these high ranking state officials
could, by virtue of the
status and nature of their positions, be trusted to keep the
information confidential. Preservation of confidentiality
is also at
the root of the disclosure in terms of section 6, which must be made
by following a set procedure. If no procedure is
prescribed or
authorised by an employer, the disclosure can only be made to the
employer. In other words, if the disclosure is not
made to the
employer and the employee does not follow the prescribed procedure
where one exists, then he or she cannot claim protection
under the
provisions of section 6 and must therefore satisfy the requirements
of section 9.
[15] It is clear that
whereas the Act seeks to encourage employees to expose wrongdoing in
the workplace, it also incorporates mechanisms
meant to safeguard the
reputations and interests of employers and all those against whom
allegations of wrongdoing are made, bearing
in mind that the
allegations may turn out to be false. The need to strike a balance
between the competing interests was stated
as follows in
COMMUNICATION WORKERS UNION v MOBILE TELEPHONE NETWORKS (PTY)
LTD
(2003) 24 ILJ 1670 (LC) at 1678 I – J:
“
The
PDA contemplates and protects disclosures made in private rather than
in public. This is obvious given the potential damage to
reputation
of persons against whom allegations are made, and an integral element
of the balance between the protection of rights
to reputations and
the protection of free speech in the workplace.”
[16] It is necessary to
first set out the requirements of section 9 and thereafter to
determine whether the allegations contained
in annexure “C” to
the founding affidavit satisfy those requirements on a
prima facie
basis. I should indicate at this juncture that, in considering the
latter question, this being an application for interim relief,
I
shall adopt, as I am obliged to, the approach enunciated in
WEBSTER
v MITCHELL
1948 (1) SA 1186
(WLD) at 1189, as qualified by
GOOL v MINISTER OF JUSTICE AND ANOTHER
1955 (2) SA 682
(CPD) at 688 E.
[17] It
is worth noting that in their opposing affidavits the respondents do
not, save in some minor respects, give any explanation
to clarify the
instances of alleged wrongdoing cited by the applicants. In other
words, the respondents have not set up facts in
contradiction that
may be said to throw serious doubt on the case of the applicants.
The position taken by the respondents is essentially
that the
allegations of wrongdoing are without any basis and false and that
none of the instances cited disclose any wrongdoing on
the part of
the respondents. Otherwise, the respondents go on to give their
version of what happened on the occasions that some
officials of
their department met the applicants subsequent to the disclosures.
The respondents allege that the applicants refused
to co-operate with
the team that was set up to investigate their (the applicants),
complaints, but that otherwise nothing untoward
was found. In the
premises, the matter stands to be decided on an assessment and
analysis of the information disclosed by the applicants.
[18] It
should be noted that even before the requirements of section 9 can be
considered, the disputed information must answer to
the definition of
a disclosure as set out in section 1 of the Act. In terms hereof, in
disclosing the information regarding conduct
of an employer or
his/her employee, the employee must have reason to believe that the
information shows or tends to show any of the
instances of
impropriety as set out in paragraphs (a) – (g) of the definition.
I am prepared to hold in favour of the applicants,
without deciding
it, that they may reasonably have believed that the information tends
to show some impropriety on the part of the
first respondent and/or
some of her employees and that it is a disclosure as defined.
[19] Now
section 9 reads in part as follows:
“
(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-
(i) one
or more of the conditions referred to in subsection (2) apply; and
(ii) in
all the circumstances of the case, it is reasonable to make the
disclosure.”
[20] The critical
question is whether the disclosure by the applicants was made in good
faith and in the reasonable belief that it,
and the allegations
contained therein, were substantially true. This is the threshold
that must be crossed before the further requirements
of the section
can be considered.
[21] Now
the memorandum, annexure “C” to the founding affidavit, is
divided into seven items or subheadings, namely:
21.1 Redeployment;
21.2 Reskilling
of principles;
21.3 New
office movements for the MEC’s appointees;
21.4 Appointments
in the Free State’s Department of Education;
21.5 School
Management Teams (SMT);
21.6 Training
in the Free State;
21.7 Allocation
of tenders.
The
memorandum covers some 9 pages and it will not be possible nor
helpful to reproduce it here. I shall simply give a brief summary
of
what is alleged under each heading and comment thereon as I go along.
[22] Under
redeployment, the applicants express a general complaint that the
first respondent has unilaterally redeployed some school
principals
without consulting their school management developers and that she
had announced the unceremonious removal of some two
SMD’s at a
conference. They questioned the motives for the redeployments in the
following terms:
“
Therefore
we request that reasons behind the redeployment process be
investigated, because speculations are that the MEC was perhaps
trying to pave ways for her favourites to occupy these respective
posts.”
Quite
clearly these allegations disclose nothing untoward on the part of
the first respondent who may have had legitimate reasons
for
redeploying the people concerned. The allegation that she was paving
the way for some favourites is pure speculation.
[23] The
applicants also cite the case of a school whose deputy principal had
been acting as principal since 2005. They say that
he was abruptly
removed and a deputy principal from another school in the same town
was appointed as new acting principal. Thereafter
this vacant post
was advertised. The insinuation is that the first respondent
conveniently advertised the post to pave the way for
the permanent
appointment of the new acting principal. They say that this is an
instance of nepotism. They speculate that the new
acting principal
has been moved from his earlier post in order to make way for his
wife, who was head of department at the same school,
to be moved into
her husband’s place. This is all pure speculation and the
applicants themselves make it clear that they are speculating.
It is
unnecessary to comment further on the remainder of the allegations
under redeployment as it is all speculation. Whereas the
applicants
ascribe the first respondent’s conduct in all the instances to
nepotism, they do not say that the first respondent is
related to any
of the officials concerned and if so, how.
[24] Under
reskilling of principals, the applicants refer to a workshop
organised for school principals and held at the Stanville
Inn in
Welkom. They query the reasons for holding such a workshop as well
as the criterion that first respondent used to select
participants
and complain that the SMD’s (like the first applicant), who are the
immediate supervisors of the principals, were
not consulted. They
say that principals from outside Welkom were accommodated at
Stanville Inn and that the catering was provided
by a private caterer
during the whole of the workshop. They suspect something untoward in
the reasons for holding such a seminar
and query which budget was
used for the accommodation and catering; who were the private
caterers and whether proper tender procedures
were followed in
engaging them. Again the allegations disclose no wrongdoing. The
applicants want an investigation without providing
any factual basis
for it.
[25] Item
three is devoted largely to office accommodation for officials of the
Department of Education in Welkom and Odendaalsrus.
The applicants
complain that when the Odendaalsrus office was closed, sections of
the department were moved to premises in the Western
Holdings Mine
Office Complex, inspite thereof that apparently there was office
space at a complex called Amercosa, which was already
being used by
the Department. They say that this move isolated the affected
officials and caused them inconvenience in the form
of logistical
problems. They say that later in the same year of 2005 the officials
were moved back Amercosa. They query this whole
exercise and allege
that the inexplicable move to Western Holdings was due to the fact
that the former district director of the department
had singed a
three year lease contract with Western Holdings which is due to
expire during 2006. No basis is laid for the existence
of the
alleged lease contract. The applicants themselves state this to be
an allegation without identifying the source thereof.
Again there is
no indication of any wrongdoing by the first respondent. The
applicants want an investigation to be conducted purely
on the basis
of rumours and conjecture.
[26] Under
item 4 the applicants complain about the appointment by the first
respondent’s predecessor of two officials as Values
in Education
officials on three years term contracts. They query the reasons for
the appointments and seem to suggest that the officials
are presently
not doing the work they were appointed for. They then say that one
of these officials has been acting as Deputy Chief
Education
Specialist and insinuate that he is keeping the position open for one
of the first respondent’s favourites. They state
the following:
“
Therefore
it is evident that the present District Director is an extention and
a replica of the ex-District Director as she continues
to pursue his
interests characterized by nepotism instead of pursuing the goals of
Department.”
Again
the applicants provide no factual basis for this sweeping allegation.
[27] Under
items 6 and 7 the applicants simply request an investigation of the
matters set out therein without giving any factual
basis therefore.
None of the instances of impropriety set out in paragraphs (a)-(g)
under the definition of disclosure in section
1 of the Act are
alleged, save for the vague, sweeping allegation of nepotism and
corruption.
[28] The only allegation
worth commenting on under item 5 is that relating to the experiences
of one Mr. Xaba. The applicants say
that Xaba was victimised by the
former district director for Lejweleputswa, whom they alleged to be a
favourite of the first respondent,
for blowing a whistle on
corruption and fraud allegedly committed in the provision section of
the Lejweleputswa office of Department
of Education. Now apparently
a departmental investigation had been conducted into the matters
raised by Xaba but the applicants
claim that the outcome thereof has
never been made known. In the meantime Xaba is still being
victimised by being moved from office
to office. Now Xaba has filed
an affidavit in support of these allegations. However, he only
confirms what the applicants allege
without providing details of his
own. It may well be that there is some basis for the allegations
concerning Xaba so that
prima facie
the requirements of
section 9 may be said to have been met in this instance. But the
matter does not end there.
[29] Even if the
information regarding Xaba would
prima facie
constitute a
protected disclosure, the balance of convenience is tilted against
granting interim relief solely on that basis, when
by far the bulk of
the information does not qualify for protection. At any rate,
insofar as there may be a case for protection on
that account, the
applicants are at liberty to raise it as a defence in the pending
disciplinary hearing. Another factor that negatively
impacts on the
grant of interim relief is the fact that it is only now that the
applicants propose to refer the dispute to the Education
Labour
Relations Council when it has been on since June 2006.
[30] To
conclude, in disclosing the information contained in annexure “C”
to the founding affidavit the applicants cannot be supposed
to have
acted in good faith when no basis existed for the allegations
contained therein, nor could they reasonably have believed
the
information to be substantially true. Compare
GRIEVE v DENEL
(PTY) LTD
supra
at 560 C – D. (However, the latter
case is distinguishable from the instant case because the information
there appears to have
been thoroughly researched and documented.)
Nor can it be said that it was reasonable, in all the circumstances
of this case, for
the applicants to make the disclosures,
particularly given the very serious nature of the allegations; and it
is clear that they
had made no attempt to verify the information.
Yet they repeatedly and monotonously bandy about the words fraud,
corruption and
nepotism as if these have been proved. The overall
picture that emerges is that the applicants are generally
dissatisfied with the
manner in which the MEC runs her portfolio and
they betray a complete lack of respect for her.
[31] In
the premises, the application is dismissed with costs.
____________
H. M. MUSI, J
On behalf of
applicants: Adv. S. Grobler
Instructed
by:
Rossouws
BLOEMFONTEIN
On
behalf of respondent: Attorney I.P. Gough
Instructed
by:
State
Attorney
BLOEMFONTEIN
/em