Independent Municipal and Allied Trade Union obo Ngxila-Radebe v Ekurhuleni Metropolitan Municipality and Another (J1029/2010) [2010] ZALCJHB 377 (18 June 2010)

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[2010] ZALCJHB 377
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Independent Municipal and Allied Trade Union obo Ngxila-Radebe v Ekurhuleni Metropolitan Municipality and Another (J1029/2010) [2010] ZALCJHB 377 (18 June 2010)

IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT BRAAMFONTEIN)
CASE
NO: J1029/2010
In
the matter between:
THE
INDEPENDENT MUNICIPAL AND ALLIED
TRADE
UNION obo GLORIA
NGXILA-RADEBE
......................................................
APPLICANT
And
EKURHULENI
METROPOLITAN MUNICIPALITY
......................................
1
ST
RESPONDENT
ADV
N. CASSIM
S.C
.............................................................................................
2
ND
RESPONDENT
JUDGMENT
AC
BASSON, J
Nature
of the application
[1]
This is an urgent application in terms of section 158 (1)(a) of the
Labour Relations Act 66 of 1995 (“the LRA”).
The
applicant, IMATU obo Ms Gloria Ngxila-Radebe (hereinafter referred to
as “the applicant”), seeks an order declaring
that the
disciplinary hearing conducted against the applicant to be an
occupational detriment as contemplated by the Protected
Disclosures
Act No 26 of 2000 (hereinafter referred to as “the PDA). In
addition, an order is sought in terms of which the
1
st
Respondent (the Ekhuruleni Metropolitan Municipality (hereinafter
referred to as “the respondent”) is interdicted from

subjecting the applicant to any occupational detriment or unfair
labour practice on account of, or partly on account of, having
made
certain disclosures relating to the conclusion and payment of certain
installments in respect of a contract that was concluded
by an
employee on behalf of the respondent with Microsoft. (I will return
to the details of the contract hereinbelow.)
[2]
In the Notice of Motion, application is made for final relief.
However, during argument the applicant sought in the alternative
that
an interim interdict be granted pending the finalization of
proceedings to be instituted in terms of the LRA. (I will return
to
the question whether or not the Court should grant final relief in
these circumstances hereinbelow.)
[3]
The application is opposed by the respondent on the basis that the
applicant did not satisfy the legal requirements for the
relief under
the PDA and, in particular, on the basis that the applicant has not
demonstrated a clear right for the relief sought.
[4]
Most of the facts are common cause. It was, in particular common
cause that the applicant had made certain disclosures about
the fact
that the contract that was concluded with Microsoft was unauthorized
and that when an application for condonation for
the conclusion of
the contract with Microsoft was thereafter made to the Council (after
it was acknowledged that no authority was
obtained prior to
concluding the contract), that
that
application did not
disclose certain crucial facts to the Council. (I will return to this
issue hereinbelow.)
Brief
exposition of the facts
[5]
The applicant is employed by the respondent as a manager of
contracts. She is currently being subjected to disciplinary
proceedings
before an external independent chairperson (the 2
nd
respondent).
[6]
The disciplinary hearing against the applicant has already commenced
on 30 April 2010 and certain evidence has already been
led by the
respondent in the absence of the employee or her representatives. (I
will return to the charges and the evidence that
has already been
lead hereinbelow.)
The
contract with Microsoft
[7]
The charges brought against the applicant arise from the following
facts: In 2005 Mr. Collin Pillay (hereinafter referred to
as “Pillay”
- the then Executive Director of Information Communication Technology
of the respondent) concluded a contract
on behalf of the respondent
with Microsoft Ireland Operations Limited. The contract sum was
R
13 371 466.37
. It is common cause that Pillay did not have
authority to conclude the contract and that no procurement process
was followed. The
effective date of the contract was 1 January 2008
and payment was to be done in three equal annual installments.
Microsoft
would invoice the respondent in three equal annual
installments.
[8]
The applicant disclosed the fact that the conclusion of the contract
was unauthorized to the then Acting Executive Director:
ITC (Ms
Mathabathe) and then to Mr. Ngwenya who acted in Pillay’s
position.
[9]
As a consequence, Mathabathe applied on 6 February 2006 to the
Council for the condonation of the action of concluding the contract

to the amount of R 13 371 466.37.
[10]
On 9 February 2006 the Executive Mayor authorised (and therefore
condoned) the conclusion of the contract concluded between
Microsoft
and Pillay on behalf of the respondent.
[11]
It is common cause that Mathabathe did
not
disclose all the
relevant facts in the condonation application to the Council in which
she sought authority for the conclusion
of the contract with
Microsoft. Mathabathe was subsequently dismissed,
inter alia,
for her failure to do so. This application to the Council for
condonation did not disclose the fact that three annual payments
had
to be made to Microsoft and that the contract sum would consequently
be subject to exchange fluctuations between the Rand and
US Dollar
(which would have affected the payments). The fact that VAT was to be
added to this amount was also not disclosed to
the Council.
[12]
The first two payments were done on time namely in March 2006 and
November 2007. The third payment was due in 2008.
[13]
Payments to Microsoft were made by a Government established company
SITA. The respondent made payment to SITA.
[14]
The amount that became payable as the third installment amounted to
R
8 504 023.08
. The amount that has already been paid up until that
date amounted to
R 11 556 502.97
. The authority that had been
obtained for the payment of all
three
installments amounted to
R 13 371 466.37
. The amount that had to be paid to Microsoft
therefore exceeded the amount which was authorised for payment.
[15]
It is common cause that on 7 April 2008 the applicant informed Mr.
Singh (the Executive Director ITC) that there was no authority
for
the payment of R 13 371 466.37 over the three years (in three
installments) and that there was no reference in the aforesaid

application for (retrospective) authority or in the resolution of
Council to the Rand/Dollar exchange increases and that the authority

for the payment in respect of the contract was therefore insufficient
for payment of the third installment. It is common cause
that the
applicant informed him that she could not be involved in such an
authorised payment. The applicant submitted that this
also
constituted a protected disclosure as contemplated by the PDA.
[16]
On 15 May 2009 Mathabathe certified the invoice for the third
installment. The amount was not paid as the documentation attached

thereto was questioned by a certain Mr, Nel.
[17]
On 17 June 2009 a meeting took place between SITA, the respondent
(represented by a Mr. Reis and a Mr. Renke) and Microsoft.
The
applicant attended although she was not invited. At that meeting the
applicant was informed that the respondent was also charged
for the
forward cover exchange taken out by SITA. The forward exchange cover
was authorised by Singh but was no authorised by the
respondent. The
applicant again stated that the unauthorized payments could not be
made and that approval was to be sought for
the payment thereof. She
also informed the meeting that the forward exchange cover agreement
was to be disclosed and that condonation
had to sought.
[18]
On 15 September the applicant found out about a memorandum that was
to serve before the Bid Evaluation Committee. The applicant
informed
the chairman thereof that the application was brought on incorrect or
misleading facts. The committee did not approve
the report.  The
applicant again argued that this constituted a protected disclosure
as contemplated by the PDA.
[19]
A further proper and correct application was made for condonation of
the authorised order and for payment of the unauthorized
sum of
money. The payment was eventually authorised on 26 November 2009.
[20]
It was submitted on behalf of the applicant that it was as a direct
result of her disclosures of the irregularities that she
has been
charged for delaying the third payment that was to be made to
Microsoft/SITA.
Disciplinary
proceedings against the applicant
[21]
As a result of the substantial losses, the respondent conducted an
investigation into conduct in relation to the Microsoft
contract and
the effective role of various employees’ involved the process.
According to the respondent, it became apparent
that the applicant’s
failure and refusal to address the issues that arose in respect of
the payment under the Microsoft contract,
contributed to the loss
suffered by the respondent. The applicant was thus charged for the
fact that the respondent incurred additional
costs as a result of
Microsoft’s/SITA’s invoice not having been paid
immediately upon receipt thereof. The said payment
was not made
timeously because, according to the respondent, the applicant had
disclosed the fact that there was no authority for
such payment and
when authority was sought for the payment, it was sought on the basis
of the incorrect contract and without disclosing
that part of the
amount consisted of forward cover penalties that became payable.
[22]
According to the respondent, the fact that the Rand/Dollar exchange
rate deteriorated significantly during the period of delay
in paying
the third installment, the respondent (and the tax payer) became
liable for an additional amount in excess of R 6 000
000.00 on the
capital sum owed to SITA. It is this extra amount which the
respondent had to pay as a result of the delay in obtaining
approval
for the amounts that were to be paid, that form the essence of the
charges against the applicant. The applicant is accused
of being
responsible (at least partly) for the delay in making the payment of
the third installment to SITA. In this regard the
respondent alleges
that had the employees (including the applicant) of the respondent
acted reasonably, payment could have been
made in 2008 or 2009. It is
further alleged that the delay (partly caused by the applicant) led
to the respondent (and consequently
the taxpayer) suffering
substantial losses.
[23]
For various reasons not directly relevant for purposes of this
application, the disciplinary process commenced before the second

respondent in the absence of the applicant and certain evidence was
led. (I will refer to some of the evidence hereinbelow in so
far as
it is relevant in arriving at a conclusion whether or not there is a
link or nexus between the protected disclosures (if
they were indeed
protected disclosures) and the charges for misconduct which led to
the disciplinary hearing.)
Charges
against the applicant
[24]
As already pointed out, the misconduct charges against the applicant
are based upon expenses incurred by the respondent as
a result of
exchange flections during the time it took to make payment of the
third installment of the contract that was concluded
between the
respondent and Microsoft. The delay in making the said payment is
alleged to have been caused by the applicant having
made complaints
relating first to the absence of authority for the payment and
secondly, when authority was sought her complaint
that misleading
facts were presented in the application to the Council for
condonation of the conclusion of the contract with Microsoft
which
necessitated another application for authority to be brought.
[25]
The respondent insisted that the applicant is facing charges of
misconduct
relating, in particular to delaying payments which
she should have timeously made and which delay has caused the
respondent a loss.
The applicant, on the other hand, insisted
that the misconduct charges are as a direct result of the disclosures
made by
her of the irregularities in respect of the conclusion of the
contract as well as the payments made in respect of the contract.
It
was therefore the applicant’s case that the disciplinary
hearing which she is now being subjected to is directly on account
of
or, at least partly on account of the disclosure that she had made of
the irregularities in concluding the agreement with Microsoft
and
thereafter attempting to provide payment to Microsoft without the
payment having been approved by the respondent.
[26]
The respondent argued that the applicant fundamentally misconstrues
the protection afforded to employees in terms of the PDA
and that she
is not being disciplined on account of having made any disclosure.
The respondent further points out that it should
be taken into
account that the applicant is not alleging that disciplinary
proceedings are brought against her as a reprisal for
having made a
protected disclosure. She, so it is argued, appears to be of the view
that the PDA provides a free pass for misconduct.
This, the
respondent argued, does not constitute a legitimate basis upon which
the applicant can claim the protection of the PDA.
The
respondent further argued that if the founding affidavit is properly
read, it should be clear that the applicant is making
out a case in
the papers as to why she is not guilty of the charges that have been
brought against her. This, the respondent argued,
is a case that
should be made out before the disciplinary hearing and, should she be
wrongly or unfairly found guilty in the disciplinary
hearings, she
may claim unfair dismissal under the provisions of the Labour
Relations Act 66 of 1995.
(i)
Firstly, I am in agreement with the submission that much of what is
contained in the founding affidavit relates to the reasons
why
the applicant is not guilty as charged. However, even if this is so,
the question which this Court must consider is not whether
or not the
applicant may have a defense against a charge of misconduct, but
whether or not the applicant should have been charged
in the first
place. In other words, the question which the Court must consider is
whether or not the applicant is being subjected
to an occupational
detriment by her employer on account of or partly on account of
having made a protected disclosure in terms
of section 3 of the PDA.
An occupational detriment includes “
being subjected to any
disciplinary action
” (section 1 of the PDA).
(ii)
Secondly, the mere fact that the applicant is not directly or overtly
charged with having made a disclosure is not fatal to
an application
in terms of the PDA. I should point out that I find it hard to
believe that an employer will overtly charge an employee
with having
made a protected disclosure. Moreover,  the protection granted
in terms of the PDA is not, in may view, limited
to disciplinary
proceedings where an employee is expressly charged with having made a
protected disclosure. Where an employee can
show a link or nexus
between the charges of misconduct leveled against her and the fact
that she has made certain disclosures,
she will be entitled to the
protection afforded by the PDA. See
Grieve v Denel (Pty) Ltd
(2003) 24 ILJ 551 (LC). In the latter case the applicant was also
not directly or expressly charged with making a disclosure. He
was
charged in relation to disclosures with misconduct arising from the
manner in which he obtained the information that led to
the
disclosures or the purpose to which the disclosures were to be used
(see paragraph [16]). In the present case the applicant
is also not
expressly charged with making disclosures. She is charged with the
delays which resulted from her having made disclosures.
The question
which this Court must answer is whether or not the applicant has
established a link between the charges which have
been brought
against her and the fact that she has made disclosures. I am also in
full agreement with my learned brother Cele,
J who said the following
in
David John Randles  v Chemical Specialties Ltd
(Case no: D42/2010 dated 5 February 2010) where he rejected the
contention that an employee must be charged with a
charge directly
related to the disclosures that were made:
“
[30]
Being subjected to “any disciplinary action” fulfils the
definition of an occupational detriment as contained in
Section 1 of
the PDA.   The respondent, however, seeks to persuade the
Court that their conduct cannot constitute an
occupational detriment
because the charges brought against the applicant are not directly
related to the disclosures made.
The contention is unsound, few
employers would be foolish enough to bring directly related charges
against a whistle-blower.
[31]
It is submitted that it is apparent from the above that the
respondent’s actions were clearly retaliatory measures to
the
disclosures made by the applicant. It is accordingly submitted that
the applicant’s disclosures are protected and the
charges
against the applicant are an occupational detriment in terms of the
PDA.”
(iii)
Thirdly, the applicant can merely decide to face the music and defend
herself against the charges leveled against her and,
if she is found
guilty, institute unfair dismissal proceedings in terms of the
provisions of the
Labour Relations Act 66 of 1995
. However, the
applicant can, in the alternative decide to approach this Court and
seek the relief provided for by the PDA. The
applicant cannot be
required to do both as they are incompatible with each other. See in
this regard:
David John Randles v Chemical Specialties Ltd
(case no: D42/2010 dated 5 February 2010 at paragraph [35] -[36]
where the Court held as follows:
“
[35]
Whether one categorises the issue as one of election or one of
estoppel, the outcome is the same. When the applicant was called
to
attend a disciplinary enquiry and to answer the charges (as amplified
from the original 2 charges with their alternatives),
he had two
choices, namely:
he
could seek relief under the PDA; or
he
could proceed with the disciplinary enquiry.
[36]
But he could not do both, as they are incompatible with each other.
Indeed, the relief contemplated by the PDA is designed
to stop or
prevent a disciplinary enquiry. Between the service of the “charges”
on him and 20 January 2010 the applicant
advised the respondent of
his intention on a number of occasions and took a number of steps to
pursue his rights in the disciplinary
enquiry. These are listed in
the chronology which is attached to these heads of argument. Pursuant
to the applicant’s representation
that he was taking steps to
participate in the disciplinary enquiry, the respondent prepared for
it, continued to prepare for it,
and incurred costs in doing so.”
[27]
The question is: Why should an employee face a disciplinary
hearing in circumstances where she should not have been charged in
the
first place? The aim of the PDA is to protect the whistleblower
and “
to promote the eradication of criminal and other
wrongful conduct in organs of state and private bodies”
.
(See for a detailed discussion of the aims of the PDA
Tshishonga v
Minister of Justice & Constitutional Development & Another
(2007) 28
ILJ
195 (LC).) The Court must therefore consider
whether or not the applicant deserves the protection afforded by the
PDA including
but not limited to whether or not a whistleblower
should be subjected to a disciplinary hearing. I am also in full
agreement with
the sentiments expressed by the Court in
Grieve v
Denel (supra
at paragraph [8]) where the Court pointed out that
the protection afforded by the PDA is designed to encourage a culture
of whistle-blowing.
This is clear from the pre-amble that the
describes the purposes of the PDA as to –
“
create
a culture which will facilitate the disclosure of information by
employees relating to criminal and other irregular conduct
in the
workplace in a responsible manner by providing comprehensive
statutory guidelines for the disclosure of such information
and
protection against any  reprisals as a result of such
disclosures”
.
[28]
Section 3
of the PDA reads as follows:
“
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.”
[29]
Section 6
and
9
of the PDA reads as follows:
“
6.
Protected disclosure to employer
(1)
Any disclosure made in good faith-
(a)
and substantially in accordance with any procedure prescribed, or
authorised by the employee's employer for reporting or otherwise

remedying the impropriety concerned; or
(b)
to the employer of the employee, where there is no procedure as
contemplated in paragraph (a),
is
a protected disclosure.
9.
General protected disclosure
(1) Any disclosure made in
good faith by an employee-
(a) who reasonably believes
that the information disclosed, and any allegation contained in it,
are substantially true; and
(b) who does not make the
disclosure for purposes of personal gain, excluding any reward
payable in terms of any law;
is a protected disclosure if-
(i) one or more of the
conditions referred to in subsection (2) apply; and
(ii) in all the circumstances
of the case, it is reasonable to make the disclosure.
(2)
The conditions referred to in subsection (1) (i) are-
(a)
that at the time the employee who makes the disclosure has reason to
believe that he or she will be subjected to an occupational
detriment
if he or she makes a disclosure to his or her employer in accordance
with
section 6
;
(b)
that, in a case where no person or body is prescribed for the
purposes of
section 8
in relation to the relevant impropriety, the
employee making the disclosure has reason to believe that it is
likely that evidence
relating to the impropriety will be concealed or
destroyed if he or she makes the disclosure to his or her employer;
(c)
that the employee making the disclosure has previously made a
disclosure of substantially the same information to-
(i)
his or her employer; or
(ii)
a person or body referred to in
section 8
,
in respect of
which no action was taken within a reasonable period after the
disclosure; or
(d)
that the impropriety is of an exceptionally serious nature.
(3)
In determining for the purposes of subsection (1) (ii) whether it is
reasonable for the employee to make the disclosure, consideration

must be given to-
(a)
the identity of the person to whom the disclosure is made;
(b)
the seriousness of the impropriety;
(c)
whether the impropriety is continuing or is likely to occur in the
future;
(d)
whether the disclosure is made in breach of a duty of confidentiality
of the employer towards any other person;
(e)
in a case falling within subsection (2) (c), any action which the
employer or the person or body to whom the disclosure was
made, has
taken, or might reasonably be expected to have taken, as a result of
the previous disclosure;
(f)
in a case falling within subsection (2) (c) (i), whether in making
the disclosure to the employer the employee complied with
any
procedure which was authorised by the employer; and
(g)
the public interest.
(4)
For the purposes of this section a subsequent disclosure may be
regarded as a disclosure of substantially the same information

referred to in subsection (2) (c) where such subsequent disclosure
extends to information concerning an action taken or not taken
by any
person as a result of the previous disclosure.”
[30]
The remedies provided to an employee is set out in
section 4(1)
and
(2) of the PDA which reads as follows:
“
(1)
Any employee who has been subjected, is subject or may be subjected,
to an occupational detriment in breach of
section 3
, may -
(a)
approach any court having jurisdiction, including the Labour Court
established by section 151 of the Labour Relations Act,
1995 (Act No.
66 of 1995), for appropriate relief; or
(b)
pursue any other process allowed or prescribed by any law.
(2)
for the purposes of the
Labour Relations Act, 1995
, including the
consideration of any matter emanating from this Act by the Labour
Court  -
(a)
any dismissal in breach of section 3 is deemed to be an
automatically unfair dismissal as contemplated in section 187 of that

Act, and the dispute about such a dismissal must follow the
procedure set out in Chapter VIII of that Act; and
(b)
any other occupational detriment in breach of section 3 is deemed to
be an unfair labour practice as contemplated in Part B
of Schedule 7
to that Act, and the dispute about such an unfair labour practice
must follow the procedure set out in that Part:
Provided that if the
matter fails to be  resolved through conciliation, it may be
referred to the Labour Court for adjudication.”
[31]
An applicant must satisfy a number of conditions before this Court
will extend protection to her for having made a (protected)

disclosure:
(i)
Firstly, the applicant must be an employee.
(ii)
Secondly, the applicant (the employee) must have reason to believe
that the information in her possession falls within the
definition of
a 'disclosure' in terms of section 1 of the PDA. The definition of
“disclosure” contemplates that the
employee must have
disclosed information that either discloses or tends to disclose some
form of criminal or other misconduct that
is the subject of
protection under the PDA which disclosure must be made in good faith
(see the next paragraph).
(iii)
Thirdly, the applicant must make the disclosure in good faith.
(iv)
Fourthly, if there is a prescribed procedure or a procedure
authorised by the employer, there must be substantial compliance
with
that procedure. If there is no such procedure, then the disclosure
must be made to the employer.
(v)
Finally, there must be some link or nexus between the disclosure and
the detriment (for example, being subjected to a disciplinary

enquiry).
[32]
I have pointed out that the applicant is seeking final interdictory
relief against the applicants. In the alternative, the
applicant is
seeking that an interim interdict be issued pending the finalization
of proceedings to be instituted in accordance
with the LRA. A dispute
has been referred to the South African Local Government Bargaining
Council and was set down for con-arb
for 8 June 2010. The dispute
was, however, withdrawn. I am of the view that a final order is not
competent and, at best, the applicant
may be entitled to an interim
order pending determination of the main dispute. In this regard I am
in agreement with the Court
in
Grieve v Denel
(
supa
)
where the Court held as follows:
“
[9]
The powers conferred upon this court are expressed in wide terms so
that any employee who has been subjected, is subject or
may be
subjected to an occupational detriment in breach of s 3 may approach
the Labour Court for appropriate relief.
Since conciliation
is a prerequisite before this court can grant final relief, in
matters of urgency where the occupational detriment
will occur unless
the employer is interdicted and restrained, 'appropriate relief' must
therefore include the power to grant an
interim interdict pending the
resolution of the underlying dispute.
The court only has
jurisdiction to determine the underlying dispute once the
conciliation process has run its course. This is nonetheless
the type
of case where the court clearly has the power to order the status quo
to be preserved or restored pending determination
of the main
dispute.
[10]
At common law a court's jurisdiction to entertain an application for
an interim interdict depends on whether it has jurisdiction
to
preserve or restore the status quo. It does not depend on whether it
has jurisdiction to decide the main dispute. Airoadexpress
(Pty) Ltd
v The Chairman, Local Road Transportation Board, Durban & others
[1986] ZASCA 6
;
1986 (2) SA 663
(A), National Gambling Board v Premier KwaZulu-Natal
& others  2002 (2)  F  SA 715 (CC) at 731B.
In
such a situation the court simply determines whether the applicant
has a prima facie right to the relief that is to be sought
in the
court having jurisdiction to deal with it. This court has accepted
that it has jurisdiction to grant interim interdicts
in circumstances
similar to those which arise in the present case (Venter v Automobile
Association of SA (2000) 21 ILJ 675 (LC)
at 677E-678B).
[11]
The test applied by a court when an interim interdict is sought is
well known. The applicant has to establish:
(a)
a clear right or a right prima facie established though open to some
doubt;
(b)
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is granted;
(d)
a balance of convenience in favour of the granting of interim
relief; and
(d)
the absence of any other satisfactory remedy.
Where
the applicant cannot show a clear right, and more particularly where
there are disputes of fact relevant to a determination
of the issue
as to whether the applicant's right is prima facie established though
open to some doubt, the court approaches the
matter by taking the
facts set out by the applicant together with any facts set out by the
respondent which the applicant cannot
dispute and considers whether
having regard to the inherent probabilities, the applicant should on
those facts obtain final relief
at the trial of the main action. The
facts set out in contradiction by the respondent should then be
considered and if serious
doubt is thrown upon the case of the
applicant he must fail, but if not then he has established the
requisite prima facie case
open to some doubt. (Webster v Mitchell
1948 (1) SA 1186
(W) at 1189-90 read with Gool v Minister of Justice
& another  B
1955 (2) SA 682
(C) at 687-8; Spur Steak
Ranches Ltd v Saddle Steak Ranch
1996 (3) SA 706
(C) at
714C-H.)”
[1]
[33]
The applicant argued that she is entitled to the relied in terms of
the PDA in that she has made a disclosure in terms of the
PDA which
disclosure is protected. She further alleged that she has suffered an
occupational detriment (the disciplinary proceedings)
as a result of
having made the protected disclosure.
[34]
At the outset I must point out that it is not disputed that the
disclosures that the applicant has made were disclosures as
defined
in the PDA. This concession was wisely made. It is clear from the
facts that if payment of the third installment had been
made without
it having been authorised (or on the basis of an authority which was
obtained on incorrect information) such payment
would have been
irregular and contrary to the legal obligation provided for in the
requirements of the Municipal Finance Act, 56
of 2003 which has as
its object to -
“
secure
sound and sustainable management of physical and financial affairs of
Municipalities and Municipal entities by establishing
norms and
standards and other requirements for  -
(a)
ensuring… accountability and appropriate lines of
responsibility in the physical and financial affairs of
Municipalities
and Municipal entities;
(b)
the management of their revenues, expenditures, assets and
liabilities and the handling of financial dealings;
(c)
budgetary and financial planning processes and the
coordination of those processes with the processes of organs of state
and other
spheres of Government.”
[35]
The disclosures were therefore in respect of a failure or likely
failure of a person to comply with a legal obligation in respect
of
an irregularity in contravention of the provisions of the Municipal
Finance Management Act.
[36]
A disclosure is only protected if it is made in good faith by an
employee who believes that the information disclosed is substantially

true and does not make the disclosure for personal gain (see sections
1, 6, 8 and 9 of the PDA).
[37]
The fact that the information disclosed by the applicant was correct
shows that the applicant had reason to believe that the
information
that she disclosed would show the aforementioned irregularities.
Moreover, payment was indeed only made
after
authority on the
correct facts had been sought and obtained in accordance with the
supply chain management system.  There is
no evidence that the
applicant did not make the disclosures to the employer in good faith.
There is no evidence that the applicant
made the disclosures for an
ulterior or malicious purpose (see
Street v Unemployed Workers’
Centre
[2004] EWCA Civ 964
;
[2004] 4 ALL ER 839
– referred to with approval in
Tshishonga
(supra)). There is also no evidence that the
disclosures were made with the intention to harass or discredit the
employer (see
Communication Workers’ Union v MTN
[2003]
8 BLLR 741
(LC) at [21]). In the present case the disclosures made by
the applicant had the desired effect namely that proper authority was

obtained for the payments. Lastly, an allegation is made that the
disclosures were made as a result of “bad blood”
between
the applicant and Mathabate. I am not persuaded that this was the
case. The respondent in any event does not dispute that
Mathabathe
withheld crucial information from the Council and that she was
subsequently dismissed by the respondent.
[38]
There is further no evidence that the disclosures were made in an
attempt to obtain a personal gain. I am not persuaded by
the
allegation that the applicant made the disclosures so as to draw
attention away from her own role in handling the contract
with
Microsoft. The fact remains, her disclosures ultimately led to the
contract and payments being properly authorized. The allegation
is
also made that the applicant did not aim to remedy the problems with
the Microsoft contract. I am also not persuaded by this
argument. The
applicant can hardly be blamed for the actions of Pillay (who had no
authority in the first place to conclude the
contract) and Mathabathe
(who withheld crucial information from the Council when condonation
and authority was sought for the first
time).
[39]
I have already referred to the fact that it is the respondent’s
argument that the applicant is not charged with having
made a
protected disclosure. She is, according to the respondent charged for
misconduct and that the mere fact that she has made
a protected
disclosure does not provide a free pass for whistle-blower’s
own misconduct. I have no quarrel in principle with
the argument that
the mere fact that a whistle-blower has made a protected disclosure
somehow renders her immune from prosecution
for her own misconduct.
This is not, and has never been the intention of the legislature in
enacting the PDA. I am not persuaded
that this is the case here. I
have already pointed out that the applicant can hardly be blamed for
the actions of Pillay and Mathabathe
whose actions caused the
respondent to follow a process to obtain the necessary authority.
[40]
Moreover, where an employee can show that there is a link or nexus
between the occupational detriment (by being, for example,
subjected
to a disciplinary hearing) and the charge (or charges) of misconduct,
the employee will be entitled to the protection
afforded by the PDA.
This is, after all the purpose of the PDA:
“
The
philosophy and purpose of the PDA
[166]
Internationally, there is growing recognition that whistleblowers
need protection. Whistleblowing is healthy for organizations.

Managers no longer have a monopolistic control over information. They
have to be alert to their actions being monitored and reported
on to
shareholders and the public. Everyone is alive to their loyalty to
the organization. As a safe alternative to silence, whistleblowing

deters abuse.
[167]
If employees did not turn a blind eye or were not afraid to rock the
boat and if employers did not turn a deaf ear or blame
the messenger
instead of heeding the message, many catastrophes could have been
averted.
[168]
Whistleblowers are not impipis, a derogatory term reserved for
apartheid era police spies. Whistleblowing is neither self-serving

nor socially reprehensible. In recent times its pejorative
connotation is increasingly replaced by openness and accountability.

Employees who seek to correct wrongdoing, to report practices and
products that may endanger society or resist instructions to
perform
illegal acts, render a valuable service to society and the employer.
Still, of 230 whistleblowers in the United Kingdom
and the USA, a
1999 survey found that 84% lost their jobs after informing their
employer of fraud, even though they were not party
to it.
[169]
Employees have a responsibility to disclose criminal and other
irregular conduct in the workplace. Public servants have an

obligation to report fraud, corruption, nepotism, maladministration
and other offences. A company can have a cause of action against
its
directors for failing in their duty to report wrongdoing.”
(
Tshishonga
(
supra.
)
[41]
I have referred to the fact that certain evidence has already been
led at the disciplinary hearing before the second respondent.
The
evidence led is instructive and supports, in my view, the contention
that the applicant is being subjected to disciplinary
action on
account of, or partly on account of, having made a protected
disclosure. Firstly, in giving evidence, Mr. Reis conceded
at the
disciplinary hearing that what the applicant did was what she had to
do. He stated the following:
“
The
question is that I did not understanding, me as a person, it is 100%
what she did because she was doing her duties.” (sic)
The
following evidence establishes, in my view, the link or nexus between
the disclosures and the charges:
“
The
Third Respondent, the problem is that she went running around and
telling everyone what was wrong. We must not pay
. We must
not pay. But the problem is Mr Chair, the problem was not because of
pay. When you owe money to someone you must pay it.
If there are
irregularities or something like that then you conduct a research or
you conduct an investigation in that regard.”
“
The
last installment of this contract.
The Third Respondent
started making a lot of noise in Council to say
, and I
did, I as the originator of that report that was now in – I
started running with that in June but I have got it in
my statement
here.” (sic)
“
So
I was trying to put a report through like three or four months period
and then she phoned goes to the Bid Evaluation Committee
and tries to
discredit the whole system.
She is making a noise and
everything. Every time the accusation that everyone got, everyone got
afraid of signing this thing because
they…”
“
And
she said that – I later learned – that she said that
these invoices were supposed to be paid a year before.”
[2]
[42]
I am, in light of the aforegoing, satisfied that the applicant has
established a link between the charges and the fact that
she had made
certain disclosures in respect of the Microsoft contract. The
evidence shows that the respondent is blaming the applicant
for the
delay, which delay was caused by the fact that she had made certain
disclosures which turned out to have a factual basis.
This, in my
view, is sufficient to establish a link that she is subjected to
disciplinary action on account of or partly on account
of having made
a protected disclosure.
[43]
I am in light of the aforegoing therefore persuaded that the
applicant has established a
prima facie
case open to some
doubt.
[44]
The respondent also contended that the applicant has an alternative
remedy available. This argument, however, loses sight of
the fact
that section 4 of the PDA affords an employee who is subjected to an
occupational detriment in breach of section 3 of
the PDA, the right
to approach any court having jurisdiction including the Labour Court.
Grogan
Workplace Law
10
th
edition page 85 similarly
states the following:
“
Apart
from the remedy afforded by Section 186(1)(d), employees may approach
the Labour Court or the High Court directly under the
PDA itself”.
[45]
I am furthermore persuaded that the applicant will suffer an
occupational detriment should she be subjected to a disciplinary

hearing and that she will suffer prejudice as a result thereof. In
this regard I am in agreement with the sentiments express by
the
Court in
Grieves v Denel
(
supra
) that there is
considerable prejudice to an employee in being faced with a
disciplinary enquiry (see paragraph [18]). In these
circumstances the
only remedy available to the applicant to protect her rights
conferred by section 3 of the PDA is to approach
this Court for an
interim order. I am also of the view that the balance of convenience
favours the applicant.
[46]
Lastly, an attempt was made in the papers to persuade this court that
the application was not urgent and that it constituted
an abuse of
the processes. I am not persuaded that the matter is not urgent. In
any event, the respondent insisted that the application
be brought on
an urgent basis. The second respondent ordered that the application
be brought in this court on or before 26 May
2010 and the
disciplinary hearing was postponed on that condition.
[47]
In the event the following order is made:
(1)
The first respondent is interdicted from proceeding with any
disciplinary action against the applicant on the charges as set
out
in the charge sheet against the applicant pending the outcome of a
dispute to be referred to the South African Local Government

Bargaining Council within ten days of the granting of this order, and
if the conciliation does not resolve the dispute, pending
the
adjudication of that dispute by the Labour Court.
(2)
The first respondent is directed to pay the costs of this
application.
_______________
AC
BASSON, J
Date
of hearing: 14 June 2010
Date
of the order: 18 June 2010
Date
of the reasons: …. July 2010
APPEARANCES
For
the applicant    : Advocate PHJ van Vuuren
Instructed
by           : Ac
Schmidt Inc
For
the respondent: Advocate MF Welz
Instructed
by           :
Bouman Gilfillan
[1]
Additional emphasis.
[2]
Additional emphasis.