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[2023] ZALAC 28
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Railway Safety Regulator v Kekana (JA126/2021) [2023] ZALAC 28; [2024] 1 BLLR 40 (LAC); (2024) 45 ILJ 284 (LAC) (18 October 2023)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 126/2021
In
the matter between:
RAILWAY
SAFETY REGULATOR
Appellant
And
SOLOMON
KEKANA
Respondent
Heard:
22 March 2023
Delivered:
18 October 2023
Coram:
Coppin JA, Savage
et
Gqamana AJJA
JUDGMENT
COPPIN JA
[1]
The
Labour Court ( Moshoana J) made an order on 13 October 2021 in
respect of a claim for automatic unfair dismissal
[1]
brought by the respondent (Mr Kekana) against the appellant, in the
following terms:
‘
1.
The dismissal of [Mr] Kekana is automatically unfair.
2.
The deduction of an amount of R7000 from the salary of [Mr] Kekana is
in breach
of section 34 (1) of the BCEA
[2]
.
3.
The contractual claim of Kekana is dismissed.
4.
The [appellant] is ordered to reinstate Kekana effective from the
date of his
dismissal.
5.
The [appellant] is ordered to pay Kekana the amount of R7000.
6.
There is no order of costs.’
[2]
The
payment of the amount of R7000 was not an issue in the appeal. Thus,
effectively, with the leave of this court, the appeal is
only against
the order declaring that Mr Kekana’s dismissal by the appellant
was automatically unfair and the order for his
reinstatement. As an
additional point in this appeal, the appellant has challenged the
jurisdiction of the court
a
quo
to entertain the claim.
[3]
The
appellant contends, essentially, the following: firstly, that the
court
a
quo
had no jurisdiction to entertain Mr Kekana’s claim for his
alleged automatic unfair dismissal because it was never referred
to
the Commission for Conciliation, Mediation and Arbitration (CCMA) or
conciliated (Mr Kekana only referred an ordinary unfair
dismissal
dispute to that body); secondly, that the claim for automatic unfair
dismissal had, in any event not been proven; and
thirdly, that the
court
a
quo
could not order Mr Kekana’s reinstatement, because he never
claimed reinstatement as relief in his pleadings filed in that
court
and merely sought it in his evidence at the hearing.
Common cause facts
[4]
Mr
Kekana was employed by the appellant as Executive Manager: Occurrence
Investigations. He arranged to take his annual leave with
effect from
the beginning of January 2018. Even though he was going to be on
leave, because of the nature of his work he was to
be on standby,
i.e. he was required to be available in the case of a train accident
and to dispatch investigators to such a scene.
[5]
Shortly
into his leave and on 4 January 2018 there was a collision at the
Geneva level crossing in Kroonstad, in the Free State
province,
between a PRASA
[3]
train and a
truck. Mr Kekana, who was made aware of it, instructed one Eric
Nkwinika, one of the principal inspectors in his department
to
dispatch investigators to the scene. Mr Nkwinika, who was not able to
reach the scene in time, instructed a Mr Brian Ngidi to
attend at the
scene.
[6]
In
terms of the appellant’s procedures, investigators had to
attend such scenes in pairs. So a typical team would consist
of two
persons, namely, an investigator and a human factor specialist from
another department, i.e. not from the appellant. On
this occasion,
there was no human factor specialist to go to the scene with Mr Ngidi
so he was accompanied by a security investigator,
Mr Selahle. They
arrived at the scene at approximately 18:00 hours and were to remain
there until the accident scene had been cleared.
[7]
When
the acting Chief Executive Officer (CEO) of the appellant at the
time, Ms Kgare, informed Mr Kekana of the collision, he told
her that
he was aware of it and that he had already instructed Mr Nkwinika to
dispatch officials to the scene on 5 January 2018.
Notwithstanding,
Ms Kgare also deployed a team, Mr Bruwer, an executive in her office
and a Dr Sprong, to the accident scene. Dr
Sprong was an independent
service provider whose services were procured on that occasion.
[8]
The
two teams worked together with Mr Bruwer to prepare a preliminary
report of the collision. Ms Kgare wanted the preliminary report
to be
available on 5 January 2018 due to the demands made on her by the
Department of Transport, but Mr Kekana informed her that
it could
only be available on 8 January 2018.
[9]
On
the evening of 7 January 2018, Mr Kekana met with Ms Kgare and Mr
Nkwinika after a report that had been written by Mr Bruwer,
who was
not a qualified inspector and did not have the necessary experience,
had been submitted. Mr Kekana objected to various
aspects of the
report and it was agreed that those would be corrected.
[10]
On
9 January 2018, Ms Kgare in writing sought a report from Mr Kekana on
the circumstances surrounding the deployment of inspectors
to the
accident scene. Mr Kekana responded and explained the circumstances.
[11]
On
9 January yet another collision occurred involving a PRASA train.
This time at Gildenhuys station in Germiston. Mr Kekana and
Mr
Nkwinika also attended the scene of that collision.
[12]
Mr
Bruwer had requested Mr Nkwinika to do certain things that the latter
did not feel comfortable with and Mr Kekana instructed
Mr Nkwinika
not to do anything that was contrary to the appellant’s
policies.
[13]
On
10 January 2018, Mr Kekana attended a media briefing session where Mr
Bruwer issued a national prohibitive directive to PRASA.
A meeting
followed with the Director-General of Transport, officials from the
Department of Transport, PRASA and the appellant
in order to resolve
the issue of the directive to PRASA. It was confirmed that it was not
the respondent’s department that
had issued a directive.
[14]
Significantly,
on that same date, Mr Kekana called the Chief Financial Officer (CFO)
of the appellant, and distance himself from
“the gross
misconduct” and “
non-compliance
with chain management and occurrence investigation processes
”
which had been followed. Mr Kekana further informed the CFO that he
did not agree with the terms of reference and the board
of enquiry
submission memorandum that had been drafted by Mr Bruwer. He
indicated that he did not want to be part of that process
as it had
been a violation of policies and procedures. According to Mr Kekana,
the said terms of reference should have been drafted
by the
Department in line with the appellant’s policies and
procedures.
[15]
Neither
Mr Kekana nor his Department were invited to participate in the
process leading up to the Exco meeting held in February
2018 when a
new company structure had been presented to the executives. Aggrieved
by this, and by the actions of Mr Bruwer in relation
to his
Department, Mr Kekana lodged his first grievance by letter dated 28
February 2018.
[16]
In
the grievance, Mr Kekana complained,
inter
alia
,
of Mr Bruwer’s “improper interference” in his
Department’s operations and of “serious breaches”

by Mr Bruwer of the Public Finance Management Act
[4]
(PFMA), the National Railway Safety Regulator Act
[5]
and occurrence investigation procedures. Mr Kekana complained, for
example, that Mr Bruwer had attended the train collision scene
in
Kroonstad without legal authorisation in terms of the National
Railway Safety Regulator Act and had taken with him an unauthorised

person, namely, Dr Sprong.
[17]
Mr
Kekana alleged that his first grievance letter had been ignored, that
Mr Bruwer continued to undermine his authority and that
this prompted
him to write his second grievance letter on 15 March 2018. The letter
was addressed to Ms Kgare. In this letter,
Mr Kekana complains about
the lack of a response to his correspondence and alleged that the
situation was worsening.
[18]
Mr
Kekana further informed Ms Kgare that he had escalated his grievance
to the Chairperson of the Board of the Safety Committee.
He also
complained about Mr Bruwer’s unauthorised interference in his
Department and the reputational damage that it could
cause the
appellant and alleged that the work environment had become toxic and
that Mr Bruwer’s conduct had resulted in a
loss of morale
amongst his staff. He further complained that he was being
marginalised and that he was left out of important meetings
and
discussions.
[19]
According
to Mr Kekana, despite an assurance from Ms Kgare that she would take
up with the board the issues that he raised, and
despite a letter
from the Chairperson of the Board of the Safety Committee to other
members of the board, to the effect that Mr
Kekana may not be
victimised, the victimisation continued after he had disclosed
private information and had lodged his grievance,
and ultimately,
resulted in his suspension on 27 March 2018 and dismissal
subsequently.
[20]
After
his suspension on 27 March 2018, Mr Kekana was charged by the
appellant with gross dereliction of his duties relating, firstly,
to
the leave that he had taken. It was alleged that he took such leave
without arranging for someone to act in his position. It
was also
alleged that he had breached investigation procedures and that, as
the executive manager of his Department, he had failed
to exercise
his supervisory duty to ensure that the principal investigator
complied and timely arranged for a stand-in. He was
further charged
with a gross dereliction of duty, it being alleged, that he failed to
ensure that an investigation team responded
timely and appropriately
to the train accident scene in Kroonstad on 4 January and that he
failed to investigate why such a response
had not been timely and
appropriate. Mr Kekana was further charged for an alleged gross
dereliction of duty relating to an incident
on 6 February 2018 at the
Gautrain depot.
[21]
Mr
Kekana was found guilty of the charges in his absence and his
dismissal was recommended. He appealed the decision but was never

informed of the outcome of the appeal itself. He was merely informed
by Ms Kgare that she had considered the ruling of the appeal

chairperson and had formed the view that there was no prospect of
coming to a different decision than that was arrived at by the

chairperson of the disciplinary hearing. Mr Kekana was dismissed on
12 February 2019.
[22]
It
is common cause that the chairperson of the appeal tribunal had
overturned the findings of the chairperson of the initial
disciplinary
hearing and had recommended that a hearing be held
afresh before someone else and that Ms Kgare had rejected that
recommendation
and had confirmed Mr Kekana’s dismissal.
[23]
Following
this dismissal, Mr Kekana referred an unfair dismissal dispute to the
CCMA which was subsequently conciliated and was
to be referred to
arbitration. Instead, Mr Kekana instituted a claim in the Labour
Court alleging that his dismissal by the appellant
was an
automatically unfair dismissal as contemplated in section 187(1)(h)
of the Labour Relations Act (LRA) as it was in breach
of section 3 of
the Protected Disclosures Act (PDA).
The jurisdiction issue
[24]
Did
the court
a
quo
have jurisdiction to entertain Mr Kekana’s claim for automatic
unfair dismissal despite the fact that that specific claim
was not
referred to the CCMA or conciliated? The appellant contends that the
court
a
quo
did not have such jurisdiction, but Mr Kekana’s counsel argued
that it did.
[25]
It
was submitted on behalf of Mr Kekana that the issue had already been
considered and decided by the Constitutional Court in
Association
of Mineworkers and Construction Union and others v Ngululu Bulk
Carriers (Pty) Ltd (in liquidation) and others
[6]
(
Ngululu
)
and by this Court in
Feni
v Commission for Conciliation, Mediation and Arbitration and
others
[7]
(
Feni
)
.
According
to this argument, in
Ngululu,
the Constitutional Court essentially held that “
an
automatic unfair dismissal dispute is not a dispute separate from an
unfair dismissal dispute that was referred to conciliation
”,
because what had been referred to conciliation was the unfairness of
the dismissal, regardless of whether the unfairness
concerned was
automatic or otherwise, and that it was not the reason for the
dismissal which must be referred to conciliation,
but the fairness of
the dismissal.
[8]
[26]
It
was further argued on behalf of Mr Kekana that in
Feni
[9]
this Court, which essentially dealt there with the defences of
lis
pendens
and
res
judicata,
had confirmed being bound by what was held by the Constitutional
Court in
Ngululu
.
Reference was also made to another decision of the Constitutional
Court in the matter of
September
and others v CMI Business Enterprise CC
[10]
(
September
),
which is to the same effect as its decision in
Ngululu
,
and which essentially follows this Court's decision in
National
Union of Metalworkers of South Africa and others Driveline
[11]
(
Driveline
).
[27]
In
Driveline
,
this Court held that
‘…
it
matters not for the purposes of jurisdiction whether at the time of
the conciliation of a dismissal dispute, the reason alleged
for the
dismissal was operational requirements or an automatically unfair
reason. The dispute is about the fairness of the dismissal.

Therefore, provided the alleged reason is one referred to in s
191(5)(b), the Labour Court will have jurisdiction to adjudicate
the
real dispute between the parties without any further statutory
conciliation having to be undertaken as long as it is the same

dismissal.’
[12]
[28]
The
appellant’s argument under this heading was basically that the
reason for the dismissal was essential and that the unfair
dismissal
dispute that was referred to the CCMA was distinct from the
automatically unfair dismissal dispute that was litigated
in the
court
a
quo
and that the latter dispute, therefore, also had to be referred and
conciliated in the CCMA before the court
a
quo
could have had jurisdiction to entertain it.
[29]
The
decisions of the Constitutional Court and this Court referred to
above are fatal to the appellant’s argument under this
heading.
This Court is bound by them. In Mr Kekana’s case, there are not
two dismissals, but a single dismissal and that
is what Mr Kekana
referred to the CCMA. The reason given for the dismissal was not what
was conciliated, but the fairness of that
dismissal. The parties were
not bound by the categorisation of the dispute as per the certificate
of outcome.
[13]
Hence, the
answer is that the Labour Court did have jurisdiction to entertain Mr
Kekana’s automatically unfair dismissal
dispute because the
very same dismissal had been referred to and conciliated in the CCMA.
Proof of the claim
[30]
The
question that arises under this heading is whether the claim made by
Mr Kekana was proven. The central issue that had to be
determined by
the court
a
quo
was whether Mr Kekana’s dismissal was a contravention of the
PDA by the appellant on account of his having made a protected

disclosure as defined in the PDA, and thus amounted to an automatic
unfair dismissal as is contemplated in section 187(1)(h) of
the LRA.
[31]
Section
3 of the PDA provides that no employee may be subjected to any
occupational detriment by his (or her) employer, on account,
or
partly on account, of his (or her) having made a protected
disclosure. It is clear from that section that there must be a link

between the occupational detriment and the protected disclosure.
[32]
The
term, “occupational detriment” is defined in section 1 of
the PDA as including, being subjected to any disciplinary
action,
being dismissed, or being otherwise adversely affected in respect of
his (or her) employment (including employment opportunities
and work
security).
[33]
The
term “disclosure” is also defined in section 1, and more
particularly as follows:
‘…
any
disclosure of information regarding any conduct of an employer, or of
an employee or of a worker of that employer, made by any
employee or
worker who has reason to believe that the information concerned shows
or tends to show one or more of the following:
(a)
that a criminal offence has been committed, is been committed or is
likely to be committed;
(b)
that the person has failed, is failing, or is likely to fail to
comply with any legal
obligation to which that person is subject;
(c)
that a miscarriage of justice has occurred, is occurring, or is
likely to occur;
(d)
that the health or safety of an individual has been, is being, or is
likely to be
endangered;
(e)
that the environment has been, is being or is likely to be damaged;
(f)
unfair discrimination as contemplated in Chapter II of the Employment
Equity
Act, 1998 (Act 55 of 1998) or the Promotion of Equality and
Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000); or
(g)
that any matter referred to in paragraphs (a) to (f) has been, is
being, or is likely
to be deliberately concealed.’
[34]
In
terms of section 1 of the PDA “a protected disclosure”
includes a disclosure made to an employer in accordance with
section
6 of the PDA. Section 6(1) provides:
‘
Any
disclosure made in good faith –
(a)
and substantially in accordance with any procedure authorised by the
employee’s
or worker’s employer for reporting or
otherwise remedying the impropriety concerned and the employee or
worker has been made
aware of the procedure as required in terms of
subsection (2) (a) (ii); or
(b)
to the employer of the employee or worker, where there is no
procedure as contemplated
in paragraph (a),
is a protected
disclosure.’
[35]
The
word “impropriety” is also defined in section 1 of the
PDA and according to its definition it means conduct which
falls
within the categories referred to in paragraphs (a) to (g) of the
definition of the term “disclosure”.
[36]
Section
4 of the PDA provides for the remedies for an employee who was or is,
subjected to an occupational detriment for having
made a protected
disclosure. The section provides,
inter
alia
,
that such an employee may approach the Labour Court for relief and
that,
inter
alia
,
any dismissal in breach of section 3 of the PDA is deemed to be an
automatically unfair dismissal as contemplated in section 187
of the
LRA.
[37]
It
is accepted that the interpretation of the provisions of the PDA must
promote a culture of openness rather than one of silence
and that it
must be more consistent, not only with the aims and objects of the
PDA itself but with the values of openness and transparency
enshrined
in the Constitution.
[14]
[38]
It
is by now trite that an employee must establish a
prima
facie
case that he or she has made a protected disclosure and that there is
a causal link between his or her dismissal and that protected

disclosure, and in the event of that being established, and in order
to escape liability, the employer would have to show that
the
employee had been dismissed for a fair reason (such as
misconduct).
[15]
[39]
The
court
a
quo
essentially
found that the true reason for Mr Kekana’s dismissal was hidden
by the appellant and that while it was made to
appear as if he had
been dismissed for misconduct relating to his handling of the train
collisions, the true reason for his dismissal
was because he had made
a protected disclosure in terms of the PDA in the grievances that he
had lodged.
[40]
It
held that Mr Kekana was obliged to ensure compliance with the PFMA;
that Ms Kgare complied with normal tender procedures in the

engagement of Dr Sprong; and that Mr Kekana was entitled to hold a
reasonable belief that Ms Kgare was accordingly failing in her
legal
obligations, but, that, in any event, it was not the duty of the
court
a
quo
“to find truth in the allegations” made by Mr Kekana.
[41]
The
court
a
quo
further
found that “
there
is no dispute that [Mr] Bruwer was dispatched as a resource without
the knowledge of [Mr] Kekana
”
and that it became common cause that Mr Bruwer was, at the time, the
executive in the office of Ms Kgare and was not appointed
as an
investigator; that Ms Kgare could not legally invoke the statutory
powers contemplated in section 38(8) of the National Railway
Safety
Regulator Act, which belonged to the appellant, i.e. the regulator,
as an entity, and that Mr Kekana was “
entitled
to hold a reasonable belief that Ms Kgare was failing to comply with
legal obligations when she purported to exercise those
statutory
powers
”.
[42]
The
court
a
quo
concluded, on that basis that the first leg of the enquiry as held in
TSB
Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey
[16]
was thus satisfied, that Mr Kekana had indeed made a disclosure to
the CFO, who was a board member.
[43]
The
court
a
quo
turned next to enquiring whether the “disclosure” of Mr
Kekana was “protected” as contemplated in the PDA.
It
concluded that it was because it satisfied the requirements of
sections 6 and 9 of that Act.
[44]
Turning
to the question of good faith – the court
a
quo
effectively rejected the contention of the appellant that the
disclosures were not made in good faith. It found that Mr Kekana
did
not make the disclosures in an attempt to shield himself from being
disciplined and held that, at the time he made the disclosures,
“
he
had no clue that [Ms] Kgare was toying with an idea to charge him for
misconduct
”;
and that, as far as Mr Kekana was concerned, he had dispatched
investigators to the scene of the accident.
[45]
The
court
a
quo
found that, on her own version, Ms Kgare had enough reason to
confront Mr Kekana if she was not satisfied with the manner in which

he had dealt with the investigation of the train accidents, but that
she did not do so until much later, after Mr Kekana had made
the
disclosures. The court
a
quo
accordingly
concluded: “
[i]t
is improbable that [Mr] Kekana made the protected disclosures in
order to divert the non-existing charges. [Mr] Kekana had
no inkling
that he misconducted himself and [was] potentially facing
chastisement
.”
The court
a
quo
further found that Mr Kekana’s honesty and transparency in
making the disclosures “
demonstrate[d]
his bona fides
”.
[46]
Regarding
the causal link between Mr Kekana’s dismissal and his
disclosures – the court
a
quo
found that Mr Kekana had discharged the burden of establishing the
causal link. The timing of the dismissal was considered. Seven
days
after Mr Kekana had brought the disclosures to the attention of the
board Ms Kgare suddenly remembered that Mr Kekana had
misconducted
himself 3 months earlier in connection with the investigation of the
train accident of 4 January 2018 that warranted
disciplinary action
against him.
[47]
The
court
a
quo
held
that the reasons for finding Mr Kekana guilty of misconduct “were
truly invented” and that this was demonstrated
by the fact that
Mr Kekana was found guilty of the misconduct in his absence, and by
Ms Kgare’s rejection (based on her own
interpretation of the
disciplinary code) of the independent chairperson’s
recommendation, made in the appeal lodged by Mr
Kekana, that a fresh
disciplinary hearing be held and by her confirmation of Mr Kekana’s
dismissal.
[48]
The
court
a
quo
effectively found that Ms Kgare had a motive for hiding the true
reason for Mr Kekana’s dismissal and that reason was the

disclosures that Mr Kekana made. Her refusal to accept the
recommendation made in respect of Mr Kekana’s appeal was part

of her attempt to hide the true reason for his dismissal.
[49]
Applying
the test in
SA
Chemical Workers Union and others v Afrox Ltd,
[17]
the court
a
quo
found that “
the
most likely cause of the dismissal
”
of Mr Kekana was the protected disclosures he made, particularly also
taking into account that Ms Kgare, “the alleged
wrongdoer”,
is the one who effected the dismissal. The court
a
quo
went on to conclude that the dismissal in those circumstances was
automatically unfair as contemplated in section 187(1)(h) of
the LRA.
[50]
The
only arguments advanced on appeal on behalf of the appellant
regarding this aspect of the matter was, firstly, that what Mr
Kekana
is alleged to have disclosed does not fall within any of the
paragraphs of the definition of “disclosure” in
section 1
of the PDA, and secondly, that Mr Kekana could not establish a link
between the disciplinary action taken against him
and the alleged
disclosures.
[51]
Both
those arguments lack merit. Mr Kekana reported the (alleged) failure
of Ms Kgare and Mr Bruwer to comply with legal obligations
which were
binding on them and believed that such failure(s) were likely to be
deliberately concealed. This would be covered at
least by paragraphs
(b) and (g) of the definition of “disclosure”. It further
appears that at the hearing in the court
a
quo
,
the appellant’s representative conceded that the definitional
requirements of a “disclosure” had been met.
[52]
In
respect of the second argument, i.e. pertaining to causation –
the court
a
quo
’s
reasoning in that regard cannot be faulted. It is apparent that Mr
Kekana was charged with misconduct in response to his
insistence that
action be taken emanating from his grievance and his escalation of
that grievance to the Chairperson of the Board
of the Safety
Committee. His complaints pertinently related to the conduct of Ms
Kgare and Mr Bruwer. The timing of the charges
is also reasonably
suspicious and Mr Kekana was not dealt with fairly at the
disciplinary hearing. It proceeded in his absence
(he was ill and had
been booked off by his doctor) and he was found guilty of the
misconduct he was charged with without having
been given a fair
opportunity to defend himself. In addition, even after he appealed
internally, Ms Kgare (whom he accused of wrongdoing)
denied him a
fresh disciplinary hearing as recommended by an independent
chairperson. All of this strengthens the inference that
the alleged
misconduct was not the true cause for his dismissal, but that his
“disclosure” was which implicated Ms
Kgare in wrongdoing.
The most likely inference is that Mr Kekana’s dismissal, which
Ms Kgare confirmed and ordained, was
retaliatory. Mr Kekana’s
disclosures did not have to be objectively true – it is enough
that he genuinely believed
that they were true.
The sanction
[53]
The
court
a
quo
ordered Mr Kekana’s reinstatement despite the fact that he did
not seek reinstatement in his pleadings. In his statement
of claim,
he only sought compensation of 24 months’ salary, but then he
merely indicated in the course of his giving of evidence
that he
wanted reinstatement. His pleadings were never amended accordingly.
[54]
The
court
a
quo
reasoned that section 193(2) of the LRA obliged it to order Mr
Kekana’s reinstatement upon a finding that his dismissal was

automatically substantively unfair, and that since there was “
not
an iota of evidence
”
from any of the appellant’s witnesses “
proving
the existence of any of the exceptions set out in paragraphs (b) -
(d)
”
of section 193 of the LRA.
[55]
While
the respondent submitted that this reasoning was correct, the
appellant argued that it was not and that, at best, the court
a
quo
should have awarded the maximum amount of compensation, being the
equivalent of 24 months’ salary.
[18]
[56]
It
is apparent that, in coming to its conclusion to order reinstatement,
the court
a
quo
overlooked and did not consider the pleadings and the pre-trial
minute, in terms of which the issues were defined by the parties,
and
which bound them. In the pre-trial minute, the parties identified
compensation as one of the issues that the Labour Court was
to
decide. No mention of reinstatement is made.
[57]
It
is trite that parties are bound by their pleadings and by the
pre-trial minute they sign, and that neither the case pleaded,
nor
the defence, can be expanded or changed in terms of the pre-trial
minute.
[19]
While accepting
those principles, Mr Kekana on appeal, relied on this court’s
decision in
Trellicor
(Pty) Ltd t/a Trellidor v National Union of Metalworkers of SA on
behalf of Ngwalane and others,
[20]
which was applied in
Sibiya
v SA Police Service,
[21]
where
this Court dealt with the situation where parties have widened the
issues to include those not pleaded. Mr Kekana’s
reliance on
that decision in the present matter was misplaced, because this was
not such a situation, i.e. where both parties widened
the issues to
include reinstatement. Mr Kekana’s mention in his evidence that
he wanted to be reinstated was not consistent
with his pleadings and
was inadmissible for that reason. In any event, it was not canvassed
or dealt with by the appellant, and
one most certainly cannot
conclude that there was a full enquiry in respect of the issue of
reinstatement.
[22]
[58]
In
such an instance, the parties are to be kept strictly to their
pleadings and it was not open to the court
a
quo
in those circumstances to ignore the pleadings and to order
reinstatement which was not sought in the pleadings. It was bound to

order compensation as sought by Mr Kekana in his pleaded case.
[59]
The
circumstances of this case are sufficiently egregious to justify the
maximum amount of compensation, namely, the equivalent
of 24 months’
salary. The appellant’s counsel has not argued the contrary.
[60]
To
summarise – even though the court
a
quo
,
which had jurisdiction, cannot be faulted in respect of its finding
on the merits of Mr Kekana’s claim, its order of reinstatement

cannot stand.
[61]
Taking
into account the law, fairness and all of the facts and circumstances
of this case, a costs order is not appropriate.
[62]
In
the result, the following is ordered:
Order
1.
The
appeal is dismissed, save in respect of the court
a
quo
’s
order that the appellant reinstates Mr Kekana. That order is set
aside and is replaced with the following order:
“
The
Regulator is ordered to pay Mr Kekana compensation in an amount being
the equivalent of 24 months’ remuneration, calculated
at the
rate of Mr Kekana’s remuneration on the date of his dismissal
on 12 February2019.”
2.
There
is no costs order in respect of the appeal.
P Coppin
Savage AJA and Gqamana
AJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR
THE APPELLANT:
WR
Mokhare SC
Instructed
by Tshiqi Zebediela Attorneys
FOR
THE RESPONDENT:
C
Higgs of Higgs Attorneys
[1]
In
terms of
section 187(1)(h)
of the
Labour Relations Act 66 of 1995
,
as amended, read with the Protected Disclosures Act 26 of 2000
(PDA).
[2]
The
Basic Conditions of Employment Act, 75 of 1997
.
[3]
Acronym
for Passenger Rail Agency of South Africa.
[4]
Act
1 of 1999.
[5]
Act
16 of 2002.
[6]
(2020)
41 ILJ 1837 (CC).
[7]
(2020)
41 ILJ 1899 (LAC).
[8]
See
Ngululu
at
para 21.
[9]
See
Feni
at para 24.
[10]
(2018)
39 ILJ 987 (CC) at para 50.
[11]
2000
(4) SA 645 (LAC).
[12]
See
Driveline
at
para 64.
[13]
See
September
at para 50.
[14]
See,
inter
alia
,
TSB
Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey
(2019)
40 ILJ 1224 (LAC) (
Dorey
)
at para 95 and
City
of Tshwane Metropolitan Municipality v Engineering Council of SA and
another
(2010) 31 ILJ 322 (SCA) para 42.
[15]
See,
inter
alia
,
Dorey
.
[16]
Dorey
supra fn 15.
[17]
(1999)
20 ILJ 1718 (LAC).
[18]
See:
section 194 (3) of the LRA.
[19]
SA
Breweries (Pty) Ltd v Louw
(2018) 39 ILJ 189 (LAC) at para 8.
[20]
(2022)
43 ILJ 1331 (LAC) (
Trellicor
).
[21]
(2022)
43 ILJ 1805 (LAC).
[22]
See
Trellicor
at paras 38 - 39.