Minister for Justice and Constitutional Development and Another v Tshishonga (JA6/07) [2009] ZALAC 5; [2009] 9 BLLR 862 (LAC); (2009) 30 ILJ 1799 (LAC) (2 June 2009)

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[2009] ZALAC 5
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Minister for Justice and Constitutional Development and Another v Tshishonga (JA6/07) [2009] ZALAC 5; [2009] 9 BLLR 862 (LAC); (2009) 30 ILJ 1799 (LAC) (2 June 2009)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case No.: JA 6/2007
THE
MINISTER FOR JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT First Appellant
THE
DIRECTOR-GENERAL FOR THE DEPARTMENT
OF
JUSTICE AND CONSTITUTIONAL DEVELOPMENT Second Appellant
and
MICHAEL
MALISA TSHISHONGA Respondent
JUDGMENT:
DAVIS JA:
Introduction
[1] This is an appeal against the
judgment of Pillay J of 26 December 2006 in which the following order
was made:
“
The
respondents are directed to pay the applicant twelve month’s
remuneration at the current rate
applicable to Director-Generals.
The respondents are to pay the
applicant’s costs including the
costs of Senior Counsel, such costs
to also include those reserved on 31 August 2006.”
[2] Initially, the appellants noted
some forty six grounds of appeal. However
all were abandoned, save for the
ground that the learned Judge erred in fact and in law in ordering
the appellants to pay the respondent
twelve (12) month’s
remuneration.
Factual background
[3] The respondent sued for
compensation for an “unfair labour practice” and
legal costs arising out of a
disciplinary enquiry instituted by the Department of Justice and
Constitutional Development (“the
Department”). Respondent
contended that, by suspending him and subsequently instituting
disciplinary proceedings against him,
the Department subjected him to
“occupational detriment” as defined in the Protected Disclosure
Act, 26 of 2000 (“the PDA”).
Accordingly, he was entitled to the
remedies prescribed in the PDA including compensation.
[4] It was common cause on the
pleadings that the dispute between the parties arose after the
respondent made a number of disclosures
to the
media
on 7 and 8 October 2003; including:
4.1 The erstwhile Minister (“the
Minister”) had a “questionable
relationship” with a Mr E Motala,
one of the persons appointed to act as provisional liquidator in the
liquidation of Retail Apparel
Group Ltd (“RAG”).
The minister undermined the rule of
law by acting outside the scope of his powers and contrary to the
discretionary powers of
the Master of the Court.
The Minister was guilty of nepotism.
The Minister was guilty of abuse of
the infrastructure and staff of the Department of Justice for the
purpose of advancing his
personal interests.
The Minister was guilty of
endangering the South African criminal justice system.
[5] Following their disclosures, on 8
October 2003 the respondent was suspended by the Department. On 5
December 2003 he was charged
with misconduct and required to appear
before a disciplinary enquiry. The following charges were preferred
against the respondent.
(i) Charge 1: That the respondent,
during October 2003, made allegations against Mr Penuel Maduna (who
was at the time the Minister
of Justice and Constitutional
Development), to the effect that Mr Maduna had a “questionable
relationship” with Mr Enver Motala,
a liquidator appointed to
handle the RAG liquidation. In this regard Mr Tshishonga contravened:
Clause C3.4 of the Public Service Code
of Conduct (“the code”), which requires that an employee must use
the appropriate channels
to air his or her grievances or to direct
representations.
Clause C4.10 of the Code, which state
that an employee must
“report
to the appropriate authorities, fraud, corruption, nepotism,
maladministration and any other act which constitutes and
offence, or
which is prejudicial to the public interest.”
(My own emphasis)
Charge 2: That the respondent accused
Mr Maduna of:
Undermining the rule of law by acting
outside the scope of his powers; and in this regard, acting contrary
to the discretionary
powers of the Masters of the High Court;
Nepotism;
Abuse of infrastructure and staff of
the Department for the purposes of advancing his personal interests;
and
Endangering South Africa’s criminal
justice system;
By doing so he infringed the
Minister’s constitutional right to his dignity;
Charge 3: That the respondent refused
without just or reasonable cause to return all documents relating to
the RAG case after
having been instructed to do so by a person
having authority, namely Mr V Pikoli, the Director-General of the
Department (‘the
DG’). This amounts to gross insubordination.
Charge 4: That the respondent
disclosed to the media the administration of liquidations by the
Office of the Master of the High
Court of which he was in charge. By
this conduct he had disclosed official information for personal gain
and the gain of others.
Charge 4 was withdrawn by the
Department at the close of the second appellant’s case at the
disciplinary enquiry.
[6] A chairperson was appointed in
terms of the
Senior
Management Services Handbook: Procedure for Disciplinary Action
against Senior Managers
to
conduct the disciplinary enquiry.
[7] The disciplinary enquiry commenced
on 12 December 2003 and concluded on 2 June 2004. On 20 July 2004 the
chairperson submitted
his findings. He found that the respondent’s
disclosure were protected disclosures as contemplated in the PDA.
[8] The respondent then instituted the
present action. Several pre-trial conferences were held. At the
first, the parties agreed
that the following issues had to be
determined by the Court:
8.1 Whether the respondent’s
disclosures to the news media on 7 and 8 October 2003 qualified as a
protected disclosure in terms
of the PDA.
8.2 Whether the respondent’s
suspension from duty and disciplinary proceedings constituted
“occupational detriments” as contemplated
in the PDA.
8.3 Whether the respondent’s
suspension from duty and disciplinary enquiry constituted “unfair
labour practices” as contemplated
in section 186 of the Labour
Relations Act, 66 of 1995 (“the LRA”).
8.4 Whether the respondent was
entitled to compensation in terms of section 193(4) of the LRA.
8.5 Whether the disciplinary action
against the respondent constituted unlawful action by the first
respondent.
8.6 Whether the respondent was
entitled to claim the legal costs incurred in the disciplinary
hearing.
[9] In a comprehensive and careful
judgment, Pillay J found for respondent and ordered appellants to pay
twelve (12) months remuneration
to respondent at the rate presently
applicable to a Director-General. In
justification of this award, the
learned judge set out a number of considerations of which she took
account.
9.1 Compensation is a redress for both
patrimonial
and
non-patrimonial
loss
.
9.2 All ‘developments’ up to and
after the occupational detriment contribute ‘cumulatively’
towards the assessment of compensation.
9.3 Subjection to an occupational
detriment for whistle-blowing is generally and on the facts of the
present case in particular
‘a very serious form of discrimination’
and such ‘merits a very high award’.
9.4 A failure by the employer to
investigate a disclosure and subsequent retaliation are factors which
‘count against’ the employer.
9.5 The fact that a whistle-blower
takes risks when making disclosures is a factor that ‘must be
acknowledged’.
9.6 The manner in which a disclosure
is made is also a relevant factor.
9.7 The more serious the nature of the
occupational detriment the greater the compensation; hence a
dismissal for making a protected
disclosure attracts as much as 24
months remuneration. In her view, suspension and being charged with
misconduct ‘are a step
away from being dismissed’.
9.8 The longer the dispute endures,
the greater the stress on an employee and the greater should be the
compensation.
9.9 The conduct of the employer in
resolving/not resolving the dispute.
9.10 The protraction of the matter
‘unduly’ was a ‘continuation of the appellants’ retaliation
against the respondent.
9.11 The appellants account within the
context of a constitutional democracy is ‘a consideration’. Their
failure to testify
or offer any explanation ‘aggravates’ the
claim against them.
9.12 The insults to and the
ill-treatment and impairment of the respondent’s dignity are
‘elements of the content’ occupational
detriment that the
respondent endured and which the remedy must redress.
Appellant’s
case
[10] Mr Bezuidenhout, who appeared on
behalf of the appellant, submitted that Pillay J had erred in making
the award of compensation
in that:
10.1 She failed to apply her
discretion in a judicial manner and thereby
failed to weigh a number of material
factors. He submitted that, upon a proper interpretation of the
applicable legislation (the
PDA read with the LRA), the award of
compensation was a discretionary matter in the hands of the judicial
officer.
The
maximum
award permitted by the legislation should be awarded only in
exceptional circumstances. In this case the award was excessive.
The judgment over emphasized the
effect of the occupational detriment on the respondent and failed
to take into account material
mitigating factors that ought to have
been weighed in favor of the appellants, being:
10.3.1 At no time did the respondent
suffer dismissal. It was common cause that the respondent was
remunerated in full during the
period of his transfer and subsequent
suspension.
10.3.2 The respondent was in fact
reinstated to his position by the Labour Court on 28 January 2004. A
disciplinary hearing was
conducted on 20 July 2004 he was found not
guilty. Although the Director-General refused to reinstate him a
settlement was then
reached, the terms of which were made known to
the court
a quo
.
10.3.3 In terms of the agreement
respondent’s employment contract, until age of retirement was paid
to him (taking into account
projected salary increases and
inflation). This “settlement/severance
package” was separate from the pension benefits (also calculated
until age of retirement)
of the respondent, which was also paid to
him. According to Mr Bezuidenhout, the respondent was, at the end of
the process, the
recipient of more than adequate compensation.
In order to evaluate there
submissions, it is necessary to consider first the relevant
legislative framework.
The
statutory scheme of compensation
[11] Section 3 of the PDA provides:
“
No employee may be subjected to
any occupational detriment by his or her employer on account, or
partly on account, of having made
a protected disclosure
.”
[12] As it was common cause on appeal
that the respondent’s disclosures were protected, it can be said
that there was a breach
of section 3.
Occupational detriment is defined as
follows:
“(
a) being
subjected to any disciplinary action;
being dismissed, suspended,
demoted, harassed or intimidated;
being transferred against his or
her will;
being refused transfer or
promotion;
being subjected to a term or
condition of employment or retirement which is altered or kept
altered to his or her disadvantage;
being refused a reference, or
being provided with an adverse reference, from his or her employer;
being denied appointment to any
employment , profession or office;
being threatened with any actions
referred to paragraphs (a) to (g) above; or
being otherwise adversely affected
in respect of his or her employment, profession or office, including
employment opportunities
and work security;”
[13] Once it has been established that
there has been occupational detriment, save in the case of a
dismissal (which is not relevant
to this present appeal), section
4(2) (b) provides the applicable remedy, being:
“
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: Provided that
if the matter fails to be resolved
through conciliation, it may be referred to the Labour Court for
adjudication
.”
[14] As acts which fall within the
scope of the definition of occupational detriment are deemed to be an
unfair labour practice,
it is necessary to have recourse to section
194(4) of the LRA which is the provision governing the award of
compensation. It provides
that the compensation awarded to an
employee in respect of an unfair labour practice must be just and
equitable but cannot be more
than the equivalent of 12 months
remuneration.
[15] In summary, once it has been
found that an employee has been subjected to occupational detriment
on account of having made
a protected disclosure, a court must
determine what compensation is just and equitable in the
circumstances, which amount is capped
at 12 months remuneration. In
the present case the judge in the court a quo appeared to conflate
the award of compensation with
an amount of remuneration. As already
noted section 194(4) of the LRA employs remuneration purely as a
means of capping the amount
of the award so ordered. By contrast, the
court a quo employed remuneration as the basis for the quantification
of the award. Accordingly
the Court
a
quo
erred in its
interpretation of s194(4) of the LRA and this court is thus at large
to determine the appropriate amount of compensation.
[16] In argument before this court, Mr
Bezuidenhout conceded that the following factors could legitimately
be taken into account
by this court in making such an award:
16.1 The embarrassment and humiliation
suffered by the respondent, a Deputy Director-General in the
Department of Justice and Constitutional
Development, for first of
all being removed with immediate effect from the Master’s business
unit, without any reason being given
and thereafter being subjected
to a suspension and subsequent disciplinary hearing. This
embarrassment and humiliation also affected
the family of the
respondent, his wife and his school going children.
16.2 The respondent suffered further
denigration by being referred to as a “dunderhead” by the then
Minster of Justice on national
television during October 2003. The
Minister went on to belittle the respondent by saying that he is “the
most timid public servant
and at worst he is the sort of person who
would not be able to box himself out of a wet paper bag”. The
Minister went further
to state that this statement could be printed.
16.3 In the same television broadcast
in which the respondent was called a “dunderhead”, the Minister
said that the respondent
was
rapped over the knuckles for poor work
performance. There was absolutely no truth in this allegation.
16.4 The respondent further suffered
gross humiliation by being moved to a position which was non-existent
at the time, and thereafter
for long periods he was kept in that
position without any work or instructions coming his way.
16.5 The respondent suffered
victimisation and harassment by being subpoenaed to an interrogation
in terms of s417 and s418 of the
Companies Act in the RAG-liquidation
by the lead liquidator, Mr E Motala, who was implicated in the
respondent’s disclosures.
The undisputed evidence revealed that the
respondent’s evidence in the inquiry was completely irrelevant. It
was obvious that
the only reason why he was subpoenaed was to
embarrass him.
16.6 The respondent had to employ an
attorney and counsel to protect his rights and interests at the
inquiry and he had to incur
substantial costs of over R100 000.00
which the appellants failed to repay him.
16.7 The respondent furthermore was
required to pay an attorney R77000. 00 for defending him in the
disciplinary inquiry where he
was eventually found not guilty.
16.8 The undisputed evidence of the
respondent was that, because of all the humiliation, victimisation
and harassment by the appellant,
he
had to receive trauma counseling as a
result of the way in which he was treated after the disclosures had
been made to the media.
16.9 The appellant insisted during the
trial that the respondent proceed with the leading of evidence on all
the issues despite
the fact that the matter had comprehensively been
dealt with during the disciplinary inquiry. As the judge
a
quo
noted, the appellants
were relentless throughout the entire saga in their pursuit of the
respondent. Nevertheless, the appellants
failed to produce any
evidence to substantiate claims made in the pleadings against the
respondent.
[17] It was not disputed by appellant
that all of these factors fall within paras (a) – (e) of the
definition of occupational
detriment. All of these factors are thus
relevant to the determination of the quantification of the amount of
compensation to be
awarded.
[18] The question thus is what is just
and equitable in circumstances where the compensation is for non
patrimonial loss. In this
connection, some assistance can be gained
from the jurisprudence relating to the award of a solatium in terms
of the
actio injuriarum.
In
these cases the award is, subject to one exception of a
non-patrimonial nature, and is in satisfaction of the person who has

suffered an attack on their dignity and reputation or an onslaught on
their humanity. The exception is for the amount relating
to the costs
of R177000 which were incurred by respondent in having to defend
himself, and which are patrimonial by nature. Factors
regarded by the
court as relevant to the assessment of damages generally included the
nature and seriousness of the iniuria, the
circumstances in which the
infringement took place, the behavior of the defendant (especially
whether the motive was honorable
or malicious), the extent of the
plaintiff’s humiliation or distress, the abuse of a relationship
between the parties, and the
attitude of the defendant after the
iniuria had taken place. It should be noted that this list is not
exhaustive in that specific
forms of infringement have their own
peculiar factors to consider
.
See
Bruwer v Joubert
1966 (3) SA 334
(A) at 338;
Jansen
van Vuuren v Kruger
[1993] ZASCA 145
;
1993 (4) SA 842
(A) at 857 – 858.
In the context of the present dispute
the following factors set out by Harms JA(as he then was) in
Mogale
v Seima
2008 (5) SA 637
(SCA) at 642
are
of particular relevance:
“
The main factor determining quantum
in damages is the seriousness of the defamation…The second factor
is the nature and extent
of the publication…The third factor is the
reputation…Lastly, the motives and conduct of the defendants are
relevant”.
[19] In the present case, a starting
point must be that respondent be compensated for the R177 000
incurred to defend himself against
the wholly unwarranted onslaught
launched against him. In addition, this court must take account of
the facts set out in paragraph
16 of this judgment. Sections of
these facts must be given significant weight. In particular, the
respondent suffered the indignity
of unfortunate, intemperate attacks
of an
ad hominem
nature made by the Minister of Justice on national television. The
gravity of this grossly unfair and irresponsible conduct on
the part
of the minister was compounded by the role played by the respondent
in seeking to promote integrity in government. Respondent
further
suffered the indignity of losing his employment. All of this occurred
because he acted as a ’whistle blower’ in terms
of the very
legislation introduced by first appellant’s department, which was
designed to protect such people. The Department
of Justice is
obligated to show the greatest respect for the PDA for, as the
promoter of the legislation it should know the cardinal
importance of
this Act in promoting the constitutional values of accountability and
transparency in the public administration of
this country.
[20] For all the reasons set out in
this judgment, a significant award is justified. While the principles
developed in the cases
dealing with a solatium are important, the
actual amount to be awarded is a discretionary act of the court ;
there is no
tariff to which recourse can be made.
[21] To the extent that precedent is
of assistance, in
Mogale and
Others v Seima 2008(5) SA 637(SCA)
at para 18, it was noted that courts have not been generous in their
awards of
solatia.
In Mogale, a newspaper, with a readership of possibly more than
900000, carried a report that plaintiff gave his girlfriend a ‘hot

klap’ for having taken notice of other men. The newspaper tendered
an apology which was not accepted. The Supreme Court of Appeal

reduced the award from R70000 to R12000.
[22] In this case, a far more
significant sum, should be awarded as compensation for the indignity
suffered, the extent of the
publication of the attack on respondent
( publication being on national television ) and the persistent,
egregious nature of the
attacks upon respondent which has been
triggered because he had acted in the national interest. In my view,
an amount of R100000
is thus justified, that is apart from the R 177
000 in respect of costs incurred in respondent’s defence.
[23] Although the amount to be awarded
has been reduced to R277 000, the nature of this litigation and the
outcome justify an award
of costs in favour of the respondent.
[24] In the result the following order
is made.
1. The order of Pillay J is set aside
and replaced with the following order:
(a) The respondents are directed to
pay the applicant R277 000 in compensation;
(b) The respondents are to pay the
applicant’s costs, including the costs of senior counsel, such
costs also to include those
reserved on 31 August 2006.
2. Appellants are to pay the
respondent’s costs of appeal, including the costs of senior
counsel.
___________________
DAVIS JA
I agree
__________________
ZONDO JP
I agree
____________________
JAPPIE JA
Appearances
For the appellant :Mr P Bezuidenhout
Instructed by :The State Attorney
For the respondents :Advocate H.R
Woudstra SC
Instructed by :Henning Viljoen
Attorneys
Date of hearing :3 March 2009
Date of judgment :2 June 2009