Magagane v MTN South Africa (Pty) Ltd and Another ([2013] 8 BLLR 768 (LC); (2013) 34 ILJ 3252 (LC)) [2013] ZALCJHB 356; [2013] ZALCJHB 77 (17 May 2013)

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[2013] ZALCJHB 356
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Magagane v MTN South Africa (Pty) Ltd and Another ([2013] 8 BLLR 768 (LC); (2013) 34 ILJ 3252 (LC)) [2013] ZALCJHB 356; [2013] ZALCJHB 77 (17 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,JOHANNESBURG
JUDGMENT
Reportable
CASE NO: JS834/11
In the matter between:
MANKAKANE VIOLET MAGAGANE
...............................................................
Applicant
and
MTN SA (PTY) LTD
..............................................................................
First
Respondent
MTN GROUP MANAGEMENT SERVICES (PTY) LTD
...................
Second Respondent
Last date of hearing: 4 December 2012
Date of judgment: 17 May 2013
JUDGMENT
Alleged automatically unfair dismissal on account of having made a
protected disclosure – causation not established –

dismissal thus not automatically unfair – but retrenchment
procedurally unfair – compensation awarded.
MYBURGH AJ:
Introduction
The applicant was employed by the first respondent
(MTN) as a senior legal advisor (SLA) in its commercial legal
department (CLD)
until her dismissal on 31 July 2011. In this
action, she claims that she was automatically unfairly dismissed on
account of having
made a protected disclosure, alternatively that
her retrenchment was substantively and procedurally unfair. She
seeks reinstatement,
alternatively maximum compensation, and an
order that she be allowed to exercise certain share rights.
A substantial
amount of evidence was led at the trial over seven days. The
applicant commenced adducing evidence and then called
two witnesses
– Lionel van Tonder (a director of PwC
1
)
and Ignatius Sehoole (GE:
2
business risk management of the second respondent (MTN
Group)) both of whom were subpoenaed to give evidence. Three
witnesses
then testified on behalf of MTN – Fusi Mokoena (GM:
3
CLD), Karin Ramadan (HR
4
partner) and Robert Madzonga (CCSO
5
).
There are six main issues to be decided: (a) did the
applicant make a protected disclosure; (b) if so, was the applicant
dismissed
on account of having made that disclosure (with the result
that her dismissal was automatically unfair) or on account of MTN’s

operational requirements; (c) if the applicant’s dismissal was
not automatically unfair, was her retrenchment substantively
fair;
(d) similarly, if the applicant’s dismissal was not
automatically unfair, was her retrenchment procedurally fair;
(e) in
the event of the applicant’s dismissal being found unfair on
any basis, what is the appropriate relief; and (f)
is the applicant
entitled to an order that she be allowed to exercise certain share
rights.
Before dealing with these issues, it is convenient to
set out a broad outline of the evidence in chronological order. This
in
circumstances where the chronology of events is important for the
purposes of the determination of this matter.
Broad outline of the evidence in chronological order
On 1 February
2009, the applicant commenced employment with MTN as a SLA within
the CLD. At the time, Madzonga was the GM of the
CLD, and had five
SLAs reporting into him, who, in turn, had a number of (junior)
legal advisors reporting into them. The five
SLA positions were:
SLA: CMO
6
(Karen Pinheiro); SLA: CCSO (Mpho Malange); SLA:
CTI
7
/CIO
8
(the applicant); SLA: CFO
9
and group procurement (Zanele Radebe); and SLA: M&A
10
and group shared services.
11
In December 2009 / January 2010, in an attempt at
reducing headcount, MTN engaged in a voluntary retrenchment
exercise. Amongst
those who took up the offer was the SLA: M&A
and group shared services. The position was not filled and remained
vacant at
all material times.
In March 2010, Madzonga was promoted from GM: CLD to
CCSO. He held down both positions pending the new GM: CLD being
appointed.
As the CCSO, Madzonga was responsible for corporate
services, which includes the CLD.
Also in March 2010, the applicant became aware of
certain invoices issued by Nozuko Nxusani Attorneys (NNA) to MTN and
authorised
for payment by Madzonga, which invoices she considered to
be irregular. (I return to this in more detail below.)
In March / April
2010, the applicant, together with other legal advisors within the
CLD, held informal discussions with employees
within BRM
12
about the possibility of making a whistle-blower report
using MTN’s fraud and ethics hotline (tip-offs anonymous)
which
is operated independently by Deloitte. According to the
applicant, the advice received from the BRM employees was that
anonymity
could not be guaranteed and that a disclosure would be a
ticket out of MTN. It was in these circumstances that the applicant

and her colleagues elected not to make use of the hotline. (In
evidence, with a view to protecting their identity, the applicant

was not prepared to disclose the names of her colleagues or the BRM
employees concerned.)
On 28 June 2010, the applicant was awarded 7100 share
rights in accordance with the provisions of the rules of the MTN
Group share
rights plan, and upon the terms specified in the letter
issued to her.
In June, July and August 2010, Madzonga appointed the
SLAs on a rotational basis to act as the GM: CLD. The applicant
acted during
the period 21 June – 4 July 2010.
In September 2010, Mokoena was appointed as the new GM:
CLD. He reported directly to Madzonga.
From March 2010 until Mokoena’s appointment in
September 2010 (as well as in the month of October 2010), Madzonga
had continued
to authorise for payment invoices received from NNA on
a monthly basis.
In November 2010,
Sehoole was appointed as the VP:
13
SEA
14
of the MTN Group.
15
This was a very senior position, with the various
operating companies within the SEA region reporting into Sehoole,
one of which
is MTN in South Africa. Sehoole would also appear to
have been a member of MTN’s board. The applicant and Sehoole
were
distant relatives through marriage. (The applicant’s
sister’s late husband and Sehoole were cousins.)
On the second Sunday of November 2010, at the request
of the applicant, Sehoole met with the applicant at her home. During
the
course of their meeting, the applicant handed over to Sehoole a
string of invoices from NNA and brought to his attention her

concerns about the invoices. The applicant confided in Sehoole
because she trusted him. A week later, Sehoole telephoned the

applicant and asked her to meet with PwC.
PwC are MTN’s
external auditors and Sehoole had worked for them before joining the
MTN Group. Upon having received the invoices
from the applicant,
Sehoole made contact with Johan van Huyssteen (the PwC audit partner
responsible for MTN) and asked him to
look into the matter. After
PwC had advised that the invoices were
prima
facie
irregular, Sehoole met with Sifiso
Dabengwa (CEO
16
of the MTN Group), who advised him to appoint forensic
auditors to investigate the matter. It was in these circumstances
that
Sehoole appointed PwC to conduct a forensic audit of the
invoices. Although Sehoole could not recall whether he had told the

CEO at the time of their discussion that he was using PwC, he
testified that the CEO came to learn that he had appointed them,
and
that the CEO did not voice any objection to their appointment. The
forensic audit was undertaken by Van Tonder (of PwC),
who Sehoole
had not met while working at PwC.
During the course of December 2010, Madzonga received a
message from an ex-employee informing him that he was the subject of
some
or other investigation. The details of the investigation were
not clear to him and he apparently attached little weight to the

tip-off.
In either early December 2010 (according to the
applicant) or late January 2011 (according to MTN), Madzonga called
a meeting
of the CLD, and thereafter held one-on-one meetings with
all members thereof. (Although there is a dispute of fact about what
transpired in this regard, it was the applicant’s evidence
that it appeared to her from her interaction with Madzonga at
this
point in time that he was aware that she was the whistle-blower. The
issue is dealt with further below.)
On 8 and 9 December 2010, a CLD strategic session was
conducted. Mokoena and the applicant were present, with Madzonga
also having
attended for a short while to report back on the review
of MTN’s new five year business plan undertaken by MTN’s

Exco. (There is a dispute of fact about what transpired.)
On 21 January 2011, Madzonga sent an email to the CLD.
With reference to Exco’s review and the economic challenges
facing
the business, the email records that each department had been
tasked with coming up with plans to: reduce costs significantly;

remove duplications; remove silos; and improve processes. Madzonga
also recorded that he ‘had discussions with [CLD] last
year at
their strat session and yesterday at their weekly Dept meeting
regarding the above’, and that ‘corporate
services costs
have skyrocketed in the current financial year and we need to get
inputs from everyone on how we can work smarter,
efficiently without
any duplications’.
On 17 February 2011, another CLD strategic session was
conducted under the leadership of Mokoena. Although the applicant
did not
attend this session, the PowerPoint slides relating thereto
record that the focus for 2011 included ‘improving
efficiencies
through process review and embedding continuous
improvement principles in the way we execute our responsibilities’.
Following this strategic session, Mokoena held
one-on-one meetings with members of the CLD with a view to exploring
the nature
and volume of work performed by them and the departmental
structure. The notes kept by Mokoena at his meeting with the
applicant
on 23 February 2011 reflect annotations to the effect that
the structure was ‘not optimal’, and that there was a

‘thin line between IS and procurement’.
Also in February 2011, the applicant met with PwC for
the first time.
At all material times, the CLD held fortnightly
meetings. From the meeting held on 17 March 2011 onwards, the agenda
for these
meetings included these two standing items: ‘HR
issues (need to improve inefficiencies and look at our structure:
are we
optimally structured)’; and ‘CLD structure review
/ changing of mind set / efficiencies’. (There is a dispute
of
fact regarding what was discussed under these agenda items.)
On 24 March 2011, at their request, the applicant
provided PwC with an affidavit setting out her concerns about the
NNA invoices,
which she had relayed to Sehoole.
On 20 April 2011, Sehoole signed PwC’s engagement
letter, in terms of which they were formally engaged to investigate
the
NNA invoices.
On 28 April 2011, PwC interviewed Madzonga as part of
their investigation. They also at a point in time made a raid on
Madzonga’s
offices and downloaded material from his computer
which they considered relevant.
According to
Mokoena, on 2 May 2011, Karel Pienaar (the MD
17
of MTN) informed him that Madzonga was being
investigated following a complaint having been received about
irregular invoices.
At this point in time, Mokoena did not know who
the informant was and did not have a suspicion on this score.
On 9 May 2011, a meeting of the CLD was called to
discuss its restructuring. Madzonga, Mokoena, Ramadan and the
applicant were
all present. The minutes reflect Madzonga as having
stated that: ‘the CL structure is no longer efficient and
needed to
be reviewed’; and ‘there may be a possibility
of redundancies in the affected areas’. The minutes also
reflect
Mokoena as having stated that: ‘he had several
meetings with the team and the main concern discussed was that the
current
structure is not efficient and optimal as it does not allow
rotation [of] legal advisors and exposure to work within other
business
units’; and he had held a meeting with ‘Prudence
Mokone (organisational development) and Karin Ramadan (HR partner)

to discuss the concerns discussed with the legal team regarding the
current structure’. As again reflected in the minutes,
the
meeting concluded on the basis that ‘it was agreed that the
final structure will be sent to [Madzonga] on Friday, 20
May 2011’.
On 11 May 2011, in circumstances where he had detected
anxiety amongst members of the CLD at the meeting on 9 May 2011,
Mokoena
emailed the entire CLD a series of 12 PowerPoint slides
titled ‘proposed organisational structure – change for
commercial
legal department’ under cover of a note (copying
Madzonga, Ramadan and Mokone). Mokoena was himself the author of the
slides
and had made a presentation thereof to Madzonga, Mokone and
Ramadan before the CLD meeting on 9 May 2011 (at which the slides
had not been presented). The note from Mokoena accompanying the
slides reads:
‘
Further
to our meeting on the re-organisation of our structure [on 9 May
2011] I attach the slides dealing with the re-organisation,
the
rationale and benefits of such re-organisation. I have had extensive
discussions with everybody in the team and with HR. The
objective of
the re-organisation is to improve efficiencies and service delivery
and not about faces behind the positions. As you
will see from the
structure there will be redundancies and new positions created.
People affected will have the opportunity to
apply for new positions
alongside other members of the team. As discussed in our meeting,
kindly think carefully about the proposed
structure and provide your
input or alternatives by next week Friday as agreed. Please do not
lose focus about the objective of
this process, which is optimising
our structure in order to improve efficiencies and service delivery
to our internal clients.
After getting your input I will finalise the structure
and we will have to move to implementation. You will always be kept
abreast
of developments.’
The slides addressed five topics: the current structure
(organogram); challenges with regard to the current structure;
proposed
structure (organogram); proposed changes and rationale; and
benefits of the new structure.
The challenges with the current structure of the CLD
were described as follows:
‘
Follows the structure of
business units and is not service driven.
Encourages silo thinking (legal advisors only focus on
business units they support and, as a result, do not provide
holistic advice
that focuses on the bigger MTN business).
Doesn’t support MTN VIVA strategy’s
integrated approach.
Promote inefficiencies (legal advisors with capacity
don’t assist other overloaded legal advisors supporting a
different
business unit, i.e. resources cannot be moved around on
the basis of demand).
Doesn’t facilitate multi-skilling and broader
competency pool.
Doesn’t create an environment where junior
members of the team can learn and grow (e.g. a junior legal advisor
supporting
a particular business unit doesn’t get exposed to
other areas of MTN business and different areas of the law and their

career growth and competency is constrained).
Doesn’t create an environment for growth and
talent retention.’
[33] The proposed new structure differed in the
following four main respects from the existing structure.
a) Firstly, the existing structure had an administrative
assistant reporting to Mokoena, whereas it was proposed that the
position
be upgraded to the position of a legal secretary (which
position was marked as vacant on the proposed structure).
b) Secondly, the existing structure had five SLAs,
whereas it was proposed that there be four SLAs.
c) Thirdly, there were three changes in the proposed
configuration of SLA positions: the position of SLA: M&A and
group shared
services (which had been vacant for some time) was done
away with; a new position of SLA: business channel was created by
re-profiling
the aforesaid vacant position; and the position of SLA:
CTI/CIO occupied by the applicant was done away with.
d) Fourthly, whereas the existing structure provided for
legal advisors being dedicated to each business unit under a SLA, the
proposed
structure created a pool of legal advisors not dedicated to
any particular business unit and available to be utilised on a needs

basis.
A noteworthy feature the organogram reflecting the
proposed structure is that whereas each of the applicant’s
three fellow
SLAs (Pinheiro, Malange and Radebe) were reflected as
having been placed on the new structure (effectively in the
positions they
were occupying at the time), the applicant’s
name did not appear on the new structure, with the new position of
SLA: business
channel having been marked ‘vacant’.
The proposed changes and rationale therefor in relation
to the position of SLA: CTI/CIO occupied by the applicant were
stated
as follows in the slides:
‘
That
the position of [SLA]: CTO
18
/CIO
be made redundant.
This position is supposed to support the CTO and CIO.
However, legal work for both CTO and CIO is of a
procurement nature.
This work involves, inter alia, infrastructure related
contracts like network roll out contracts, capacity leasing
contracts,
site leasing contracts, construction contracts, and IT
related contracts like software development contracts, software
licensing
contracts, hardware supply contracts, support and
maintenance contracts.
The industry best practice is that this work is done
by legal advisors supporting procurement.
Efficiencies will be improved if this work is moved
to [SLA]: procurement.
With procurement work being moved to procurement,
the [SLA]: CTO/CIO will only remain with work on carrier services,
roaming and
data hosting. The volumes of this work do not justify a
[SLA] and this work can easily be moved under the [SLA]:
procurement.
The position of
[SLA]: CTO/CIO should therefore be made redundant.’
(Emphasis
added.)
On 12 May 2011, the applicant responded to Mokoena’s
communication. Amongst the points raised by her were that: while the

focus had been on structural inefficiencies, there was no evidence
to suggest that an investigation had been done into other

inefficiencies (for example, fees spent on external attorneys); she
queried the correctness of the proposition that it was ‘best

practice’ for the sort of work she was doing to be undertaken
by the procurement business unit; she sought clarity on the
kind of
work that the SLA: CCSO and the SLA: procurement were doing on a
daily basis; she contended that a decision had apparently
already
been made on the new structure, with due process having been
ignored; she disputed the rationale for the restructuring,
stating
that ‘I hope and believe that the reason for declaring my
position redundant is not motivated by other issues’;
and she
disputed that proper consultation had been followed.
Also on 12 May 2011, Mokoena responded to the
applicant’s email in detail, in the process of which he first
dealt with what
had transpired during his one-on-one consultation
with the applicant, and then addressed each of the issues raised by
her in
her email. According to Mokoena, a final decision had not
been taken on the structure as yet, and he accepted that his slides
and email did not constitute (retrenchment) consultation, which he
stated would be initiated under the guidance of HR once a final

decision had been made on the new structure.
On 16 May 2011, Madzonga sent an email to members of
the CLD reminding them that the deadline for the submission of
comments on
the new structure was 20 May 2011, and stating that
Mokoena’s proposed structure was not yet finalised and would
only be
finalised after receipt of comments.
On 18 May 2011, Veruscha Maragele (a legal advisor)
passed away.
By 20 May 2011, apart from the applicant’s email
of 12 May 2011, only limited oral comments on the proposed new
structure
had been received.
On 23 May 2011, PwC held a second meeting with Madzonga
as part of their forensic investigation. According to Madzonga, he
enquired
from Van Tonder whether the applicant or one or two other
persons was the whistle-blower, with Van Tonder (who was obviously

not at liberty to disclose such information) having denied this,
which denial he accepted as true. In his evidence, Van Tonder

confirmed the enquiry made by Madzonga in relation to the applicant
and his response thereto. (Apparently, the applicant’s
email
of 12 May 2011 had got Madzonga thinking.)
On Friday, 27 May 2011, Madzonga circulated within the
CLD a revised proposed structure. His covering note records that
Mokoena
had submitted the proposed structure to him for approval,
and that he had made some changes thereto, which he invited staff to

comment on by 09h00 on Monday 30 May 2012. The difference between
the structure proposed by Mokoena and that proposed by Madzonga
was
that there were three (as opposed to four) SLA positions on
Madzonga’s structure, with the position of SLA: business

channel having been done away with. Another difference was that
there were no names attached to the three SLA positions on

Madzonga’s structure (referred to as – SLA: CMO; SLA:
CCSO; and SLA: CFO, procurement & CIO/CTO). This was done
at the
insistence of Madzonga and Ramadan.
According to the applicant, Madzonga had sought to
finalise the structure by 27 May 2011, because PwC was due to submit
an interim
report on that day.
Despite Madzonga having given staff until 09h00 on 30
May 2011 to submit comments on his proposed structure, it was signed
off
by Themba Nyathi (HR executive) on 26 May 2011, by Madzonga
himself on 27 May 2011, and by Pienaar on a date that is illegible.
[45] A number of events occurred on 30 May 2011.
a) Firstly, at 08h06 (i.e. before the deadline for the
submission of comments), the applicant sent an email to Madzonga /
Mokoena
stating that she could not respond to the structure proposed
by Madzonga in the absence of having been provided with the
information
which she had requested from Mokoena.
b) Secondly, at 08h41, Mokoena responded to this email
by recording that he had already responded to the applicant’s
request
for information (both in his email of 12 May 2011 and in the
CLD meeting on that day) and reiterating that: ‘organisational

restructuring has to do with operational efficiencies’; ‘the
budget is not part of your KPAs and I don’t understand
how you
try to bring it in[to] operational efficiency discussions’; and
‘with regard to what other SLAs are doing,
I have stated that
we should deal with issues and not with people’. In the result,
Mokoena concluded his email by stating
that ‘there is no
outstanding information from me to you’.
c) Thirdly, at 09h27, the applicant responded to
Mokoena’s email in the following terms.
‘
I have requested information
about the following, which is still outstanding.
The kind of matters that we are outsourcing to external
attorneys. This should include litigation and contracts where
attorneys
are being requested to draft.
The attorneys that are instructed.
Seeing that you have indicated that we have spent R37
million on legal fees, it will be beneficial for me, in particular to
identify
the circumstances that we could have spent all this could be
(sic) one of the causes of the inefficiencies in the department. This

is of great importance to me because I was taken out of the structure
citing inefficiencies / duplication as the reason.
My rights are hereby strictly reserved.’
d) Fourthly, the second CLD restructuring meeting took place, with
Madzonga, Mokoena and the applicant all being in attendance.
The
minutes of the meeting record that if anyone had any comments on
Madzonga’s proposed structure, they should be submitted
to him
or Mokoena before the close of business that day and that Madzonga
‘will present the structure to Karel Pienaar and
Themba Nyathi
on 31 May 2011’. The minutes also reflect some discussion about
SLAs applying / being interviewed for the three
positions on the new
structure.
e) Fifthly, at 11h29,
Mokoena responded to the applicant’s email sent at 09h27 in the
following terms:
‘
The
information that you have requested does not talk to whether the
structure proposed by myself and Robert [Madzonga] is optimal
or not
and the information you requested is, accordingly, irrelevant. I
suggest that you take the opportunity to provide your input
or
suggest alternatives to the proposed structure. With regard to the
information you are requesting, I am not intending to belabour
this
matter and consider it closed from my side.’
f) Sixthly, at 12h06, Madzonga responded to the
applicant’s email sent at 08h06. He recorded in part as
follows:
‘
Sorry
I did not see your email before our dept meeting this morning hence I
did not make any reference to it. I think this is a
matter which
should be included with other initiatives designed to improve service
efficiencies (I refer to them as “out
of box”
initiatives) and not structural initiatives. Indeed we may be
outsourcing too much hence we need to review both services
and
structural deficiencies.
I believe this may have been raised already [in] your
services improvement initiatives and if not, it should be included so
that
we should cut down drastically on outsource (sic). Please let me
have your input on the structural deficiencies as a matter of extreme

urgency as discussed this morning.’
On 31 May 2011, PwC submitted a first draft report, and
were subsequently requested to perform additional procedures which
they
attended to (see further below).
On 1 June 2011, Madzonga announced to the CLD that his
structure had been approved.
Also on 1 June 2011, the applicant sent Madzonga an
email, which elicited this response (in part) by him:
‘
If my recollection is correct,
the information that you requested relates to breakdown of legal fees
incurred for the period of
Jan 2010 to Dec 2010.
I cannot comment on your view regarding the relevancy of
the information requested save to repeat my initial view contained in
my
email of Monday, 30
th
May 2010 (sic).’
On 2 June 2011,
the applicant (and the other SLAs) received a letter issued in terms
of section 189(3) of the LRA
19
(dated 1 June 2011). In terms thereof, MTN signalled
its intention to engage in what is commonly referred to as a
‘spill-and-fill’
exercise – all of the four SLAs
would be afforded the opportunity of applying for the three posts on
offer, and the unsuccessful
one would face the possibility of
retrenchment.
Also on 2 June 2011, the applicant was provided with
the job profiles for the three SLA positions on offer and invited to
submit
her CV by the close of business on 7 June 2011.
On 6 June 2011, the applicant sent an email to Clarissa
Ross, who was the contact person referred to in the applicant’s

section 189(3) letter. The email records as follows:
‘
On
the 27
th
of
May 2011, I was requested to make comments by the 30
th
of
May 2011 on a structure which is proposed. I have since been
furnished with a copy of the structure which was already approved
at
the time of the request to give comments. It is clear from the above
that the structure was approved before any comments were
considered.
In a nutshell, the email of the 27
th
of
May 2011 was just a formality.
I was furnished
with a letter dated the 1
st
of
June 2011 titled “restructure and possible termination for
operational reasons”. The letter indicates that two employees

are going to be affected and in the proposed structure that was given
to me of the 11
th
May
2011, you already knew who the two employees were, i.e. myself and
the legal secretary. The same structure was given to me on
the 27
th
May 2011 except that the names have been removed and the
position of SLA business was removed from the structure. In the light
of
the above, the only conclusion that I can draw is that
I
am aware of the fact that this proposed restructuring is targeting
me
. The fact that I was removed from the
structure without being consulted and to also comment when the
structure was already approved
shows that the employer wanted to
remove me from the structure without the necessary process being
followed and
instead to get rid of me because
of the disclosure of a possible impropriety within the meaning of
[the] Protected Disclosure Act
. I also want
to put on record that I have been denied information that I have
requested in relation to the so-called restructuring
and I was denied
on the basis that it was not relevant. I still reiterate that the
information that is requested in any restructuring
process is
relevant.
As requested, and without necessarily agreeing with the
process, I attach herewith my CV for the position of SLA procurement
/ CMO-CTO
(sic) and SLA CMO even if I don’t know the criteria
that is going to be used for the appointment of the person as this
wasn’t
discussed with me.’(Emphasis added.)
Also on 6 June 2011, Ross responded to the applicant,
which was copied to both Madzonga and Mokoena. The thrust of Ross’
response is captured in the last two sentences thereof: ‘Ample
time has passed since December and you have been engaged
as part of
a team and as an individual, regrettably it seems that you have not
participated as no structural suggestions were
received from your
end. The required consultation process has been exhausted.’
(Remarkably, there was no response at all
to the applicant’s
contention that she was being victimised on account of having made a
protected disclosure.)
Both Madzonga and Mokoena admitted to having received
the applicant’s email of 6 June 2011 and the response thereto
by Ross,
but stated that they had not paid attention thereto.
On 9 June 2011, the interviews for the three SLA
positions were conducted by a panel comprising Madzonga, Mokoena and
Ramadan.
The panel worked off pre-prepared questionnaires for each
position and scored applicants on a five-point rating scale on a
consensus-basis.
When it became apparent during the interviews that
the applicant was not at all equipped to perform the position of
SLA: CMO,
she was allowed to change her application to the position
of SLA: CCSO, and she was then interviewed for this position and
that
of SLA: CFO, procurement & CIO/CTO. By her own admission,
the applicant did not fare well during the interview process, and

she accepted that she scored the lowest of the four candidates –
although, as she pointed out, this was understandable
given that she
was competing against experienced SLAs who were, in effect, working
in the positions that they applied for.
On Friday, 10 June 2011, the applicant was given
feedback on the interviews at a meeting attended by Madzonga,
Mokoena and Ramadan.
Having been advised that she had been
unsuccessful with her applications, the applicant was handed a
letter of retrenchment.
The successful applicants for the three SLA positions
were: SLA: CMO (Pinheiro); SLA: CSSO (Malange); and SLA: CFO,
procurement
& CIO/CTO (Radebe).
In terms of the applicant’s letter of
retrenchment (dated Friday, 10 June 2011), she was advised that it
was projected that
her retrenchment would take effect on 31 July
2011, and she was invited to consult with MTN in an attempt to reach
consensus
on the various proposals contained in the letter. To this
end, the applicant was required to make representations by no later
than Monday, 13 June 2011, which was recorded as being the deadline
for the completion of consultations.
The retrenchment letter also provided as follows under
the heading ‘future re-employment’:
‘
If in the future the situation
changes, MTN SA will over a period of 6 months consider re-employment
based on a preferential basis
to affected employees on the following
conditions:
8.1. the employee concerned has expressed a wish to be
considered for re-employment;
8.2. the employee concerned has not found alternative
employment (i.e. we will give preference to those employees who have
not found
alternative employment);
8.3. we will notify each employee concerned at whichever
address he or she chooses and supplies us in writing from time to
time
of a vacancy;
8.4. we will remove from the list of former employees
those who have found alternative employment as well as those who do
not respond
to two (2) invitations to apply for vacancies which have
arisen; and
8.5. the employees is suitably qualified for the vacant
position.’
[59] On 14 June
2011, and without having made any representations by the 13 June 2011
deadline, the applicant referred a dispute
to the CCMA
20
for conciliation. In her referral, she stated that she
considered her retrenchment to be a reprisal for having made a
protected
disclosure. (Again, MTN did nothing to address the
applicant’s concern.)
[60] On 21 June 2011, and in circumstances where issues
had allegedly arisen regarding her conduct, the applicant was
required to
leave MTN forthwith, although she was paid up until 31
July 2011. (There is a dispute of fact in this regard.)
[61] On 22 August 2011, PwC submitted a draft forensic
audit report to Shauket Fakie (the GE: business risk management of
the MTN
Group). The report, which is lengthy, reflects that NNA
submitted 78 invoices in the amount of some R12.3-million in respect
of
legal fees for the drafting and amendment of agreements to MTN
between January 2010 and March 2011, and that they were all approved

by Madzonga and paid by MTN. In conclusion, the report records that
the invoices contained anomalies and appeared irregular in
various
respects, including that: no record could be found of Madzonga having
instructed NNA in writing; NNA was unable to provide
details of the
time spent in drafting or amending the 18 agreements in question; NNA
appeared guilty of overreaching; the invoice
dates and dates of
approval did not always correspond; NNA’s hourly rate was
inconsistent; and the dates of work performed
recorded in the
invoices were inaccurate in certain respects.
[62] It was common
cause at the trial that the PwC report was made conscientiously, with
no attempt being made by MTN to dispute
its findings. It also stands
to be accepted that the report served to establish that the applicant
acted
bona fide
in
making her disclosure, and that she had reason to believe that
improprieties or irregularities were committed.
[63] Also in August 2011, Maragele’s position (she
having died on 18 May 2011) was filled by Bulumko Ntloko, who was an
external
appointment.
[64] In October or November 2011, Pinheiro (SLA: CMO)
resigned. Her position was filled by Malange (previously the SLA:
CCSO) and
Malange’s position (SLA: CCSO) was filled by Ryan
Webb (who was promoted from the ranks of a legal advisor) in December
2011.
[65] According to Mokoena, the applicant was not invited
to apply for either vacancy because of the trouble which she had
caused
that resulted in her being asked to leave MTN early.
[66] With effect from 1 October 2011 (two months after
her dismissal), the applicant commenced alternative employment. Her
total
package is now R773 000, whereas she earned R831 000
at MTN (and, in addition, received an incentive bonus, free cell

phone calls and free share options).
[67] On 7 October 2011, and following an investigation
into the allocation of work to NNA, MTN issued Madzonga with a
written warning
(which he did not challenge) for the following
misconduct:
‘
1.
You were negligent insofar as you failed to comply with necessary and
proper governance procedures and practices in instructing
the
attorneys;
2. You were negligent in the maintenance of proper
records for all work undertaken by the attorneys;
3. You improperly approved payment to the attorneys in
circumstances where no adequate supporting documentation was
maintained by
you.’
[68] In April / May 2012, some ten months after the
applicant’s dismissal, a fourth SLA position was added to the
CLD structure,
being that of SLA: business channel. Although the
position had the same name as the position that Mokoena had proposed
in his structure,
but which had been removed by Madzonga in the final
structure, the position had its genesis in the formation of a new MTN
business
unit (the enterprise business unit) around about April / May
2012. The position was filled by Leapia Msibi (who, like Webb, was

promoted from the ranks of legal advisor).
[39] I turn now to consider the main issues for
determination as set out above.
The first issue: did the applicant make a protected
disclosure?
[70] Section 3 of
the PDA
21
provides that no employee may be subjected to any
occupational detriment (defined as including dismissal) by his or her
employer
on account of having made a protected disclosure. In order
to enjoy protection under section 6 of the PDA, which deals with a
protected
disclosure to an employer, the disclosure needs to be made
in good faith and substantially in accordance with any procedure
prescribed,
or authorised by the employee’s employer for
reporting or otherwise remedying the impropriety concerned.
[71] In their heads of argument, the only basis upon
which Mr Brassey SC and Mr Manchu, who appeared for the respondents,
contended
that the applicant’s disclosure was not protected was
on account of the fact that the applicant did not make use of MTN’s

fraud and ethics hotline and instead spoke to Sehoole, who, in turn,
himself failed to follow proper procedures (so it was contended).

However, in oral argument, Mr Brassey did not persist with this. To
my mind, this implied concession was wisely made. Where an
employer
has a hotline, but an employee decides instead to make a confidential
report to a director of her employer, and is then
asked to co-operate
with the auditors appointed by the employer to investigate the
complaint and does so on a confidential basis
(this being the
procedure authorised by the employer), as occurred herein, it cannot
be contended that the disclosure is unprotected
for want of
compliance with the prescribed / authorised procedure.
[72] In the circumstances, I find that the applicant
made a protected disclosure to Sehoole and / or PwC.
The second issue: was the applicant dismissed on account of having
made a protected disclosure?
The operation of section 187(1)(h)
[73] Section
187(1)(h) of the LRA provides that a dismissal will be automatically
unfair if the reason for dismissal is ‘a
contravention of the
[PDA], by the employer, on account of an employee having made a
protected disclosure defined in that Act’.
22
This must be read with section 3 of the PDA, which
prohibits the dismissal (along with other occupational detriments) of
an employee
on account (or partly on account) of having made a
protected disclosure.
[74] The central
question in this case is whether – having made a protected
disclosure – the applicant was dismissed
on account thereof
(such as to render her dismissal automatically unfair) or on account
of MTN’s operational requirements.
In short, the central issue
is one of causation. In
SA Chemical Workers
Union & others v Afrox Ltd
(1999) 20
ILJ
1718 (LAC),
23
the LAC
24
held as follows in this regard:
‘
This
issue (the reason for the dismissal) is essentially one of causation
and I can see no reason why the usual two-fold approach
to causation,
applied in other fields of law should not also be utilized here
[authorities omitted]. The first step is to determine
factual
causation: was participation or support, or intended participation or
support, of the protected strike a
sine
qua non
(or
prerequisite) for the dismissal?
Put
another way, would the dismissal have occurred if there was no
participation or support of the strike?
If
the answer is yes, then the dismissal was not automatically unfair.
If the answer is no, that does not immediately render the
dismissal
automatically unfair; the next issue is one of legal causation,
namely whether such participation or conduct was the
"main"
or ''dominant", or ''proximate", or ''most likely"
cause of the dismissal. There are no hard and
fast rules to determine
the question of legal causation [authority omitted]. I would
respectfully venture to suggest that the most
practical way of
approaching the issue would be to determine what
the
most probable inference is that may be drawn from the established
facts as a cause of the dismissal
,
in much the same way as the most probable or plausible inference is
drawn from circumstantial evidence in civil cases. It is important
to
remember that at this stage the fairness of the dismissal is not yet
an issue. … Only if this test of legal causation
also shows
that the most probable cause for the dismissal was only participation
or support of the protected strike, can it be
said that the dismissal
was automatically unfair in terms of s 187(1)(a).’
25
(Emphasis
added.)
[75] Regarding the
onus of proof, although in terms of section 192 of the LRA, MTN bears
the overall onus of proving that the applicant’s
dismissal was
fair, the applicant is saddled with an evidentiary burden of first
bringing herself, at least on a
prima facie
basis, within the operation of section 187(1)(h) of the
LRA, whereupon the aforesaid onus is then triggered. This was
explained
as follows by the LAC in
State
Information Technology Agency (Pty) Ltd v Sekgobela
(2012)
33
ILJ
2374 (LAC):
26
‘
In
cases where it is alleged that the dismissal is automatically unfair,
the situation is not much different save that the “the

evidentiary burden to produce evidence that is sufficient to raise a
credible possibility that an automatically unfair dismissal
has taken
place rests on the applicant [employee]. If the applicant succeeds in
discharging his evidentiary burden then the burden
to show that the
reason for the dismissal did not fall within the circumstances
envisaged by s 187(1) of the LRA rests with [employer]”.
27
It
is evident therefore that a mere allegation that there is a dismissal
is not sufficient but the employee must produce evidence
that is
sufficient to raise a credible possibility that there was an
automatically unfair dismissal.’
28
[76] With reference to this
dictum
, Mr Brassey
submitted in argument that the evidentiary burden placed on the
applicant is akin to the test applicable in the case
of absolution
from the instance. He went on to accept that the applicant had
satisfied the evidentiary burden placed on her, with
the result that
the onus fell on MTN to show that the reason for the dismissal did
not fall within the circumstances envisaged
by section 187(1)(h) of
the LRA.
MTN’s case on causation
[77] With reference to various concessions made by the
applicant under cross-examination, Mr Brassey submitted that in order
for
it to be determined that the applicant was dismissed on account
of having made a protected disclosure it would have to be found
that:
a) Madzonga became aware that the applicant was the
informant who implicated him in acts of apparent corruption; and
b) Madzonga devised a scheme in which he could secure
the applicant’s dismissal under the guise of retrenchment, the
effect
of which was that: (i) the CLD would be restructured to
eliminate one of the posts of SLA; (ii) members of the cohort of SLAs
would
each be interviewed in order to determine who would be placed
in the remaining positions; (iii) the applicant, as the person with

the least experience, would perform worst in the interview since the
questions would be devised so as to ensure that, in all probability,

she would perform worst; (iv) Madzonga lured the senior members of
MTN management (Pienaar and Nyathi) into collusively or unwittingly

supporting the plot by signing off on the restructured organogram he
had devised and, in the case of Mokoena, framing the questions
at the
selection interview to stump the applicant; and (v) the entire
process was supported over a protracted period by extensive

documentary evidence and conduct designed to mislead staff, much of
which would be initiated and consummated by Mokoena.
[78] In relation to the first issue – i.e. whether
there was evidence of knowledge on the part of Madzonga – Mr
Brassey’s
submissions were along these lines.
a) Madzonga’s evidence was this: in the light of
the tip-off Madzonga had received from an ex-employee in December
2010, he
had every reason to suspect that somebody had informed
against him; however, Madzonga denied that, prior to the middle of
May 2011,
he even suspected that the applicant was the person who
informed against him; and the first time that Madzonga actually knew
that
the applicant was the whistle-blower was when he saw the
statement of case she filed with this court.
b) Turning to the applicant’s evidence, she was
only able to refer to two facts in support of her contention that
Madzonga
knew that she was the whistle-blower. The first was the
December 2010 / January 2011 staff meeting in which Madzonga
supposedly
referred to Sehoole as knowing so much about the CLD (see
further below). But, even supposing that this was said, it showed no
more than that Madzonga knew that Sehoole was delving into the CLD’s
affairs, with there being nothing to link this to the
applicant. The
second fact was that Madzonga had asked Van Tonder whether the
applicant was the whistle-blower. But this exchange
takes the matter
no further as Madzonga had put forward other names to Van Tonder, and
he had accepted Van Tonder’s denial
that the applicant was the
whistle-blower as true.
c) With reference to various passages in the transcript,
the applicant conceded under cross-examination that she had no more
than
a suspicion that Madzonga had known that she was the
whistle-blower.
d) In the result, Madzonga’s version of a lack of
knowledge stood to be accepted.
[79] Turning to the second issue – which boils
down to whether there was evidence of a conspiracy – Mr
Brassey’s
submissions were along these lines.
a) Although the applicant was emphatic in her suggestion
that Madzonga had victimised her on account of her whistle-blowing,
she
was unable to always maintain this stance. For example, she
accepted that correspondence written by Madzonga in the run up to her

dismissal was not obviously
mala fide
or suggestive of a lack
of transparency and the presence of duplicity.
b) Madzonga firmly denied that he victimised the
applicant, and denied that he conspired with Mokoena to do so.
Mokoena and Ramadan
themselves denied their part in any conspiracy.
c) While Pienaar and Nyathi (other signatories to the
final structure) were not called as witnesses, their evidence was
unnecessary
since the applicant did not implicate them in the plot.
The applicant conceded that they had enough knowledge of the CLD to
be
able to make an independent assessment of the utility of the new
structure. If they, having applied their minds to the matter, had

come to the conclusion that something was amiss, they would most
certainly have dealt with the problem if, as the applicant conceded,

they were untainted by any conspiracy.
d) The applicant sought to implicate Mokoena and Ramadan
by a process of inference from the fact that she, a whistle-blower,
was
the one who was ultimately dismissed. The fallacy in this is that
her selection for dismissal is equally consistent with the fact
that
she was the person who, by her own account, was the one to be
retrenched. (I mention in this regard that the applicant accepted
in
her evidence that, if the process of restructuring and retrenchment
was genuine, then she was the person properly selected for

retrenchment.)
e) The applicant also sought to make something of the
fact that Mokoena omitted her name from the initial organogram, but
this evidence
counts against her case – manifestly, only a fool
would show his hand in this way if he were part of a conspiracy of
the
sort suggested.
f) The applicant conceded that only Madzonga had a
motive to conspire against her. Mokoena did not but might, so the
applicant suggested,
do so if instructed by his superior (Madzonga).
Ultimately, however, the applicant conceded that he was not the kind
of person
who would behave in this way. Though occasionally willing
to suggest that Mokoena was a liar, she was generally unable to
condemn
him as a conspirator. Pertinently asked whether she believed
Madzonga had instructed Mokoena to target her, she conceded that ‘no,

that is not my evidence’.
g) Ramadan was from time to time accused by the
applicant of being complicit in the plot, but in vague terms.
Ultimately, the applicant
conceded that there was nothing to suggest
that she was biased against her. Asked if the selection panel was
biased against her,
the applicant said ‘I cannot talk for Karen
Ramadan. I would not say Karen was biased against me’.
h) The applicant’s conduct was inconsistent with
the belief that she was being victimized for whistle-blowing. She did
not
make a complaint to the HR department; she did not complain that
the organogram had been structured in order to victimize her and
more
specifically, she did not initiate the grievance procedure for that
purpose; she did not take the matter up with either Mokoena
or Fakie;
and she solicited no report back from Sehoole.
i) In the result, the evidence did not establish the
existence of a conspiracy, which was destructive of the applicant’s
claim
that she had been dismissed on account of having made a
protected disclosure.
The applicant’s case on causation
[80] In his heads of argument, Mr Seleka, who appeared
for the applicant, sets out a lengthy set of submissions (under the
heading
‘occupational detriment’) in support of the
contention that the applicant was dismissed on account of having made
a
protected disclosure, and that her retrenchment was simply a sham
and a camouflage rooted in a conspiracy.
[81] In a well prepared oral argument, with reference to
a written note on his argument, Mr Seleka advanced the following list
of
facts / submissions (which I have summarised) in support of this
contention.
a) Already in December 2010, Madzonga knew about the PwC
investigation (having been tipped off by an ex-employee), and knew
that
the applicant was the whistle-blower (this in the light of the
December staff and one-on-one meetings referred to below), with him

having gone on to raise the issue with Van Tonder in May 2011.
b) At a CLD meeting in December 2010 (‘the
December meeting’), Madzonga (on the applicant’s version)
took employees
to task about gossiping about him and enquired about
how someone so new (presumably a reference to Sehoole) in the MTN
Group could
know so much about what was going on in MTN South Africa.
c) Shortly after the December meeting, Madzonga convened
one-on-one meetings with employees. During the course of his meeting
with
the applicant, the following transpired (on the applicant’s
version): Madzonga asked the applicant whether she had a problem
with
him; the applicant replied in the negative and, in turn, asked
Madzonga whether he had a problem with her; and, in response,

Madzonga stated that he did not have a problem with the applicant,
provided she was not friends with Dabengwa or anyone within
the Group
executive.
d) This was then followed (out of the blue) by
Madzonga’s email of 21 January 2011, where he spoke of the need
to ‘reduce
costs significantly’ and ‘remove
duplications’ – this being the beginning of the plot to
get rid of the
applicant.
e) When the applicant requested a copy of the budget
(i.e. a spread sheet reflecting all matters outsourced to attorneys,
the names
of the attorneys and the legal costs incurred), this was
refused by Mokoena and Madzonga in their emails of 30 May 2011. This
despite
Madzonga’s concession that the structure determined
costs and that the information requested by the applicant related to
the structure.
f) Already during the one-on-one meeting held between
Mokoena and the applicant in February 2011, Mokoena (on his version)
spoke
of the applicant’s redundancy – this in
circumstances where, according to Madzonga, retrenchments had not
been contemplated
at that stage.
g) Of the SLAs only the applicant’s name was
removed from the ‘finalised’ structure (as Mokoena called
it on occasion)
prepared by Mokoena and released on 11 May 2011.
MTN’s contention that this was an innocent error is
inconsistent with the
fact that the structure had been discussed by
management before it was released.
h) On 12 May 2011, the applicant raised a concern to the
effect that ‘I hope and believe that the reason for declaring
my
position redundant is not motivated by other issues’. In his
response on the same day, Mokoena did not deal with this issue.
I) The new / final structure circulated by Madzonga on
27 May 2011 was hastily approved in the most secretive and disorderly
manner
– it having been approved before the deadline set for
comments (09h00 on 30 May 2011).
j) In terms of the final structure, only the applicant
(as a SLA) was affected, and subsequently received a section 189(3)
letter
on 2 June 2011.
k) On 6 June 2011, the applicant repeated her concern
that she was being targeted on account of having made a protected
disclosure,
recording that MTN was seeking ‘to get rid of me
because of the disclosure of a possible impropriety within the
meaning of
[the PDA]’. Again, the applicant’s complaint
fell on deaf ears and she was completely ignored.
l) After having been identified for retrenchment, no
consultation (in terms of MTN’s retrenchment policy or section
189 of
the LRA) was undertaken together with the applicant. Preceding
discussions over the structure did not relate to the applicant’s

retrenchment – this being borne out by Mokoena’s email to
the applicant on 12 May 2011, which recorded that there had
hitherto
been no process of (retrenchment) consultation undertaken.
m) Allied to the above, there was no consultation with
the applicant over alternatives to her retrenchment (this having been
accepted
by Mokoena). Alternative positions (so it was contended)
were available, namely the position occupied by Maragele (who died
during
May 2011) and the position occupied by Sandile Mazibuko (who
resigned on 9 September 2010).
n) The applicant was retrenched on the basis that her
position was duplicated, but in circumstances where Madzonga still
wanted
the CIO/CTO function (it having been absorbed into the
position of SLA: CFO and procurement).
o) The proffered reason for retrenching the applicant
was (so it was submitted) absolutely nonsensical, when regard is had
to the
fact that the procurement division was said to be
understaffed, inexperienced and overworked – this being the
very reason
why Madzonga outsourced procurement work to NNA. So why
(it was asked) should duplication be of any concern?
p) While she was dismissed allegedly in order to reduce
the staff complement, after the applicant’s dismissal, a new
person
was appointed to Maragele’s position (Ntloko in August
2011), and a new position of SLA: business channel was created and

filled (by Msibi in April / May 2012). In relation to the latter
position, it was removed by Madzonga in his final structure, but
then
brought back after the applicant’s dismissal, which served to
confirm the plot against her.
q) The applicant was the only employee who was dismissed
– and her dismissal was brought forward to 21 June 2011 and
effected
summarily and without due process allegedly on account of
her having been disruptive, which she denied.
r) Not a single one of the legal advisors (to whom the
structural changes related) lost their job. Instead they were either
promoted
to SLA positions or their positions were made permanent.
This, too, cast doubt on what the real reason was for the
restructuring.
s) Madzonga conceded that he told Mokoena to target only
the applicant’s position, despite procurement overlapping with
other
divisions as well. (I point out at this juncture that this does
not accord with my reading of the evidence in point.)
t) The interview process that the applicant was
subjected to was unfair and a sham. The applicant was made to face
unfair competition
from SLAs who already occupied the positions and
had much longer service than she had, and Pinheiro was reappointed to
the position
of SLA: CMO without going through the interview process.
[82] With reference to the above, Mr Seleka submitted
that these factors were more than sufficient to show that the
applicant was
dismissed on account of having made a protected
disclosure.
The credibility of the witnesses
It is necessary to make some findings about the quality
of the witnesses. Mokoena generally impressed me as a witness –

he cut an honest figure in the witness box and gave clear and
convincing evidence. Although by and large a sound witness,
Madzonga’s
evidence was at times marred by uncertainty and
confusion (seemingly as a consequence of not being properly prepared
for the
trial). Ramadan, was a satisfactory, although sometimes
vague witness. Van Tonder and Sehoole (called by the applicant) were

uncontroversial witnesses, with most of their evidence being common
cause. Turning to the applicant, Mr Brassey submitted that
she made
a poor witness for various reasons traversed at length in his heads
of argument. Although I do not find the applicant
to have been a
dishonest witness, some of the criticism levelled against her has
merit, including the fact that she, on occasion,
was determinedly
evasive, anticipated the lines of questioning and sought to fashion
her responses accordingly, contradicted
herself, and gave evidence
based on suspicion. This had some bearing on my assessment of the
evidence.
Evaluation and findings on causation
Central to the applicant’s case is the contention
that Madzonga knew that she was the whistle-blower in December 2010
(before
his email of 21 January 2011). She bases this on the events
of the CLD meeting and one-on-one meeting which she says occurred in

December 2010, but this conflicts with her statement of case, which
records that the meetings occurred a day or two prior to
her meeting
with PwC in February 2011. In his evidence, Madzonga recalled a CLD
meeting where he had addressed staff regarding
gossiping about
relationships and bringing what happened on the weekend to work (as
opposed to gossiping about him), but was
uncertain about the date
thereof, and said that he could not recall saying at a meeting what
the applicant said he had said.
Regarding the one-on-one meeting,
Madzonga accepted that it occurred, with it being his version that
he had addressed the applicant
(along with all other employees in
the CLD) about social gossiping. In circumstances where Madzonga’s
version was not pleaded
in response to the applicant’s
detailed allegations, where it was not put in the same terms to the
applicant under cross-examination,
and where Madzonga’s
evidence was vague in significant respects, I am inclined to accept
the applicant’s version
about the CLD and one-on-one meetings.
However, in my view, it does not follow from this that
Madzonga knew, as at December 2010, that the applicant was the
whistle-blower
– the applicant herself having accepted that
she had no more than a suspicion that Madzonga knew. Instead,
Madzonga appeared
suspicious of all CLD employees. And consistent
with this, his uncertainty extended to his meeting with Van Tonder
on 23 May
2011 (some five months later), when he put forward the
applicant as one of three persons who could have been the
whistle-blower.
Also central to the applicant’s case is that
Madzonga’s email of 21 January 2011 effectively came out of
the blue
and was the beginning of the plot to get rid of her. The
veracity of this contention is tied up with the events of the CLD
strategic
session held on 8 and 9 December 2010. Mokoena testified
that over the two days, he had spoken at length and engaged staff
over
the need to optimise the structure in the CLD and move away
from a silo approach. He also testified that, on the second day,

Madzonga attended the session for a short time to report back on an
Exco review that he was part of at the time. According to Mokoena,

in the context of addressing the fact that MTN was in an economic
downturn, Madzonga had informed staff that ‘[we] need
to
improve our process … [w]e need to ensure that our structures
are optimal’ – this having been the message
carried from
Exco. Madzonga corroborated this in his evidence, adding that he had
said that the CDL needed to be ‘lean
and agile’. In her
evidence, the applicant disputed MTN’s version principally on
the basis that it was not taken
up in the minutes / action plan
flowing from the meeting. Pressed under cross-examination about
whether she had an independent
recollection of the meeting, the
applicant was clearly evasive. There are two recordings that appear
to support MTN’s version
– the first being that Madzonga
made reference to the strategic session in question in his email of
21 January 2011 (in
the context of recounting the Exco review), and
the second being this sentence in the minutes of the CLD meeting of
30 May 2011:
‘[Madzonga] also mentioned that it was discussed
and recorded in the strategy sessions that the [CLD] structure is no
longer
efficient and not structured properly’.
In these circumstances, and particular given that
Mokoena and Madzonga corroborated one another on this issue, I have
little hesitation
in finding that the restructuring of the CLD was
foreshadowed during the December 2010 strategic session – and
that this
was an initiative emanating from MTN’s Exco. The
applicant’s contention that Madzonga’s email of 21
January
2011 came out of the blue and was indicative of the plot
hatched by him to get rid of her thus stands to be rejected.
The next central pillar of the applicant’s case
is that, following upon Madzonga’s email of 21 January 2011,
the entire
restructuring and retrenchment process (which culminated
in her leaving MTN on 21 June 2011) was a plot – rooted in a
conspiracy
– to get rid of her on account of her having made a
protected disclosure (‘the applicant’s contention’).

To my mind, this is an unsustainable contention for two main
reasons.
Firstly, the plot contended for by the applicant would
have required several senior members of MTN management to have
entered
into a conspiracy together with Madzonga along the lines
submitted by Mr Brassey, of which there is no sustainable evidence.

I have no reason to disbelieve Mokoena’s emphatic rejection of
being part of any conspiracy, with this having been corroborated
by
Madzonga, and it is significant that the applicant herself does not
consider Mokoena to be a person of a conspiratorial nature.
And, of
course, without Mokoena being party thereto, there could be no
conspiracy. Also significant is the fact that, as submitted
by Mr
Brassey, the applicant did not contend that Ramadan (at least not
consistently) and Pienaar and Nyathi were part of the
conspiracy.
But, if there had been a conspiracy, they would have had to have
been part of it. In this context, the applicant’s
concession
that Pienaar and Nyathi (MD and HR executive, respectively) were
sufficiently steeped in the structure of the CLD
to themselves make
a judgment call on whether the final structure submitted by Madzonga
was in order is, to my mind, significant.
Secondly, from and overall perspective, the common
cause chronology of events during the period 21 January 2011 and 21
June 2011
(five months) and the documentary record relating thereto
(see paragraphs 20 – 60 above) does not bear out the
applicant’s
contention. Instead, it demonstrates that MTN
engaged in a series of meetings and interactions over a new
structure for the CLD,
decided on a new structure, populated it, and
ultimately retrenched the employee who was not accommodated (the
applicant). Along
the way, the applicant (together with her
colleagues) was consulted with both individually and as part of the
CLD, invitations
to make comments were extended to her, and
responses given (sometimes in a lot of detail) to her input. This
has all the hallmarks
of a typical ‘spill-and-fill’
restructuring exercise, as opposed to a disingenuous plot to get rid
of the applicant
for an ulterior motive. Consistent with this, the
applicant herself admitted that the record of correspondence written
by Mr
Madzonga in the run up to her dismissal was not obviously
mala
fide
or suggestive of a lack of transparency and the presence of
duplicity.
Turning to another issue, also central to the
applicant’s case (this being apparent from the points advanced
by Mr Seleka
in argument) is an inference to the effect that because
the applicant was a whistle-blower and retrenched and (allegedly)
unfairly
so, it follows that she must have been retrenched as a
reprisal for having made a protected disclosure. As submitted by Mr
Brassey,
the fallacy in this is that the applicant’s dismissal
is equally consistent with the fact that she was the person who, by

her own account, was the one to be retrenched, if the process of
retrenchment and restructuring was genuine. Allied to this,
one
would obviously have to be very cautious to elevate what may be
classified as typical procedural shortcomings in the context
of a
retrenchment exercise, to evidence of the retrenchment having been
for an ulterior motive. I refer here to points (e), (f),
(g), (h),
(i), (k), (l) and (m) relied on by Mr Seleka in argument. To my
mind, on the evidence before me, these points are not
indicative of
an ulterior motive, as opposed to being shortcomings (or potential
shortcomings) in the consultative process
per se
.
While many of the points raised by Mr Seleka in
argument have been dealt with above, I turn now to address the
remaining points
raised by him. Regarding the proposed and final
structure (see points (g), (i) and (j)), I am inclined to accept
that: the removal
of the applicant’s name from the structure
proposed by Mokoena was a
bona fide
error; while it is so
that the final structure circulated by Madzonga was approved before
the deadline for comments, the signatories
(as Madzonga testified)
would have revisited it if comments came to light; and there was
nothing sinister in the applicant being
the only SLA affected by the
final structure.
Regarding the contention about the absence of
consultation over alternative positions and the alleged existence
thereof (point
(m)), while there may well have been a process
failure to consult over alternative positions, it was Mokoena’s
evidence
that the applicant was not interested in a junior position,
with the positions previously occupied by Maragele and Mazibuko
having
been legal advisor positions. It was also Mokoena’s
evidence that Mazibuko’s position had been filled before the

applicant’s retrenchment.
Regarding the attack on the rationale for the
applicant’s retrenchment (points (n) and (o)), the evidence
tendered by Mokoena
established that much of the work falling within
the applicant’s portfolio was being done by the procurement
function,
that there was a considerable duplication in this regard,
and that only about 20% of the applicant’s work was not of a

procurement nature. It was, accordingly, considered more efficient
to incorporate the applicant’s CIO/CTO function (which
was
always going to be retained) into the portfolio of the SLA: CFO and
procurement. This rationale is captured in the contents
of the
PowerPoint slide quoted in paragraph 35 above, and was testified
about in some detail. As at the time of the trial –
in excess
of a year after the applicant’s dismissal – that
position (and portfolio) remained intact.
Regarding the attack on a position having been filled
and another created after the applicant’s dismissal (point
(p)), the
applicant was retrenched because her functions could more
efficiently be incorporated into the portfolio of another SLA, which

had no bearing on the appointment of Ntloko and Msibi. In my view,
Msibi’s appointment to the position of SLA: business
channel
ten months after the applicant’s retrenchment is not
indicative of a plot against the applicant given the circumstances

under which this appointment was made (see paragraph 68 above).
Regarding the fact that the applicant was the only
employee who was retrenched and that her dismissal was brought
forward (points
(q) and (r)), I do not considered this indicative of
the applicant having been retrenched for an ulterior motive. In
respect
of the latter point, both Madzonga and Mokoena gave evidence
about the applicant having been disruptive after having been
notified
of her retrenchment, with the result that she was asked to
leave on 21 June 2011 (without any loss of benefits).
Regarding point (s), on my reading of the relevant
portion of the evidence of Madzonga, he went on to testify that ‘I
never
said let us focus on the applicant’s position’.
Regarding the attack on the interview process (point
(t)), the fact that the applicant faced stiff competition during the
interview
process is not indicative of a plot. And insofar as
Pinheiro did not undergo an interview, this had no bearing on the
applicant’s
retrenchment, as the applicant withdrew her
application for the position of SLA: CMO (occupied by Pinheiro)
during the interview
process.
In all the circumstances, I am of the view that MTN has
acquitted itself of the onus of proving that the applicant was not
dismissed
on account of having made a protected disclosure (but
instead on account of its operational requirements). Put
differently, on
the evidence before me, the applicant’s
dismissal would, in my view, have occurred if she had not made the
protected disclosure.
It follows that the applicant’s
dismissal was not automatically unfair.
The third issue: was the applicant’s
retrenchment substantively fair?
In argument before
me, Mr Seleka’s attack on the substantive fairness of the
applicant’s retrenchment was based on
the contention that it
was a sham and that there was no sound economic rationale therefor.
29
Whether it was open to the applicant to pursue the
latter point in the light of her concession that, if it is found
that the retrenchment
was genuinely undertaken (i.e. not a sham),
her retrenchment was in order, appears questionable.
Although the LAC
has in the past adopted divergent views regarding the test for the
substantive fairness of a retrenchment, in
its recent judgment in
Super Group Supply Chain Partners v Dlamini &
another
(2013) 34
ILJ
108 (LAC),
30
the full court endorsed the following
dictum
of the LAC in
Kotze v Rebel
Discount Liquor Group (Pty) Ltd
(2000) 21
ILJ
129 (LAC):
31
‘
The requirement of
consultation is essentially a formal or procedural one, but it also
has a substantive purpose. That purpose is
to ensure that such a
decision is properly and genuinely justifiable by the operational
requirements or by a commercial or business
rationale [authority
omitted]. … The function of the court in scrutinizing the
consultation process is not to second-guess
the commercial or
business efficacy of the employer's ultimate decision but to pass
judgment on whether such a decision was genuine
and not merely a
sham. The court's function is not to decide whether the employer made
the best decision under the circumstances,
but only whether it was a
rational commercial or operational decision, properly taking into
account what emerged during the consultation
process [authority
omitted].’
32
With reference hereto, and for the reasons already
stated above (see paragraph 94), I am of the view that the
applicant’s
retrenchment was based on a genuine economic
rationale and that it was not merely a sham. I accordingly find that
the applicant’s
retrenchment was substantively fair.
The fourth issue: was the applicant’s
retrenchment procedurally fair?
In argument, Mr Seleka submitted that, in effect, no
process of consultation at all had been followed by MTN, and also
made reference
to certain of the points set out in paragraph 81
above under this head. Mr Brassey, in turn, submitted that the
applicant had
stated in evidence that the process of consultation
was not followed, but that she was forced to accept that one-on-one
consultations
were held. He also made reference to the applicant’s
complaint that she was not given the CLD budget, but submitted that

it is plain that this document was irrelevant to the issue of
restructuring and was required only to support her disclosure.
In
the result, he submitted that the applicant’s retrenchment was
procedurally fair.
In my view, the
consultation process suffered from three serious short comings.
Firstly, in terms of section 189 of the LRA, the
process of
consultation over a retrenchment commences with a section 189(3)
notification. The applicant was issued with such
a letter on 2 June
2011. But by that time, it was a
fait
accompli
(what with the adoption of the
final structure proposed by Madzonga) that the applicant’s
position was redundant (it having
been done away with). That is a
decision that ought to have been made further to a process of
section 189 consultation –
instead, it was the point from
which the section 189 process commenced.
Secondly, the
section 189(3) letter issued to the applicant contained an
invitation to her to consult with MTN, and prevailed
upon her to
‘please email your questions, suggestions and requests to
Clarissa Ross so that we can respond to them’.
In accordance
herewith, on 6 June 2011, the applicant sent an email to Ross in
which, as stated above, she pertinently raised
the complaint that
MTN was getting ‘rid of me because of the disclosure of a
possible impropriety within the meaning of
[the PDA]’.
Although she replied to this email (which she copied to Madzonga and
Mokoena), Ross did not deal at all with
this very serious complaint.
According to Madzonga, he would have expected Ross to do so
33
and to have brought the complaint pertinently to his
attention. To make matters worse, having been sent the applicant’s

email, neither Madzonga nor Mokoena paid attention to it. In the
result, the applicant was made to appear before the interview
panel
on 9 June 2011 (which effectively constituted part of the
consultation process) comprising,
inter alia,
Madzonga, in circumstances where he accepted that his
recusal was appropriate (but was not undertaken because he said he
had not
read the applicant’s email). To my mind, both this and
MTN inexplicable failure to deal with the applicant’s
complaint
raised in the course of the consultation process
constitutes a serious deficiency. (It should also be mentioned that
MTN did
not react to the applicant’s email of 12 May 2011 or
to her CCMA referral of 14 June 2011.)
On first principles, where an employee who makes a
protected disclosure faces retrenchment and (incorrectly, but
perhaps understandably)
attributes her selection for retrenchment to
having made the protected disclosure, the employer must go out of
its way during
the consultation process to allay any and all such
fears – otherwise the consultation process will be robbed of
its legitimacy
and the objective of a joint consensus-seeking
process wholly undermined. In this case, MTN did nothing of the
sort.
Thirdly, at best for MTN, the entire section 189
consultation process following the issuing of the section 189(3)
letter on 2
June 2011 comprised the following: the selection
interview on 9 June 2011; the communication of the results on 10
June 2011;
and the issuing of notice of retrenchment on the same
day. This by no means complied with the ‘compulsory’
procedure
set out in MTN’s retrenchment policy, which provides
for three consultation meetings and a set timetable. To compound
matters,
the applicant’s notice of retrenchment, which was
issued on a Friday (10 July 2011), gave the applicant until the
Monday
(13 June 2011) to make representations on the proposal ‘by
when we intend the consultation process to be complete’.
(In
these circumstances, including that the serious complaint raised by
her remained unaddressed, it is not surprising that the
applicant
chose instead to refer a dispute to the CCMA on 14 June 2011).
In the result, I find that the applicant’s
retrenchment was procedurally unfair.
The fifth issue: what relief should be afforded to
the applicant?
Having found the applicant’s dismissal
procedurally unfair, in terms of sections 193 and 194 of the LRA, I
have the discretion
to decide whether or not to award the applicant
compensation, and, if I decide to do so, the discretion to award her
up to 12
months’ remuneration as compensation on the basis of
what is just and equitable in all the circumstances.
In
Johnson
& Johnson (Pty) Ltd v Chemical Workers Industrial Union
(1999) 20 ILJ 89 (LAC),
34
the LAC held as follows about the nature of
compensation for procedural unfairness:
‘
The compensation for the wrong
in failing to give effect to an employee’s right to a fair
procedure is not based on patrimonial
or actual loss. It is in the
nature of a
solatium
for the loss of the
right, and is punitive to the extent that an employer (who breached
the right) must pay a fixed penalty for
causing that loss. In the
normal course a legal wrong done by one person to another deserves
some form of redress. The party who
committed the wrong is usually
not allowed to benefit from external factors which might have
ameliorated the wrong in some way
or another.’
35
In the
circumstances of this case, there can be little doubt that an award
of compensation is warranted. Regarding the quantum
thereof, it
seems to me that there are, in the main, two factors to be
considered: the degree of MTN’s departure from the

requirements of a fair procedure; and the applicant’s
conduct.
36
The fact that the applicant did not suffer substantial
patrimonial loss as a consequence of her retrenchment because she
gained
alternative employment relatively quickly is not relevant
given that compensation for procedural unfairness is a
solatium
(see
Johnson & Johnson
(supra)
).
To my mind, the degree of MTN’s departure from
the requirements of a fair procedure was – in the peculiar
circumstances
of this case – serious, and the applicant did
not conduct herself badly during the consultation process (such as
it was)
so as to warrant a reduction in compensation.
In all the circumstances, I am of the view that an
award of six months’ remuneration as compensation for the
applicant’s
procedurally unfair retrenchment is just and
equitable.
The sixth issue: is the applicant entitled to an
order that she be allowed to exercise certain share rights?
In keeping with the fact that little was made of this claim in
evidence, Mr Seleka said nothing about it in his heads of argument

save for recording the relief sought by the applicant, and did not
pursue the issue in oral argument. In the circumstances, I
find that
the applicant has not made out a case in relation to her share
rights claim.
Order
[115] In the premises, the following order is made:
1) the applicant’s dismissal by the first
respondent was not automatically unfair;
2) the applicant’s dismissal by the first
respondent was substantively fair;
3) the applicant’s dismissal by the first
respondent was procedurally unfair;
4) the first respondent shall pay the applicant
six months’ remuneration as compensation for her procedurally
unfair dismissal;
5) the applicant’s claim in relation to her
share rights is dismissed;
6) the first respondent shall pay half of the
costs of the action.
________________________________________
A.T MYBURGH
ACTING JUDGE OF THE LABOUR COURT
For the applicant: PG Seleka on the instruction of Eversheds
For the respondents: MSM Brassey SC with T Manchu on the instruction
of Mashiane Moodley Monama
1
PricewaterhouseCoopers.
2
Group
executive.
3
General
manager.
4
Human
resources.
5
Chief
corporate services officer.
6
Chief
marketing officer.
7
Chief
technical officer.
8
Chief
information officer.
9
Chief
financial officer.
10
Mergers
and acquisitions.
11
The
incumbent’s name did not feature in evidence.
12
Business
risk management.
13
South
and Eastern Africa.
14
Vice
president.
15
As
stated above, he is currently the
GE: business risk
management of the MTN Group.
16
Chief
executive officer.
17
Managing
director.
18
The
acronyms CTI and CTO are used interchangeably in the documentation /
evidence.
19
Labour
Relations Act 66 of 1995
.
20
Commission
for Conciliation, Mediation & Arbitration.
21
Protected
Disclosures Act 26 of 2000
.
22
Section
4(2)(a)
of the PDA provides likewise.
23
Also
reported at
[1999] 10 BLLR 1005
(LAC).
24
Labour
Appeal Court.
25
At
para 32. Cited with approval in
Kroukam
v SA Airlink (Pty) Ltd
(2005) 26
ILJ
2153 (LAC);
[2005] 12 BLLR 1172
(LAC) at para 26.
26
Also
reported at
[2012] 10 BLLR 1001
(LAC).
27
Citing
Maimela v UNISA
(2010)
31
ILJ
121
(LC) at para 32.
28
At
para 15.
29
These
being amongst the points advanced by Mr Seleka in seeking to
establish that the applicant’s dismissal was automatically

unfair.
30
Also
reported at
[2013] 3 BLLR 255
(LAC).
31
Also
reported at
[2000] 2 BLLR 138
(LAC).
32
At
para 18. Quoted at para 26 of
Kotze
(supra)
.
33
She
was clearly required to do so in terms of
section 189(6)(a)
of the
LRA.
34
Also
reported at
[1998] 12 BLLR 1209
(LAC).
35
At
para 41.
36
Alpha
Plant & Services (Pty) Ltd v Simmonds & others
(2001) 22
ILJ 359 (LAC);
[2001] 3 BLLR 261
(LAC).