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[2013] ZALCJHB 22
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Xakaza v Ekurhuleni Metropolitan Municipality and Others (JS 281/11) [2013] ZALCJHB 22; [2013] 7 BLLR 731 (LC) (21 February 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 281/11
In the matter between:
XAKAZA TEMBA
.......................................................................................................
Applicant
and
EKURHULENI
METROPOLITAN MUNICIPALITY
......................................
First Respondent
NOLAN DARIAN
.....................................................................................
Second
Respondent
ZEBEDIELA JACK
......................................................................................
Third
Respondent
Heard: 15 November
2012
Delivered: 21 February
2013
Summary: Protected
Disclosures Act – applicant seeking a final order that he
suffered occupational detriment – disputes
of fact –
court considering averments on affidavits and finding no occupational
detriment suffered.
___________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
The
applicant seeks a final order declaring that he suffered
occupational detriment at the hands of the first respondent in terms
of the Protected Disclosures Act,
1
(‘the
PDA’).
He alleges that he was
subjected to various unfair labour practises and disciplinary action
as a result of certain disclosures
that he made during the course of
his duties with the first respondent.
The applicant had sought
to interdict the first respondent from instituting disciplinary
proceedings against him pending finalisation
of this application.
That application was struck from the roll for lack of urgency
per
Van Niekerk J’s order of 17 August 2011.
At the hearing of this
application, I was advised by the parties that the disciplinary
hearing instituted by the first respondent
against the applicant had
been finalised and the parties were awaiting the outcome. That
hearing was apparently held before an
independent chairperson, who
has been cited as a second respondent in these proceedings. The
second respondent has filed a notice
that she will abide by the
decision of this court. It seemed bizarre to me that the parties
would still require this application
to proceed in light of a
pending outcome of the disciplinary inquiry. Nevertheless they chose
to do so.
Before the hearing of
this application, the applicant brought an application for
condonation for the late filing of the replying
affidavit.
Having considered
submissions from both parties, I allowed the replying affidavit
striking off certain paragraphs which I considered
prejudicial to
the applicant. My reasons for doing so are on record and I will
therefore not repeat those in this judgment.
The first respondent has
raised two points
in limine
including the fact that this
application contains wide ranging disputes of fact. I will deal with
those later on in the judgement.
Facts
The applicant had been
employed by the first respondent as an area development planner
since 1 July 2006.
During 2008, the first
respondent commissioned an independent audit company, PASCO Risk
Management (Pty) Ltd (‘PASCO’)
to investigate various
irregularities concerning the alienation of land that previously
belonged to the first respondent.
In 2004 the first
respondent had concluded a land-swap deal with Hometalk Developments
(Pty) Ltd (‘the developer’).
Concerns were raised that
the land offered by the first respondent was of greater value than
what was offered by the developer
and that there was corruption
involved.
PASCO prepared various
reports and found evidence of possible involvement by councillors of
the first respondent.
The applicant alleges
that in the execution of his duties as the area development planner
he became aware of certain irregularities
pertaining to the
establishment of a township, Meyersdal Nature Estate (‘MNE’)
Extensions 7 to 12.
According
to the applicant the PASCO investigation report revealed amongst
others a
prima
facie
case
of corruption, fraud, circumvention of the law and conflicts of
interest committed by the officials of the first respondent
in the
handling of the MNE Extensions 7 to 12 disposal and development of
land.
The applicant states
that he made disclosures of impropriety during the interview and by
means of an affidavit allegedly attached
to the investigation report
to PASCO. He contends that he disclosed that the township
establishment application for MNE Extension
7 was not ready for the
issuing of the section 101 certificate.
Section
101 of the Town Planning and Townships Ordinance
2
entitles
the Registrar of Deeds
3
(‘the
Registrar’) to endorse or register plans and diagrams with the
relative title deeds lodged by an applicant provided
that he shall
not accept such documents for endorsement or registration until such
time as he is advised by the authorised local
authority
4
that
an applicant has complied with such conditions as the local
authority may require to be fulfilled.
That certificate
according to the applicant was issued with the Registrar having been
misled that the applications were compliant.
The
applicant also alleges that a section 82 certificate
5
was
also issued contrary to the provisions of the Ordinance. He states
that the process followed towards the conclusion of the
agreement
with the developer was not recognised by the Ordinance and the
issuance of the section 82 certificate was misleading
to the
Registrar.
Section 82 prohibits
registration of certain deeds of transfer by the Registrar and in
particular section 82 (1) (ii) (cc) requires
a local authority to
certify that it will within 3 months of the date of the certificate
be able to provide the
erf
with such services as it may deem
necessary.
The applicant alleges
that he disclosed that Councillor Leon Von Ronge (‘Von Ronge’)
arranged a meeting upon which
the section 101 certificate was to be
issued regardless of the fact that the township establishment
application for MNE 7 to
12 did not comply with provisions related
to the issuance of the section 101 certificate.
According to the
applicant, Von Ronge proposed (in the presence of other officials of
the first respondent) that the section 101
certificate be issued
subject to compliance with conditions of Gauteng Department
Agriculture Conservation and Environment (GDACE)
and the provision
of access over
erf
32 MNE Extension 4. This was to be
effected by means of an agreement. He submits that this process was
not recognised by the
Ordinance and thus irregular.
The applicant also
alleges that even despite PASCO recommendations, the first
respondent’s officials went ahead and concluded
an agreement
with the developer.
The applicant raised an
issue about a discrepancy between what was advertised and what was
applied for. He claims that he re-iterated
his submission at the
meeting of October 2009.
The applicant argues
that he suffered various occupational detriments as a result of the
disclosures made to PASCO. He alleges
that since April 2009, various
actions were taken against him which were:
In May 2009 and
approximately three days after he refused to follow instructions
which he deemed to be unlawful, he was served
with a notice
transferring him to another customer care centre within the first
respondent. The reasons given were that the transfer
was operational
and intended to boost customer service. The decision was challenged
by SAMWU and the intention to transfer him
was abandoned by the
first respondent.
In September 2009, Peta
Mashinini (‘Mashinini’) issued an instruction that files
be removed from the administration
of the applicant. The decision
was challenged by SAMWU and files remained with him.
On 20 October 2009, the
applicant was subjected to a disciplinary hearing for alleged
insubordination in respect of MNE Extension
7 to 12 but later
abandoned;
On 5 February 2010, the
applicant was suspended.
In April 2010, he was
served with disciplinary charges and subjected to disciplinary
action based on alleged investigation between
August and September
2009.
On 06 and 07 May 2010,
the applicant was denied access to his office.
On 10 May 2010, the
applicant was served with a letter extending his suspension. Once
again the applicant submits that the court
is not called upon to
pronounce on the decision to extend his suspension.
On 11 February 2010, the
applicant was refused participation in certain processes related to
promotion.
On 07 February 2011, the
first respondent made a presentation that it sought to add to the
charges. He was yet to be served with
those additional charges.
The first respondent’s
response to these allegations is that the MNE report that the
applicant seems to be relying on is
hearsay or irrelevant for the
purposes of the applicant’s case unless he could demonstrate
that the report contained information
supplied by him to PASCO.
According to the first
respondent, subsequent to PASCO’s report it refused to issue
the section 82 certificate. The developer
however lodged a court
application in the North Gauteng High Court compelling it to do so.
A counter-application was lodged by
the first respondent for an
order setting aside the land swap deal and taking re-transfer of the
land. The High Court ordered
the developers to institute proceedings
before a Services Appeal Board. The Special Appeal Board made it
clear that sections
82 and 101 Certificate had to be issued. The
first respondent and the developer accordingly concluded an
agreement, which amongst
others provided for the issuance of the
section 82 certificate and the first respondent’s right to
seek a greater purchase
price. This agreement was made an order of
the Appeal Board. The first respondent became compelled to issue the
section 82 certificate.
The person that was
responsible to process the applications for the section 82
certificates was the applicant. The applicant refused
to comply with
the instructions to facilitate these certificates. He did everything
in his power to prevent the issuance of the
section 82 certificate.
The consequence of that
was that the section 82 certificates were not issued. Frustrated by
this, the developer instituted legal
action against the first
respondent to the tune of over 67 million.
The applicant still
refused to co-operate. The first respondent attempted to transfer
him to another section within the first
respondent but when it
failed to do so it suspended him and instituted legal action against
him.
Whilst the applicant was
absent from office, new information ensued that he had committed
various other acts of misconduct. These
were allegations of
moonlighting as a town planner without permission, failure to
disclose his relationship with a potential
contractor with the first
respondent, purporting to act as an Area Manager when he was not,
causing advertisements to be placed
in which he described himself as
an Area Manager, manipulating certain town-planning documents
submitted by developers resulting
in unnecessary delays in the
processing of township developments.
The first respondent
preferred additional charges against the applicant in relation to
these additional allegations.
Other important factors
raised by the first respondent are that on 18 March 2009, the GDACE
addressed a letter to the applicant
wherein it stated that the
Department could not prescribe to the first respondent on the course
of action that it should to take.
However it warned that cognisance
must be taken to the fact that once the relevant certificates were
issued prior to full compliance
with the ROD, there was a
possibility that the conditions contained in the ROD may never be
implemented/enforceable against the
holder of the authorisation.
On 25 March 2009, Deon
Oosthuizen (‘Oosthuizen’) who had been appointed by the
GDACE as Environment Control Officer
addressed a letter to Afropulse
in which he stated that all specifications and requirements of the
Environmental Management Plan
and ROD had been complied with and
that he was not aware of any non-compliances (sic) or any formal
written complaints lodged
by GDACE to himself or the developer with
regards to this development.
The first respondent
also referred to a compliance monitoring report which stated that
all conditions stipulated in the ROD were
fully or partially
complied with and some conditions were ongoing and required ongoing
monitoring.
In regard to the
allegation by the applicant over the non-registration of the right
of way over servitude ERF 32, the first respondent
refers to a copy
of a Notarial Deed of Servitude which confirmed that the
erf
32 right of way servitude was registered.
The first respondent
denies that the Registrar was misled and states that in any event,
pre-establishment conditions are for the
benefit of the local
authority.
The first respondent
further denies that it did not comply with section 82. It submits
that section 82 is an injunction to the
Registrar. In terms of
paragraph (b) (ii), the local authority must provide the Registrar
of Deeds with certain information before
the Registrar may register
a deed of transfer by which ownership in a township is transferred
once the township is proclaimed
an approved township in terms of
section 79 of the ordinance. The object of section 82 (for present
purposes) is to ensure that
members of the public are not deceived
into purchasing erven in a township only to discover that the local
authority cannot provide
their properties with municipality
services.
The first respondent
contends that this issue was dealt with in the legal opinion and a
practical solution offered on how the
issue could be overcome,
(which was that there was servitude of right of way to the property
which could give access to Extension
7).
The first respondent
contends that MNE Extension 7 and MNE Extensions 7 to 12 were the
same piece. The applicant knew about this
and in fact the report
reveals that he advised PASCO as such. MNE Extension 7 was further
divided into six parts. The first respondent
contends that section
99 of the ordinance provides that once a township establishment has
been approved, the developer may within
four months of approval
apply for the further division of the township in two or more
townships. Accordingly, a division of MNE
into six townships was not
irregular and that the developers paid for the division.
The first respondent
further contends that whilst it took cognisance of the applicant’s
view at various stages. His view
was found to be incorrect.
The first respondent
alleges further that the applicant has not established all the
requirements of the PDA in that he has not
clearly demonstrated
which disclosures were made to PASCO.
Insofar as those made to
the first respondent, those constituted a mere expression of opinion
and an indication that he refused
to comply with instructions
contrary to his opinion.
Further he has not been
able to demonstrate the applicability of the PDA because he failed
to demonstrate that he had reason to
believe that the information
contained in the disclosure was substantially true. The employee’s
disclosure ought not to
be protected purely based on the employee’s
subjective belief that the information showed impropriety. The
belief must
be reasonable and it can only be reasonable if there was
a factual basis for the belief that the information revealed
impropriety
which according to the first respondent the applicant
did not do.
The first respondent
alleges that the applicants view on the issuance of the sections 101
and 82 certificates was incorrect and
that the applicant’s
conduct was motivated by malice.
Evaluation
The
first point
in
limine raised by the
first
respondent is that the matter was not referred to the bargaining
council having jurisdiction for conciliation as contemplated
by
section 191(1) of the Labour Relations Act
6
(‘the
LRA’).
Having
perused the papers, I am satisfied that the matter was properly
conciliated and thereby in compliance with the provisions
of section
191 of the LRA relating to referral of disputes for conciliation.
The certificate attached to the replying affidavit
records that the
matter relates to section 186(2) (d)
7
.
That section deals with ‘
an
occupational detriment, other than dismissal, in contravention of
the Protected Disclosures Act, 2000 (Act No. 26 of 2000),
on account
of the employee having made a protected disclosure defined in that
Act.’
Accordingly, the court
has jurisdiction to determine this application.
On the dispute of fact
point the first respondent submits that the papers before this court
contain wide ranging disputes of fact,
all which should have been
foreseen. The first respondent argues that motion proceedings are
generally not designed to determine
probabilities.
It is clear that there
are disputes of fact in this case and motion proceedings should not
have been used for this kind of case
in my view. The applicant has
nevertheless chosen this route and expects this court to make a
final conclusion in motion proceedings.
In a decision of the
National
Director of Public Prosecutions v Zuma
,
8
Harms DP said the
following:
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise in the
affidavits, a final order can be granted only if the facts averred
in
the applicant’s (Mr Zuma’s) affidavits, which have been
admitted by the respondent (NDPP), together with the facts
alleged by
the latter, justifies such order.
It
may be different if the respondent’s version consists of bald
or uncreditworthy denials, raises fictitious disputes of
fact, is
palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the
papers…’
(own
emphasis)
Mr
Hulley argued that the
Plascon-
Evans
9
rule
applies regardless who bears the onus. I agree with this
proposition. This much was found by Harms DP in the
National
Director of Public Prosecution
10
case
referred to above, when he remarked:
‘
In motion
proceedings the question of onus does not arise and the approach set
out in the preceding paragraph governs irrespective
of where the
legal or evidential onus lies.’
11
Whilst there are
disputes of fact it is clear that the crisp issue in this case
revolves around the applicant’s interpretation
of sections 82
and 101 of the Ordinance, which ultimately is a legal issue. These
are the provisions of the Ordinance which the
applicant alleges were
infringed.
In order to satisfy the
Court that the applicant deserves protection in terms of the PDA,
the applicant must show the following
factors:
That he is an employee;
He had reason to believe
that the information in his possession fell 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;
That he made the
disclosure in good faith;
If there is a prescribed
procedure or a procedure authorised by the employer, that he
substantially complied with that procedure.
If there is no such
procedure, then the disclosure must be made to the employer;
And
finally that there was a link or nexus between the disclosure and
the detriment.
12
It
is not disputed that the applicant is an employee of the first
respondent. It is also not disputed that the applicant was suspended
and subjected to a disciplinary hearing. What is in dispute however
that is the applicant was subjected to an occupational detriment.
13
It
is disputed that he disclosed any information warranting protection
in terms of the PDA.
In the first instance it
is not clear what disclosure was made to PASCO by the applicant. The
applicant’s papers contain
a lot of information but lack
detail on the crisp issues to satisfy the requirements of the PDA. I
agree with the first respondent
that it is not enough to simply
annex a document in an affidavit. Particular reference must be made
as to which portions of the
document one is relying on. This did not
happen in this case. Much of the information in the founding
affidavit is irrelevant
or lacks specificity. The applicant
attempted to crystallise the disclosures he was referring to in his
replying affidavit. In
my view this did not help much either.
Ultimately the applicant was not able to show that the PASCO reports
contained information
supplied by him to PASCO.
In any event the PASCO
reports cannot form the basis of the applicant’s beliefs as
his beliefs seem to precede the reports.
In my view the first
respondent has been able to show that the information contained in
the reports was known to it and therefore
could not constitute
disclosure. Various individuals within the first respondent were
interviewed and they gave information,
which pointed to certain
irregularities. Notably, those individuals were not disciplined.
Another important factor
is that the first respondent refused to issue the section 82
certificate arising out of the PASCO reports
until it was taken to
court by the developer, which culminated to an agreement that
safeguarded the position of the first respondent.
To suggest the
certificates were issued with Registrar having been misled seems to
be far-fetched. Further the applicant has
not clear as to which
specific provisions of the section 82 were infringed.
To the extent that the
applicant was unhappy he exhausted a number of avenues all of which
did not see any wrong doing on the
part of the first respondent
insofar as the issuance of the certificate was concerned.
In any event section 82
of the Ordinance prohibits registration of deed of transfer if
certain conditions are not met. This provision
is directed to the
Registrar and not to the local authority. The local authority is the
one that may
deem it necessary
to certify in terms of section
82 (1) (b) (ii) (cc) that it will be able to provide such services.
Further, the GDACE
provided a positive ROD confirming that it was satisfied that the
local authority could proceed with the application
for the
development of the township. The Council approved the establishment
of the township MNS Extension 7 to 12 and the conditions
imposed by
the ROD were attached to the resolution of the Council and paragraph
1.2.5 stipulates that those conditions must be
adhered to.
Turning to section 101
of the Ordinance, again this provision requires the Registrar not to
accept documents for endorsement or
registration until such time
that he is advised by the authorised local authority that the
applicant has complied with such conditions
as the local authority
may require to be fulfilled.
The applicant alleges
that the conditions he is referring to are GDACE requirements. The
first respondent has made a number of
compelling submissions which
seem to make a lot of sense to me, in response to this. One is that
the GDACE are not conditions
that are a prerequisite before township
is established, because they are environmental in nature. These are
not specifically
prescribed by a local authority as section 101
requires. Secondly, an ROD was obtained and the conditions imposed
by the first
respondent were attached to the resolution adopted by
the Council of the first respondent. Some of these conditions were
ongoing
and concerns raised by PASCO were dealt with in the
agreement with the developer. The environmental control officer
appointed
by the GDACE confirmed that all specifications were
fulfilled and he had no knowledge of any non-compliance.
The requirements in
section 101 are clearly for the benefit of the local authority
alone. Conditions stipulated by a person other
than a local
authority are thus not conditions contemplated in section 101.
I fail to find any
disclosed information that either discloses or tends to disclose
some form of criminal or other misconduct
as contemplated in the
PDA.
I also find no link
between the alleged disclosure and the detriment. The first
respondent in my view has shown that charges against
the applicant
are genuine.
It alleged that the
applicant was responsible to facilitate the process of issuing
certificates his alleged resistance to obey
the instructions
therefore did provide a basis for the charges. Other charges such as
moonlighting without permission, failing
to disclose his
relationship with a contractor, signing official documents in the
capacity as an area manager whilst he is not
and placing
advertisements as such all do appear to be genuine and unrelated to
the alleged disclosures.
It is also important to
take into account that a number of employees who had made
submissions to PASCO were not disciplined. The
applicant has not
shown any reason why he would be singled out.
Lastly the applicant has
not shown that he had reason to believe that the information
contained in the disclosure was substantially
true.
14
His belief was proven to
be factually and legally incorrect a number of times and he was made
aware of that. In
Tshitshonga v Minister of Justice and
Constitutional Development and Another
15
Pillay J held that:
‘
Whether
the belief is reasonable is a finding of fact based on what is
believed. Thus, if the employer clearly has no obligation,
the
employee’s belief that he does cannot be reasonable.’
16
Whilst the employee’s
belief is subjective it must be reasonable. For the belief to be
held reasonable there must be a factual
basis for believing that the
information discloses impropriety. In this case the applicant did
not demonstrate that.
I therefore find that
the applicant has not been able to show that he suffered an
occupational detriment warranting protection
in terms of the PDA.
I am not persuaded costs
on attorney and client are warranted in this case as the first
respondent suggests. Costs will therefore
remain on party and party
scale.
In the result, I make
the following order:
The applicant’s
application is dismissed with costs.
__________________
Boqwana AJ
Acting Judge of the
Labour Court
APPEARANCES:
For the applicants:
Advocate H M Viljoen
Instructed by: B J Kruger
Inc. Pretoria
For the first respondent:
Advocate G I Hulley
Instructed by: Tshiqi
Zebediela Inc., Kempton Park
1
Act
No. 26 of
2000.
2
Act
No.15
of 1986
3
Appointed
in terms of the Deeds Registry Act 47 of 1937
4
Means
a local authority declared as authorised local authority in terms of
section 2 of Act 15 of 1986
5
Of
Act No.15 of 1986 supra
6
Act
No. 66 of 1995.
7
Of
the LRA
8
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at para 26.
9
[1984] ZASCA 51
;
1984
(3) SA 623
at 634H-635C.
10
ibid.
11
National
Director of Public Prosecution v Zuma
supra at para 27. Also see
Ngqumba v
Staatspresident; Damons NO v Staatspresident; Jooste v
Staatspresident
1988
(4) SA 224 (A).
12
See
Independent Municipal and Allied Trade
Union obo Ngxila-Radebe v Ekurhuleni Metropolitan Municipality and
Another
(J1029/2010)
[2010] ZALC
289
(1 July 2010) at para 23.
13
An
occupational detriment is defined as
‘
(a)
being
subjected to any disciplinary action;
(b)
being
dismissed, suspended, demoted, harassed or intimidated;
(c)
being
transferred
against
his or her will;
(d)
being
refused transfer or promotion;
(e)
being
subjected to a term or condition of employment or retirement which
is altered or kept altered to his or her disadvantage;
(f)
being
refused a reference, or being provided with an adverse reference,
from his or her
employer
;
(g)
being
denied appointment to any employment, profession or office;
(h)
being
threatened with any of the actions referred to paragraphs
(a)
to
(g)
above;
or
(i)
being
otherwise adversely affected in respect of his or her employment,
profession or office, including employment opportunities
and work
security.’
14
Section
9 of the PDA
15
(2007)
28 ILJ 195 (LC).
16
Tshitsonga
supra
at 185. An English case of
Kraus v Penna PLC and
Another
[2003] UKEAT 0360_03_2011
;
(2004) IRLR 260
(EAT) at para 29, is also on point on
this issue. In that case the court held: ‘if the employers are
under no obligation,
as a matter of law, a worker cannot claim the
protection of this legislation by claim in that he reasonably
believed that they
were.