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[2012] ZALAC 15
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Radebe and Another v Premier, Free State and Others (JA 61/09) [2012] ZALAC 15; 2012 (5) SA 100 (LAC); [2012] 12 BLLR 1246 (LAC); (2012) 33 ILJ 2353 (LAC) (1 June 2012)
27
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT,
JOHANNESBURG
JUDGMENT
Reportable
Case no: JA 61/09
In the matter between:
NTOMBI GLADYS RADEBE
…...............................................................
First
Appellant
VERONICA LEAH DHLAMINI
…........................................................
Second
Appellan
t
and
PREMIER, FREE STATE PROVINCE
….............................................
First
Respondent
MEMBER OF EXECUTIVE COUNCIL FOR
EDUCATION
FREE STATE PROVINCE
…..........................................................
Second
Respondent
SUPERINTENDENT GENERAL OF
EDUCATION,
FREE STATE PROVINCE
…..............................................................
Third
Respondent
Heard: 22 September 2010
Delivered: 01 June 2012
Summary: Labour Law –
Protected Disclosures act – definition of employer in the act
clear and unambiguous – approach
to interpretation of statutory
provisions restated – Provincial MEC for Education employer of
employees in the provincial
Education department – disclosure
made to MEC is compliant with the act.
Meaning of “good faith”,
“reason to believe” and “information” in the
act discussed –
narrow interpretation of the provisions of the
act is inimical to the purposes of the act – honesty plays a
central role
in determining whether a disclosure was made in good
faith and whether the employee had reason to believe that
improprieties were
committed.
Meaning of information - could be
factual, opinion or hearsay etc but must be based on some facts –
not a requirement to prove
the truth or accuracy of information
disclosed.
Relief – full retrospective
reinstatement awarded
JUDGEMENT
______________________________________________________________
MLAMBO JP
[1] This is an
appeal directed at the judgment and order of the Labour Court
(Moshoana AJ) handed down on 17 February 2009. In that
judgment, the
Labour Court dismissed an unfair labour practice claim by the
appellants that they had suffered an occupational detriment
after
making what they alleged to have been a protected disclosure in the
context of the Protected Disclosures Act
1
(the PDA). Leave to
appeal was granted by the Labour Court.
[2] At all material times, the first
appellant (Radebe) was a School Management and Governance Developer
and second appellant (Dhlamini),
the Principal of Thabong Primary
school. Both were based at the Lejweleputswa Education District in
Welkom under the auspices of
the Free State provincial sphere of
government, more specifically in the education department. On 9
December 2005, the appellants
signed an affidavit in which they
stated under oath:
‘
That
we are the complainants against corruption, nepotism and fraud that
is ongoing in the Department of Education in the Free State,
generally and at Lejweleputswa Education District in particular.’
They attached an eight page document
to that affidavit and disseminated it to the President of the
Republic of South Africa, National
Minister of Education, Premier of
the Free State Province, Member of the Executive Council (MEC) in
charge of Education in the
Free State Province, the Superintendent
General for Education in the Free State Province, Deputy Director
General for Education
in the Free State Province Education Department
as well as the District Director of Lejweleputswa District.
[3] In that document (the disclosure),
the appellants chronicled what they viewed as conduct amounting to
corruption, nepotism as
well as fraud, fruitless and wasteful
expenditure and requested that these be investigated. I set out its
contents in full:
‘
We
the undersigned as i
interested
parties in the Education Department in the Free State would like to
request deeper & serious investigation in the
following:
REDEPLOYMENT
Principals
and Deputy Principals
Principals
were redeployed by the MEC without consultation with the School
Management Developers (SMDs) who are the immediate Supervisors.
Some
principals were redeployed to the District Office where they were
later on absorbed as SMDs and SYRAC officials.
They
received letters which supported their absorption. Schools and the
District Staff were notified of their converted posts. These
Officials were with all relevant equipment to aid them in executing
their (e.g Stamps, offices, cars etc).
Thereafter,
in the SMD Conference held in Golden Gate in September 2005, the MEC
announced
that 2 SMD’s should relinquish their posts with immediate
effect and these instructions have implemented. Therefore
our
concerns are the following:
Legal
& financial implications of such redeployment. This was
challenged by NAPTOSA and certain individuals through the High
Court
ruling.
Payment
of acting Principals.
Legal
& financial implications of “demotions”.
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 posts.
For
example; the JC Motumi Secondary School Principal was to be
redeployed to Icoseng Primary School. Amid that L. A Wesi has SMT
members, the Deputy Principal from JC Motumi Secondary School was to
be redeployed to LA Wesi as acting Principal.
At
Concordia Secondary School in Theunissen, the Deputy Principal has
been the acting Principal since January 2005, abruptl removal,
a
Deputy Principal from Bodiba Primary School also in Theunissen was
appointed as the new acting Principal.
This
post had been advertised in the
vacancy list no. 1 of 2005, and
the new acting Principal is the candidate – proving that
nepotism has been applied and will
still apply in filling the post.
Speculations
are that the new Concordia acting Principal paved the way for the
wife of Bodiba Primary School Principal, who is an
HOD also at
Bodiba, to occupy either a Deputy Principal or a Principal post
whilst the current Principal - her husband will be
promoted to one of
the SMD posts that are being relinquished by demoting two(2) current
SMDs.
1.2
District Director
Allegedly,the
Lejweleputswa District Director is to be redeployed to Bloemfontein
by early January 2006. This is really surprising,
because the MEC had
initially ignored Educational Department protocol and joined the
entourage which announced the District Directors
appointment. The MEC
indicated in that meeting that whoever does not support the District
Director, shall meet her wrath.
This
move and utterances have raised speculations of nepotism in the
District Director’s appointment. The District Director’s
husband - a CES (Chief Education Specialist) at Lejweleputswa acted
as a District Director, implying that the husband paved way
for his
wife.
In
practice, the wife was a District Director and the husband a CES. It
is thought that when the MEC realized the abnormality of
a family
manipulating the district she then immediately redeployed the husband
to the Special Programmes/Projects Directorate dealing
in tenders, in
Bloemfontein. A strategic move!
It
is against thid background that an investigation should be done on:
CES
husband. Redeployment reasons are unknown.
District
Director wife. Redeployment reasons are unknown.
Are
the Director’s skills causal to the deployment to
Bloemfontein.
Is
it lack of skill that resulted in her redeployment?
Which
post will she occupy in Bloemfontein?
Is
the Director paving the way for another of the MEC’s
favourites from Whole School Evaluation?
Is
this not a comfort zone creation for the family?
Is
it a strategy for her to join her family whilst many educators and
other Departmental Officials are separated from their families?
The
MECs vested interest and relation to this particular family should
honestly, seriously and thoroughly be investigated.
The
Ex- District Director of Lejweleputswa
The
redeployment of the ex-District Director of Lejweleputswa to the
Finance Section in Bloemfontein is questionable. He was redeployed
from one section to another within a very short space of time. It
seems he was being prepared for the senior post he is currently
occupying - Chief Financial Officer (CFO).
Why
was he redeployed from Lejweleputswa?
Was
it because a space was being created for the husband-wife comfort
zone?
What
about the investigations that were done by the Lejweputswa
Provincial Department which alleged his role as an Acting Officer?
Was
he also strategically removed to pursue someone’s interest?
RESKILLING
OF PRINCIPALS
Some
of the Principals underwent a re-skilling programme which was equally
unclear what informed it. The criteria used by the MEC
to select
those who went for reskilling was not and is still not known. The
SMDs as immediate supervisors to the Principals were
not consulted
and involved in the selection process
All
the Principals from outside Welkom who were in the reskilling
programme were accommodated at Stanville Inn, Welkom and were
catered
for, for a month by a private caterer. Therefore the following
concerns should be addressed:
What
informed the MEC, as the Lejweleputswa District had no knowledge
thereof?
Which
budget was used for accommodation & catering?
Who
were the caterers?
Were
tender procedures followed?
How
many catering services were used and why?
NEW
OFFICE MOVEMENTS
The
Odendaalsrus offices which were occupied by the Department of
Education were closed and their Officials were transferred to
Welkom.
During first quarter in 2005, the SMD Section including part of the
Administration Section was informed that by 1 April
2005 there was to
be exodus to the Western Holdings Mine Offices. This was done whilst
the Learning Facilitation, SYRAC and BET
Sections occupied Amercosa.
There
were a lot of frustrations faced by the affected Sections in the Mine
Offices as they were isolated from the entire community,
insufficient
and no transport to and from the Mine Offices, communications broke
down as there was no technological means such
as telephones, faxes,
computers etc.
During
August 2005, a second instruction was given by the MEC for another
exodus back to the Amercosa Building which is being rented
by the
Department of Education. This too, was done whilst the Learning
Facilitation and SYRAC Sections had to occupy the Mine Offices.
It
has to be noted that immediate occupancy of the Amercosa Building was
due to the pressure by Unions (SADTU, COSATU, NEHAWU, COSAS).
Allegedly,
there is a three (3)-year contract between the Department of
Education and the Western Holdings Mine which was signed
during the
Ex-District Directors term of office. The contract is set to expire
in 2006.
Who
signed it?
Who
paid for it?
Who
occupied these Offices prior to the first Exodus?
It
is assumed that fruitless expenditure was incurred during all such
movements.
Therefore an investigation needs to be done on the
basis on which the Ex-District Director was promoted to CFO position
whilst he
left an alleged legacy of fruitless expenditure in the
Lejweleputswa District.
We
request an investigation be conducted on:
The
contract in itself
The
budget used for renovations, transport and installation in the Mine
Offices
The
role which the present District Director should have taken in
adhering the contract implementation
The
role which the MEC played in initiating the exodus and seeing
through to the implementation of the contract.
4.
THE MEC’s APOINTEES
During
MEC Kganare’s term of Office, two (2) Officials who allegedly
were on three (3) year contracts as VALUES IN EDUCATION
Officials
were appointed at Lejweleputswa District. Their roles were not clear
such that presently they are in Learner Section.
How
is it that they were transferred to Learner Section?
Is
it transfer or absorption?
What
is the future of the two (2) officials in our District after the
three (3) year contract?
As
if all wasn’t enough, one of the seconded Official in Learner
Section had been action as CES (Deputy Chief Education Specialist),
there is high speculation that the post will be given to one of the
ex-District Director’s favourites who comes from Kroonstad.
Therefore it is evident that the present District Director as she
continues to pursue his interests characterized by nepotism instead
of pursuing the goals of the Department.
5.
APPPOINTMENTS IN THE FREE STATE DEPARTMENT OF EDUCATION
It
is with concern that after the placement of the new MEC, the Head
Office appointments become a theatre wherein the Head of Education
was said to be transferred/absorbed or seconded in the Premiers
Office. There was an actor in the Head’s Office. It was not
clear why such an effective and efficient person was removed from the
Education Department. Due to the HOD’s removal, a series
of
actors were witnessed at the Head Office in Bloemfontein. This
resulted in instability and lack of continuity and consistency.
As
we witnessed the drama unfold at Head Office, the Chief Director was
caught by the Scorpions and coverage was lively broadcasted
by the
SABC. The Chief Director was released on a R 50 000 bail pending
the investigation. He was subsequently suspended by
the MEC yet
ironically after his re-instatement, he was elevated to the Deputy
Director General (DDG) post.
Why
was the Head of Education removed from the Department of Education?
Why
was the Chief Director elevated after placing the Department under
great and public disrepute?
What
is the Departmental role in such a situation?
How
is the Department image portrayed?
What
is the MEC’s vested interest in not only this case but in the
DDG himself?
If
this is a paid senior position, is this designed and destined for
him only?
At
Lejweleputswa District, there are some of the appointments which are
a total disappointment, and the concern was raised in various
meetings and submissions were made but all were ignored. The
appointments (especially in the Administration Section) highlight
a
lot of nepotism and favouritism whilst effective and committed
subordinates are side-lined. The result is inefficiency and
ineffectiveness
in most of the section. Some of these Administration
Officers are moved from pillar to post because they are not
favourites.
One
Official in particular (Mr Xaba, who is a very dedicated, committed,
effective and efficient workerholic) happened to be a whistle
blower
against corruption and fraud especially in the Provision Section. A
submission was made and an investigation was done at
the
Lejweleputswa District whilst the present CFO was a District
Director, yet to date there is no outcome of the investigation.
Instead he was and still is continually moved from one section to
another.
Presently
he is the Workers Section and was once confronted by the District
Director because he had blown a whistle. Unlilke other
Officials, he
is also ostracized in merit awards as no one can claim him due to him
being tossed from one section to another. This
is considered as
harassment and violation of his appraisal rights because he cannot
tow the line of corruption and fraud.
The
deeper investigation should be conducted on the disposal system as
there are strong allegations that there was corruption involved
as he
(Mr Xaba) refused to sign the disposal documents. It is also
requested that Mr Xaba’s submission and supportive documents
that were sent to Provincial Department of Education to be revisited
in order to gain more understanding of the corruption and
fraud that
occurred during the present CFO’s term of office as a District
Director.
Corruption,
theft and fraud concerns were also raised by an SMD (Dr. Radebe) and
the very same investigation team sent to the Lejweleputswa
District
had once again failed to present the results of their investigation.
For these reasons:
A
neutral and independent investigation team should be sent to
thoroughly investigate concerns raised by Mr Xaba, Dr Radebe and
Mrs
Maruping (an ex-LF who was also one of the aggrieved).
Credentials
or profiles of all investigating team members must be checked as one
member (Mr Mokoena) had relations which he consented
to and as a
result, he was recused from the presentation.
Did
he have an influence on the outcome of the investigation? One can
only wonder!
Why
were those suspected and found with Departmental stock by the
Scorpions not suspended pending the investigation?
Nepotism
is a tight web of corruption in which favourites are placed in
strategic positions. This should be thoroughly investigated
and
uprooted for the successful running of the District.
All
schools that had been closed should be investigated as to where the
Departmental stock is, Farm Schools in particular.
Books
that schools had not ordered yet were delivered to such schools
should be investigated.
There
were SMD’s (School Management Developers) interviews at the
Lejweleputswa District and it was indicated that all those
women were
not suitable for the post. A calculated move!
The
present appointee was a Principal at Dr Cingo Secondary School,
Kroonstad - a post which was vacated by the present CFO.
It
is for this reason that we request deeper investigations on the
relationship of the present SMD and present CFO because there
are
high speculations of nepotism practiced in expense of the Department
of Education.
6.
SCHOOL MANAGEMENT TEAMS (SMT) TRAINING IN THE FREE STATE
It
is requested that a thorough investigation be conducted on the SMT
Training in 2003 during the term of office of the present
CFO.
Who
were given the tenders? (because there is speculation that one
person in particular was given more tenders because of nepotism
and
his association with the higher echelons of the Department.)
Neutral
investigators especially for this investigation should be sought,
otherwise the syndicate will build a fortress.
7.
ALLOCATION OF TENDERS
Honest
and deeper investigation should be conducted as tenders are given to
favourites and family members e.g Learner Transport
in Theunisson,
Parys and Brandfort. Investigation should also go for the 31 million
Project extra funding on the renovations of
schools. The role of the
MEC on both should be thoroughly investigated.
We
hope this will receive the necessary attention and immediate action
as people are enriching themselves through the Department
of
Education. Be aware that the syndicate of corruption is so strong and
occupies most strategic positions. The untouchable MEC
of Educations’
quasi – roles should be investigated.’
[4] Upon receipt of
the disclosure, the Free State Department of Education (the
Department) responded through the State Attorney,
Bloemfontein,
per
letter dated 15
December 2005, to the effect,
inter
alia,
that
it noted the contents of the disclosure with concern, that the MEC
and other officials mentioned in the disclosure, viewed
the
appellants conduct as a deliberate attack on their dignity and called
on them to desist from such conduct as well as demanding
that they
discontinue such conduct or face the consequences. The National
Minister of Education
2
responded
per
letter dated 13
December 2005 to the effect that the matter fell outside her
jurisdiction and that she would refer the matter to
the Free State
Department of Education for investigation. The MEC’s secretary
also acknowledged receipt of the disclosure
as well as the letter
from the Minister of Education with an undertaking to refer the
matter to the MEC. There is no indication
on record that the MEC sent
any response to the appellants.
[5] The appellants
wrote to the Minister in response to her letter stating,
inter
alia
,
that:
‘
5.1
Among the people we requested an investigation for, is the MEC for
Education. With due respect how can she investigate herself?
As
we waited for the MEC’s response as indicated in your letter,
we received the attached we received the accompanying
intimidatory
and unsigned letter from the Office of the State Attorney,
Blooemfontein dated 15 December 2005.
...
We
therefore request your urgent intervention in this matter as we do
not intend to discontinue with the matter as it is the
demand
conveyed by the Office of the State Attorney. We still request and
independent investigation into the matter of enquiry.’
[6] The Minister responded
per
letter dated 17 March 2006 simply reiterating her stance as conveyed
in her initial letter. She however further stated,
inter alia
,
that: ‘Take note that should you intend to continue with the
matter despite the instructions of the State Attorney not to
continue, you stand the risk of an appropriate action being taken
against you as indicated in his letter.’ Thereafter the
Department,
per
letter dated 21 December 2005, appointed a Mr
P M Tladi and Mr L Gildenhuys to investigate the appellants’
allegations. The
letter of appointment stated that the Tladi and
Gildenhuys were appointed in terms of the Disciplinary code and
procedure for Educators
and specified the powers of the investigators
regarding the investigation. Appellants refused, upon being invited,
to take part
in the investigation that ensued, alleging
inter
alia
, that the letter from the state attorney barred them from
making allegations of the sort they had made in their document.
[7] It should be mentioned that the
appellants did at some stage after their initial disclosure refer
same to the Public Protector
for attention. It is not necessary to
consider this referral as it has no bearing on the appeal and the
conclusion we have arrived
at.
[8] Upon conclusion of the
investigation, Tladi and Gildenhuys,
inter alia
, found that:
‘It is the opinion of the investigating team that the
allegations that had been made are baseless and unfounded
and
malicious and cannot be found or established after making the proper
investigations. Due to the fact that Dr. Radebe and Ms.
Dhlamini did
not co-operate with the investigating team it was not possible to
investigate all the allegations.’
They further recommended that:
‘
1.
The Superintendent General Education should not establish a
commission of enquiry to investigate or call any agency of the State
to investigate these allegations as they are made out of malice and
speculation.
2.
Disciplinary measures be taken against Dr. Radebe and Ms. Dhlamini.’
[9] The Department accepted the
recommendation and instituted disciplinary action against the
appellants.
The
crux of the charges levelled at them was that in making the
allegations they had contravened section 18 of the Employment of
Educators Act
3
(EEA) and that in
so doing they had committed the common law/statutory offence of
crimen
iniuria
i.e
by publishing and/or communicating defamatory statements in respect
of the MEC for Education, the CFO and the District Director
of the
Lejweleputswa district, to the effect that either and or all of them
were guilty of nepotism, fraud and that they had caused
fruitless and
wasteful expenditure. With respect to Radebe, she faced additional
charges regarding allegedly dishonest conduct
pertaining to an
insurance claim and unauthorised trips in respect of a subsidised
motor vehicle. As is apparent from the crux
of the charges
4
brought against the
appellants the disciplinary action was initiated against them on
account of them having made the disclosure.
[10] Upon being served with the charge
sheet, the appellants unsuccessfully tried to interdict the
Department, in the Free State
High Court, from pursuing with the
disciplinary action. Their basis was that they considered themselves
to be whistleblowers in
terms of the PDA and that the disciplinary
inquiry amounted to an occupational detriment. That court (per Musi
J) found that the
purported disclosure was made to persons not
contemplated in sections 5,6,7,8 and 9 of the PDA, and concluded that
the appellants
had not made a protected disclosure within the
contemplation of section 9 of the PDA and dismissed their application
with costs.
It is not necessary to traverse the reasoning of that
court as that judgment is not on appeal before us nor does it have
any bearing
on the issues in the appeal.
[11] The
disciplinary process thereafter unfolded with the appellants’
participation and upon conclusion the appellants were
found guilty on
the alternative to charge 3 being: ‘
Alternative
to Charge 3, you have contravened
Section 18(1)(f)
of the
Employment
of Educators Act 76 of 1998
in that on the 10
th
February 2006 and at or
near Welkom, you unjustifiably prejudiced the administration,
discipline or efficiency of the Lejweleputswa
District Office or the
Department of Education when you communicated the unavailability of
the Accounting Officer to the insurers
Glenrand MIB as reason for the
incomplete claim form whilst being aware that the damage to your
subsidised vehicle registration
number 245 DOC FS resulted from an
unauthorised trip.’
[12]
A
sanction of demotion was imposed against both but Dhlamini succeeded
in having her sanction altered to a three month suspension,
on
appeal. Radebe’s appeal was unsuccessful. They contested the
fairness of the disciplinary action as well as the sanctions
imposed
against them and invoked the dispute resolution mechanisms contained
in the Labour Relations Act (LRA)
5
by referring an
unfair labour practice dispute to the Education Labour Relations
Council for resolution through conciliation. The
dispute could not be
resolved and the matter was referred to the Labour Court for
adjudication.
[13] In their
papers, the appellants claimed that they had made a protected
disclosure within the contemplation of the PDA and as
such the action
taken against them was an occupational detriment as defined in the
PDA and amounted to an unfair labour practice
in terms of section
186(2) (d). T
his section
provides that an unfair labour practice is any unfair act or omission
that arises between an employer and employee involving
an
occupational detriment other than dismissal, in contravention of the
PDA, on account of the employee having made a protected
disclosure as
defined in the PDA.
The
Labour Court ruled as stated earlier that the appellants had not made
a protected disclosure and dismissed their unfair labour
practice
claim with costs.
[14]
The Labour Court’s conclusion
that the appellants had not made a protected disclosure within the
contemplation of the PDA
rests essentially on two pillars. In the
first place, the Labour Court found that the disclosure they made was
not to their employer
and also that it was not about the conduct of
their employer. The other pillar on which the Labour Court’s
ruling is premised
is that the appellants had not acted in good faith
when making their disclosure and that they did not have reason to
believe that
the improprieties they alleged in their disclosure were
committed or were ongoing.
[15] The essential issue in the appeal
therefore is whether the appellants had made a protected disclosure
within the contemplation
of the PDA. In this regard, we are required
to determine whether the disclosure was made by the appellants to
their employer and
whether they lacked the requisite good faith and
reason to believe that improprieties were committed, when making the
disclosure.
On both scores, the Labour Court, as indicated, found
against the appellants.
[16] Perhaps it is prudent at this
juncture to set out certain key provisions of the PDA which have a
bearing on the appeal. We
must remind ourselves at the outset that
the PDA’s primary sphere of focus is the employment/working
environment regarding
the disclosure of information about unlawful
and/or irregular conduct by the employer and/or its employees. The
PDA further provides
primarily for the protection of employees from
being subjected to what is referred to as an occupational detriment
in the PDA for
having made such a disclosure
6
as well as suitable remedies to
employees who have suffered such an occupational detriment on account
of having made a disclosure
that enjoys the protection of the PDA.
Provision is made in keeping with the objects of the PDA for
procedures in terms of which
employees may disclose information
regarding such conduct.
[17] Section 1
of
the PDA contains definitions of the key terms used in the act. In the
first place, the term ‘
disclosure’
is defined as ‘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 that
(a)
that a criminal offence has
been committed, is being committed or is likely to be committed;
(b)
that a 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 the
Promotion of Equality and Prevention of Unfair Discrimination Act,
2000
; or
(g)
that any matter referred to in paragraphs
(a)
to
(f)
has been, is being or is likely to be deliberately
concealed’.
[18] An occupational detriment is
defined in
section 1
by reference to a number of instances that could
occur in the employment environment arising from the making of a
disclosure by
an employee. For purposes of this judgment, the
following instances are relevant: subjecting an employee to any
disciplinary action;
dismissing, suspending, demoting, harassing or
intimidating an employee. Furthermore, the wrongdoing targeted by the
PDA is referred
to as an “impropriety”. This is defined
as any conduct falling within any of the seven instances of
wrongdoing referred
to in paragraph 11 above i.e. the so called seven
types of improprieties.
Protected disclosure
[19] However not all disclosures are
protected in the sense of immunising the employee making the
disclosure from being subjected
to an occupational detriment, by the
employer implicated in the disclosure. A disclosure is protected if
it is made in terms of
one or more of five scenarios provided in the
PDA. These are if the disclosure is made in terms of
sections 5
,
6
,
7
,
8
or
9
. For purposes of this judgment, I propose to consider only
those provisions considered by the Labour Court to arrive at its
decision
being essentially
section 6
and to a certain extent
section
9.
[20] Broadly,
section 1
contains two
qualifying requirements for a disclosure that will be regarded as
protected in terms of the PDA. These are that the
employee making the
disclosure must have “reason to believe” that the
information disclosed “shows” or
“tends to show”
that an impropriety has been committed or continues to be
perpetrated. These are the general requirements
found in
section 1
in
terms of which all disclosures have to comply with in addition to the
specific requirements found in the particular section
within which a
disclosure is sought to be located.
Disclosure by an employee to an
employer
[21]
Section 6
provides that any
disclosure made in good faith to the employer of the employee is a
protected disclosure.
Ex facie,
the provisions of
section 6
, a
disclosure made in terms thereof has to comply with two essential
requirements. These are that the disclosure must be made
to the
employer of the employee making the disclosure
and that
it
must be made in good faith
. (My emphasis). The Labour Court found
that the disclosure at issue in this matter was not in compliance
with
section 6
in that it was not made to the appellants’
employers and that it was not made in good faith.
[22] ln arriving at this conclusion,
the Labour Court briefly considered the definition of an employer
contained in the PDA and
then proceeded to consider the provisions of
the EEA regarding employment relationships in the context of that
Act. This led the
Labour Court to conclude that the persons to whom
the appellants made the disclosure were not their employers. The
court found
on this score, and based entirely on the provisions of
the EEA, that Radebe’s employer is the Superintendent General
for
education in the Free State Department of Education. In respect
of Dhlamini, the court concluded that her employer is the Thabong
Primary School where she was the principal. The Labour Court further
reasoned that any disclosure ‘not made to the employer
of the
employee disclosing the impropriety does not receive any protection
under
section 6
’, that ‘
section 6
does not contemplate
disclosure to employees of the employer’ and further that the
PDA is clear that, ‘that person
must be acting on behalf of or
on the authority of such an employer.’ The Labour Court further
dismissed the suggestion that
the MEC was the employer of the
appellants.
[23] This reasoning led the court to
conclude that as the appellants had complained, in general terms,
about the conduct of the
MEC for education in the Free State
province, the complaint was not a disclosure in terms of the PDA as
the MEC was not their employer.
The Labour Court’s resort to
the EEA appears to have been influenced by the agreement between the
parties that the appellants
were employees of the Free State Province
Department of Education. The court then recounted the provisions
dealing with employment
relationships in the EEA and made its
conclusions as already mentioned.
7
[24] The PDA defines an employer
8
as ‘any person who employs or
provides work for any other person and who remunerates or expressly
or tacitly undertakes to
remunerate that other person; or who permits
any other person in any manner to assist in the carrying on or
conducting of his,
her or its business, including any person acting
on behalf of or on the authority of such employer.’ This
definition is,
to me, clear and unambiguous. I can find no basis to
suggest otherwise and am therefore not persuaded that it was
necessary for
the Labour Court to have resorted to the EEA to
determine the employer of the appellants. Clearly, the court erred,
in my view,
by ignoring the definition of employer as we have in the
PDA.
[25] The correct approach, in my view,
when interpreting a statutory provision is that one must focus on the
language found in the
relevant provision and not resort to extraneous
sources unless the provision is unclear and/ or ambiguous.
Furthermore, when interpreting
a legislative provision, one has to
determine the meaning of the words used in the relevant provision
according to their natural,
ordinary or primary meaning and also in
light of their context, including the subject matter of the statute
and its apparent scope
and purpose.
9
[26] As the SCA remarked in
Abrahamse
v East London Municipality and Another;
East
London Municipality v Abrahamse
:
10
‘
Interpretation
concerns the meaning of the words used by the Legislature and it is
therefore useful to approach the task by referring
to the words used,
and to leave extraneous considerations for later.’
See also
Ebrahim
v Minister of the Interior,
11
where it
was stated
:
‘
Once
the meaning of a statutory provision is found to be clear and
unambiguous it is the function of a Court of law to give effect
thereto. It is not then permissible to have recourse to pre-existing
legislation for the purpose of construing the statutory provision.’
[27] The court further erred in
concluding that the conduct complained of should be that of the
employer and not that of its employees
unless they were acting with
the authority of the employer. In the first place, the definition
found in the PDA is clear and wide
enough to cover the conduct of
employees of the employer in the course and scope of their employment
with the employer. Furthermore,
the approach of the Labour Court is
seriously limiting and would exclude the conduct of a wide range of
officials and functionaries
in state departments. It is instructive
to note from the document authored by the appellants that the
information disclosed by
them not only deals with the conduct of the
MEC, but also details the conduct of other officials in the Free
State Education Department.
On the basis of the Labour Court’s
approach, all their actions fell outside the ambit of the PDA.
[28] It is axiomatic that the Labour
Court’s springboard in its gravitation towards the EEA was its
finding that the Free
State Department of Education was where the
appellants were employed. This was correct and for this reason their
employer is the
head of the education portfolio in the Free State
province in the person of the MEC. It is the MEC who exercises
overall operational
control and oversight regarding all matters
educational in the provincial sphere of government in that province.
The Superintendent
General is an employee appointed by or at the
behest of the MEC and cannot replace the MEC as the appellants’
employer. The
disclosure was therefore in accordance with
section 6
and the Labour Court erred in concluding otherwise. After all it is
the Free State Department of Education that instituted disciplinary
action against the appellants. It did so in terms of its prerogative
as their employer. The MEC is the accounting authority and
that makes
the incumbent the employer of employees in that department. This is
squarely within the ambit of
section 1
in the PDA.
[29] This conclusion on my part
disposes of one of the bases on which the Labour Court dismissed the
claim. Perhaps not strictly
necessary but I also mention that the
disclosure also complied with
section 7.
This section provides:
‘
Any
disclosure made in good faith to a member of Cabinet or of the
Executive Council of a province is a protected disclosure if
the
employee’s employer is—
a)
an individual appointed in terms of legislation by a member of
Cabinet or of the Executive Council of a province;
b)
a body, the members of which are appointed in terms of legislation by
a member of Cabinet or of the Executive Council of a province;
or
c)
an organ of state falling within the area of responsibility of the
member concerned.’
It is common cause that the disclosure
was also made to the Premier of the Free State Province, who is a
member of the Executive
Council of the Free State Province. It is the
Premier of a Province who appoints MECs. Furthermore, the appellants
are employees
in the Free State Department of Education which is an
organ of state within the provincial sphere of government under the
control
of an MEC. These findings render it unnecessary to venture
into the question regarding the applicability of
section 9
of the PDA
which the Labour Court also dealt with. That is an issue for another
matter.
[30] It remains for me to consider if
indeed the disclosure was not made in good faith by the appellants
and whether they did not
have the requisite reason to believe that
the information they disclosed showed or tended to show that
improprieties had been committed
or were continuing, as found by the
Labour Court. In this regard, the Labour Court’s view was that
on examining the evidence
tendered by the appellants it was not
possible to find that the applicants could have acted in good faith
when there was no basis
for their allegations. The lack of good faith
was to the Labour Court, also demonstrated by the fact that the
disclosure was “replete”
with speculation and that the
appellants had “spurned” an opportunity to take part in
the investigation instituted
to investigate the allegations made by
them in their disclosure. Furthermore, the Labour Court reasoned that
the appellants could
not have had reason to believe that the
information they disclosed was substantially true as they had made no
attempt to verify
same, which was by its nature very serious. The
Labour Court then stated:
‘
In
my view the word reason means basis, in a form of facts and not
baseless speculations or opinion.’
And further:
‘
So
even if one is to follow lavishly the test applied by the EAT, there
must still be facts upon which a believe (sic) is based.
However my
interpretation of the PDA suggests a slightly different test. The
test being, there must be a factual basis upon which
a believe (sic)
must rest.’
[31] The decision that the Labour
Court had in mind is not that of the Employment Appeals Tribunal but
actually that of the Supreme
Court of Judicature Court of Appeal
(Civil Division) in
Babula v
Waltham Forest College
,
12
where it was stated:
‘
If
the employee makes a disclosure in good faith to his employer of
relevant qualifying information, then provided he is not committing
a
criminal offence in making the disclosure he is protected from
dismissal and detrimental action short of dismissal. The information
may in fact be inaccurate or wrong that does not move the protection
provided the employee has a reasonable belief that the information
tends to show one or more of the matters set out in
section 43(1)
(b).’
[32] The Labour Court then went on to
conclude that there was no factual ground or proof to substantiate
the allegations made by
the appellants in the disclosure. This
finding by the Labour Court is not surprising bearing in mind that in
the proceedings before
it, its pre occupation was to find
corroboration for and verification of the allegations made by the
appellants in the disclosure.
Counsel for the appellants argued that
the test for determining whether the appellants had reason to believe
or had lacked good
faith was not as high as the Labour Court had
pitched it. Counsel referred,
inter
alia
, to the decision of
the Employment Appeal Tribunal in Darnton v The University of
Surrey
,
13
where the Tribunal stated:
‘
While
the determination of the accuracy of the factual allegations might be
a useful tool to determine whether the worker's belief
was reasonable
the reasonable belief had to be based on the facts understood by the
worker and not as actually found to be in the
case.’
[33] In my view, the nature of the
information and meaning of that term as propounded by the Labour
Court is rather too narrow and
introduces an element of truth and
verification. It presupposes factual accuracy of the allegations made
in a disclosure. The PDA
does not contain such an element. The phrase
“tends to show’ in
section 1
cannot be equated to “show”.
Had the legislature intended the approach propounded by the Labour
Court, it would have
used only the term “show”. The
phrase “tends to show” properly interpreted means that
the information in
the disclosure “conveyed a suggestion of”
an impropriety or conduct that may have taken place or might be
continuing.
I do not understand the provision itself to include a
requirement that what is conveyed must be factually accurate or be
the truth.
14
If the
employee believes that the information is true it would fortify the
reasonableness of his belief from which, in turn, his
bona fides can
be inferred.
[34] The
approach of the Labour Court is too narrow and would, simply put,
seriously gut the PDA of its essence and purpose. The
PDA seeks to
address important constitutional injunctions regarding clean
government and effective public service delivery.
See
in this regard the statement by the Supreme Court of Appeal in
City
of Tshwane Metropolitan Municipality v Engineering Council of SA and
Another
,
15
where it was held that a narrow
definition of the term “information” under the PDA is
inconsistent with the broad purposes
of the PDA, namely the
encouragement of whistleblowers in the interests of accountable and
transparent governance. The SCA stated
in this regard:
‘
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.’
[35] There is further, in my view, an
overlap when determining whether the employee making the disclosure
was acting in good faith
and further whether he had the requisite
reason to believe when making a disclosure that improprieties had
been committed or were
continuing. Honesty plays a pivotal role in
both situations. Whilst good faith and honesty may conceivably amount
to the same thing,
I am of the view that a case by case approach is
the proper one for a court considering these issues. Factors such as
reckless
abandon, malice or the presence of an ulterior motive aimed
at self advancement or revenge, for instance, would lead to a
conclusion
of lack of good faith. A clear indicator of lack of good
faith is also where disingenuity is demonstrated by reliance on
fabricated
information or information known by the employee to be
false. The absence of these elements on the other hand is a strong
indicator
that the employee honestly made the disclosure wishing for
action to be taken to investigate it.
[36] Simply stated if an employee
discloses information in good faith and reasonably believes that the
information disclosed shows
or tends to show that improprieties were
committed or continue to be committed then the disclosure is one that
is protected.
The
requirement of ‘reason to believe’ cannot be equated to
personal knowledge of the information disclosed. That would
set so
high a standard as to frustrate the operation of the PDA. Disclosure
of hearsay and opinion would, depending on its reliability,
be
reasonable. A mistaken belief or one that is factually inaccurate can
nevertheless be reasonable, unless the information is
so inaccurate
that no one can have any interest in its disclosure. (
See
also the statement in
Babula
(
supra
)
at para 41 where it was held that:
‘
Darnton
16
seems to me clear authority for the
proposition that whilst an employee claiming the protection of ERA
1996,
section 43(1)
must have a reasonable belief that the
information he is disclosing tends to show one of more of the matters
listed in
section 43B(1)(a)
to (f), there is no requirement upon him
to demonstrate that his belief is factually correct; or, to put the
matter slightly differently,
his belief may still be reasonable even
though it turns out to be wrong.
)
If the primary or exclusive purpose of reporting is to embarrass or
harass the employer the reasonableness of the employee's belief
is
also questionable.
[37] With regard to good faith, I have
found the approach of the UK Appeal Court (Civil Division) apt and
worthy of consideration
by our courts. This was in the
Street
v Derbyshire
Unemployed
Workers’ Centre
,
17
matter where the Court stated:
‘
[41]
Shorn of context, the words “in good faith” have a core
meaning of honesty. Introduce context, and it calls for
further
elaboration. Thus in the context of a claim or representation, the
sole issue as to honesty may just turn on its truth.
But even where
the content of the statement is true or reasonably believed by its
maker to be true, an issue of honesty may still
creep in according to
whether it is made with sincerity of intention for which the Act
provides protection or for an ulterior and,
say, malicious, purpose.
The term is to be found in many statutory and common law contexts,
and because they are necessarily conditioned
by their context, it is
dangerous to apply judicial attempts at definition in one context to
that of another.”
[38] Viewed this way, the information
in the disclosure at issue does indeed tend to show that certain
conduct by the MEC and other
officials in the Department of Education
tended to show that something was amiss. It is true that some of the
allegations may have
amounted to speculation but this does not render
the disclosure unprotected. The appellants were not directly involved
in what
was taking place but observed conduct suggestive of foul
play. Consideration of their disclosure set out at the beginning of
this
judgment details a number of incidents and occurrences at the
instance of the MEC and other officials that at face value appeared
irregular. Their disclosure, in my view, sufficiently raised the red
flag regarding that conduct and the appellants, objectively
considered, were honestly calling for an investigation of those
matters. The investigation that was conducted in this matter was
a
non starter. It was superficial to say the least and blaming the
appellants for its failure to uncover anything is taking matters
rather too far. The investigators were appointed with wide ranging
powers but they elected to rush through the process to enable
them to
recommend that disciplinary action be instituted against the
appellants.
[39] Furthermore, from the evidence on
record, it cannot be inferred that the disclosure was motivated by
spite or malice on the
part of the appellants or that they sought to
embarrass the MEC thereby. It cannot also be said that they were
motivated by self
interest or were aware that the information they
alleged was false or fabricated. I also do not agree that their
refusal to participate
in the investigation showed their lack of good
faith. They were justified to adopt that stance after they were
threatened with
legal action by the employer on receipt of their
disclosure at a stage when no investigation had been initiated.
[40] I have no hesitation therefore to
find that that the Labour Court erred in interpreting the PDA
provisions in a narrow fashion
and in finding that the appellants had
not had the requisite reason to believe in making their disclosure
and that they had also
lacked good faith in doing so. In my
judgement, I find that the appellants made a disclosure that is
protected in terms of the
PDA. It is also common cause that they have
been subjected to an occupational detriment by being disciplined and
sanctioned on
account of having made the disclosure. The disciplinary
action instituted against the appellants and the sanction imposed
upon
them was unjustified and amounts to an occupational detriment.
It therefore amounts to an unfair labour practice as contemplated
in
section 186
of the LRA. The appellants have shown that they made a
protected disclosure, that their employer took action against them as
a
result thereof and that a causal link exists between the disclosure
and the retaliating action by the employer. Put differently,
the
detriment suffered by the appellants is clearly on account of, them
having made the protected disclosure. This must be redressed.
[41] By way of relief, it appears
justified to award the appellants full relief that restores the
status quo ante
between them and their employer which will go
a long way towards addressing the humiliation they suffered arising
from the occupational
detriment they suffered. Such relief is
justified in view of the fact that they blew the whistle on what was
at face value irregular
conduct by their employer and fellow
employees. The action taken against them was precipitate and totally
unjustified. The full
redress proposed is enough to express our
displeasure at how the appellants were treated. It should also send a
clear message to
other employers that this court will not hesitate to
come to the aid of employees who blow the whistle on unlawful and
irregular
conduct. It is also justifiable under the circumstances to
award the appellants costs.
[42] In the circumstances, the appeal
succeeds and the following order is granted:
The order of the Labour
Court dated 17 February 2009 is set aside and in its stead the
following order is granted:
“
The
applicants are reinstated to the positions they held before their
demotion and suspension respectively.
Such reinstatement
shall be retrospective from the date of this order to the date of
their demotion and suspension respectively
including such
remuneration and all benefits they would have been entitled to but
for their demotions and/or suspension respectively.
The respondents are
ordered to pay the applicants costs including the costs occasioned
by the employment of senior counsel.”
The respondents are
ordered to pay the appellants’ costs including the costs
occasioned by the employment of senior counsel.
________________
Mlambo JP
Jappie JA and Van Zyl AJA concur in
the judgment of Mlambo JP.
APPEARANCES:
FOR THE APPELLANTS: Advocate Woudstra
SC
Instructed by Henning Viljoen
Attorneys
FOR THE RESPONDENTS: Advocate Tim
Bruinders SC
Instructed by State Attorneys
1
Act
26 of 2000.
2
Ms
Naledi Pandor.
3
Act
76 of 1998 as amended.
4
‘
Charge
1
:
You
have contravened Section 18 (1) (dd) of the Employment Educators Act
76 of 1998 in that on the 9
th
December 2005 and at Welkom, you committed a common law or statutory
offence namely
crimen
iniuria
by
publishing and/or communicating defamatory statements in respect of
the MEC for Education (Free State), the Chief Financial
Officer and
the Lejweleputswa District Director (Department of Education), to
the effect
inter
alia
that either and/or all of the mentioned were guilty of nepotism,
favouritism, corruption and/or acts or practices which resulted
in
fruitless expenditure
.
First
alternative, Charge 1: you have contravened
Section 18(1)
(q) of the
Employment of Educators Act 76 of 1998
in that on the 9
th
December
2005 and at Welkom, you conducted yourself in an improper,
disgraceful or unacceptable manner when you published and/or
communicating defamatory statements in respect of the MEC for
Education (Free State), the Chief Financial Officer and the
Lejweleputswa
District Director (Department of Education), to the
effect
inter
alia
that either and/or all of the mentioned were guilty of nepotism,
favouritism, corruption and/or acts or practices which resulted
in
fruitless expenditure.
Second alternative to
Charge 1, you have contravened
Section 18(1)(f)
of the
Employment of
Educators Act 76 of 1998
in that on the 9
th
December 2005
and at Welkom, you unjustifiably prejudiced the administration,
discipline or efficiency of the Lejweleputswa District
Director or
the Department of Education when you published and/or communicating
defamatory statements in respect of the MEC for
Education (Free
State), the Chief Financial Officer and the Lejweleputswa District
Director (Department of Education), to the
effect
inter alia
that either and/or all of the mentioned were guilty of nepotism,
favouritism, corruption and/or acts or practices which resulted
in
fruitless expenditure.’
5
Act
66 of 1995, as amended.
6
Section
2.
7
It
is unclear why the Labour Court did not find that Radebe had
correctly referred the disclosure as in terms of its reason based
on
the EEA it found that the Superintentendent General was her
employer.
8
Section
1 of the PDA.
9
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
(2008)
29 ILJ 2507 (CC) at para 34;
Republican Press (Pty) Ltd v
CEPPWAWU and Others
at para 19; See also
Jaga v Dönges
NO and Another; Bhana v Dönges NO and Another
1950 (4) SA
653
(A) at 662.
10
1997(4)
SA 613 (SCA) at 632G -H.
11
1977
(1) SA 665
(A) at 680.
12
[2007]
ICR 1026
,
[2007] IRLR 346
,
[2007] EWCA Civ 174.
13
Darnton
v University of Surrey
[2002] UKEAT 882_01_1112
;
[2003] IRLR 133
(EAT) at 1780E-F.
14
Communication
Workers Union v Mobile Telephone Network (Pty) Ltd
(2003)
24 ILJ 1670 (LC) at para 21.
15
(2010)
31 ILJ 322 (SCA) at para 42.
16
Darnton
v The University of Surrey
above n14.
17
[2004]
EWCA Civ 964
;
[2005] ICR 97
;
[2004] 4 ALL ER 839
at 41.