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[2014] ZALCJHB 96
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Ngobeni v Minister of Communications and Another (J08/14) [2014] ZALCJHB 96; (2014) 35 ILJ 2506 (LC) (3 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: J 08/14
WISANI
EVIDENCE
NGOBENI Applicant
and
MINISTER
OF
COMMUNICATIONS First
Respondent
DIRECTOR-GENERAL
- DEPARTMENT
OF
COMMUNICATIONS Second
Respondent
Heard:
20 March 2014
Delivered:
3 April 2014
Summary:
Protected Disclosure Act: - Principles re-stated. Even in
circumstances where a protected disclosure
has been made in good
faith, a whistle-blower may still not be granted final relief if
requirements of such an order are not met.
A finding that intended
disciplinary action constitutes an occupational detriment cannot be
made where allegations of impropriety
have been levelled against the
whistle-blower.
JUDGMENT
TLHOTLHALEMAJE,
AJ
INTRODUCTION:
[1]
In his article, Evan Pickworth proclaimed that;
“
South
Africa’s whistle-blowing framework has received the highest
possible rating of three stars in a report by global law
firm DLA
Piper for providing express protection to those making legitimate
disclosures. It means South Africa trumps Germany, France,
Hong Kong
and Australia and is on a par with the laws in the US, UK and
China.”
[1]
[2]
In the light of such “feel-good” news, as South Africans,
we should ordinarily be in self-congratulatory mood and
patting
ourselves at the back for having trumped such illustrious nations
known generally for clean governance, and also being
on par with such
good company in the field of whistle-blowing. The irony however is
that our whistle-blowing framework does not
always and immediately
provide the protection whistle-blowers expect and deserve. Given the
various powerful political forces and
interests at stake in the
scramble to lay hands on the public purse, that valiant act of
exposing malfeasant within the public
service might be a career
limiting move if not the beginning of a long nightmare. The
well-known matter of
Charlton
v Parliament of the Republic of South Africa
[2]
is a case in point. Just to recap, honest Mr. Charlton exposed all of
those “Honourable” Members of Parliament involved
in the
“Travelgate” scandal in April 2003. Some of those
“Honourable” Members who had committed fraud on
a grand
scale owned up, and re-paid the ill-gotten gains. Some were
‘disciplined’, whilst others went about audaciously
with
their lives and regarded the whole episode and scandal as a non-event
if not a big joke. As for honest Mr. Harry Matthew Charlton
though,
he came out second best for causing trouble, and was subsequently
involved in a protracted battle to set aside his unfair
dismissal.
[3]
It needs to be emphasised however that all is not doom and gloom. In
the face of the powerful, greedy and politically connected
officials
within the public service, whose past time is looting public funds,
there will always be honest and brave South Africans
in the form of
whistle-blowers. They will take upon themselves to continue to expose
the rot and those public officials with itchy
fingers. These are our
unsung heroes and heroines, the faithful servants of the people of
our beloved country. They should be commended,
encouraged and
supported in their quest for making public officials accountable,
with the acknowledgement that they continue do
so at great risks to
themselves and their careers.
[4]
Following the dismantling of the evil system of apartheid, sadly in
its stead, we have an even more evil and sustained system
and culture
of fraud, theft, corruption, nepotism, and other forms of malfeasant
committed by the very same people entrusted with
the protection of
the public funds. The whistle-blowers are patriotic individuals, who
are now the face of our new struggle against
such evil and wanton
looting. These are public servants who are taking the meaning of
“public service” to new levels,
and who are prepared to
practice and uphold the principle of “
Batho
Pele”
rather than merely paying lip service to it. As Pillay J observed in
Tshishonga
v Minister of Justice & Constitutional Development &
another
[3]
;
“
Whistle-blowers
are not
impipis
,
a derogatory term reserved for apartheid era police spies.
Whistle-blowing is neither self-serving nor socially reprehensible.
In recent times its pejorative connotation is increasingly replaced
by openness and accountability. Employees who seek to correct
wrongdoing, to report practices and products that may endanger
society or resist instructions to perform illegal acts, render a
valuable service to society and the employer. Still, of 230
whistleblowers in the United Kingdom and the USA, a 1999 survey found
that 84 percent lost their jobs after informing their employer of
fraud, even though they were not party to it” (references
omitted)
[5]
The applicant in this case is one of those brave South Africans. He
took upon himself, at great cost, to expose malfeasant in
his
department. As a direct consequence of the disclosures he made, the
Minister of the Department of Communications (“The
Department”), Mr. Yunus Carrim took appropriate action, and the
President has, on 20 February 2014, since signed a Proclamation
initiating the Special Investigation Unit’s investigations into
the allegations.
[6]
Brave and patriotic the applicant may have been, the matter however
did not end with that simple protected disclosure. He now
finds
himself caught in the “Charlton syndrome”. He has
approached the court for a declaratory order, seeking
that the
disclosures he made during the execution of his duties be deemed to
qualify for protection in terms of the provisions
of the Protected
Disclosure Act
[4]
(“The
PDA”). Most importantly, he further seeks an order prohibiting
the Minister and the Director-General from subjecting
him to
occupational detriment in contravention of section 3 of the PDA. In
this regard, it is is common cause that the respondents
have levelled
allegations of misconduct against the applicant, and he has already
made representations as to the reason he should
not be suspended.
[7]
At the end of the hearing of this application, the court made a
request to the respondents that any disciplinary measures intended
against the applicant be held in abeyance pending delivery of this
judgment. The court is grateful to both the respondents’
counsel for conveying the court’s request to the respondents.
[8]
The respondents opposed the application and argued that firstly, the
disclosures were not made in good faith; and secondly,
the applicant
has not been subjected to any occupational detriment as contemplated
in the PDA. The respondents further argue that
there is no causal
relationship between such disclosures as have been made by the
applicant and the pending disciplinary enquiry
against him for
alleged misconduct. It is further the respondents’ contention
that the allegations raised by the applicant
are presently the
subject of investigation by the Special Investigative Unit, and that
similarly the alleged misconduct by the
applicant was investigated
and is the subject of a pending disciplinary enquiry.
The
relevant provisions of the Protected Disclosure Act (“The
PDA”):
[9]
In
Radebe
and Another v Premier, Free State and Others
[5]
Mlambo JP stated the following;
We must remind ourselves
at the outset that the PDA’s primary sphere of focus is the
employment/working environment regarding
the disclosure of
information about unlawful and/or irregular conduct by the employer
and/or its employees. The PDA further provides
primarily for the
protection of employees from being subjected to what is referred to
as an occupational detriment in the PDA for
having made such a
disclosure as well as suitable remedies to employees who have
suffered such an occupational detriment on account
of having made a
disclosure that enjoys the protection of the PDA. Provision is made
in keeping with the objects of the PDA for
procedures in terms of
which employees may disclose information regarding such conduct.
[10]
In its preamble, the PDA recognized that criminal and other irregular
conduct in organs of state and private bodies are detrimental
to
good, effective, accountable and transparent governance in organs of
state and open and good corporate governance in private
bodies, and
can endanger the economic stability of the Republic and have the
potential to cause social damage. In the mind of its
drafters, it was
emphasized that every employer and employee has a responsibility to
disclose criminal and any other irregular
conduct in the workplace
and that every employer has a responsibility to take all necessary
steps to ensure that employees who
disclose such information are
protected from any reprisals as a result of such disclosure
[6]
.
[11]
Section 1 of the PDA provides that;
'disclosure'
means any disclosure of information regarding any
conduct of an
employer
,
or an
employee
of that employer, made by any
employee
who has reason to believe that the information concerned shows or
tends to show one or more of the following:
(a)
That a criminal offence has been committed,
is being committed or is likely to be committed;
(b)
that a person has failed, is failing or is
likely to fail to comply with any legal obligation to which that
person is subject;
(c)
that a miscarriage of justice has occurred,
is occurring or is likely to occur;
(d)
that the health or safety of an individual
has been, is being or is likely to be endangered;
(e)
that the environment has been, is being or
is likely to be damaged;
(f)
unfair discrimination as contemplated in
the Promotion of Equality and Prevention of Unfair Discrimination
Act, 2000 (Act 4 of 2000);
or
(g)
that any matter referred to in paragraphs
(a) to (f) has been, is being or is likely to be deliberately
concealed;
'impropriety'
means any conduct which falls within any of the
categories referred to in paragraphs (a) to (g) of the definition of
'disclosure',
irrespective of whether or not-
(a)
the impropriety occurs or occurred in the
Republic of South Africa or elsewhere;
(b)
the law applying to the impropriety is that
of the Republic of South Africa or of another country;
'protected
disclosure'
means a disclosure made to-
(a)
a legal advisor in accordance with section
5
(b)
an employer in accordance with section 6
(c)
a member of Cabinet or of the Executive
Council of a province in accordance with section 7.
(d)
a person or body in accordance with section
8
(e)
any other person or body in accordance with
section 9
BACKGROUND:
[12]
At the onset, it needs to be stated that there can be no doubt in
this case that the applicant has indeed made a disclosure
regarding
allegations of impropriety on the part of senior officials in the
department. It can further not be doubted that the
information
disclosed falls within the realm of subsections (a); (b) of the
definition and further that the disclosure was made
in respect of
“improprieties” as defined. The disclosures revealed
possible breaches of legal obligations and criminal
conduct. This
conclusion is based on the background facts to follow and the fact
that following this disclosure, the Minister had
acted on the
allegations.
[13]
The respondents’ contention however is that the veracity of the
allegations of impropriety was not relevant to these
proceedings. The
focus was instead shifted to the allegations of misconduct against
the applicant. It is in that light that the
respondents either denied
knowledge of some of the allegations or alternatively failed to deal
with them. It is however my view
that the allegations and disclosures
made by the applicant cannot simply be brushed aside for the purposes
of a proper determination
of this application. This is so in view of
the applicant’s contention that he was subjected to relentless
occupational detriment,
and further since it is within the context of
the timing of these disclosures that a determination has to be made
as to whether
the applicant is entitled to the relief he seeks or
not.
[14]
South Africa has over time, been preparing to move its terrestrial
broadcasting from analogue to a digital platform. The department
being responsible for the implementation of the Broadcasting Digital
Migration (BDM) Process entered into a Memorandum of Understanding
with Media Corner (Pty) Ltd, on 29 October 2012. The agreement was to
be in force for three years, and Media Corner was tasked
with the
public awareness campaign surrounding the BDM. In this regard, it was
to develop and implement a comprehensive public
relations strategy
for BDM over a three year period until 2015.
[15]
The applicant was employed with effect from February 2010 as a Chief
Director Communications in the Premier’s Office
in the Free
State provincial government. In April 2013, he was seconded to the
Department of Communications for a period of 12
months in terms of
section 15 of the Public Service Act, 1994. On 24 June 2013, the then
Minister of Communications, Ms. Dina Pule,
had submitted a request to
the Premier of the Free State Province to transfer the applicant
permanently to the position of Chief
Director Marketing and
Communications in the department. Premier Magashule of the Free State
had approved the transfer on 8 July
2013.
[16]
In his position as Chief Director Marketing and Communications, the
applicant was
inter alia
, responsible for the monitoring and
control of the finances of the Chief Directorate; authorization of
payments to service providers
for services rendered within the limit
of R1 million; the prevention of unauthorized, irregular and
fruitless and wasteful expenditure
and losses, and overspending. The
applicant reported to the Deputy Director-General, Dr. Sam Vilakazi
(“Vilakazi”),
who in turn reported to Ms. Rosey Sekese
(“Sekese”), the Director-General. Sekese had signed the
contract with Media
Corner on behalf of the Department.
[17]
The applicant’s concerns surrounding financial impropriety
within the department came about in July 2013 when he first
received
a copy of an expenditure statement dated 4 July 2013 pertaining to
the financial status of his directorate. His previous
requests for
such statement since he joined the department had been unsuccessful.
This statement covered the period 1 April 2013
to 30 June 2013, and
showed that during that period, the Chief Directorate incurred an
expenditure totalling in excess of R34 million
for what is known as
“DTT Awareness Campaign”. The statement further showed
that an order totalling in excess of R2.9
million had been made
towards the awareness campaign, and that a further financial
commitment in excess of R4 million was also
recorded. This implied
that a further amount of R6.9 million was still to be made during the
2013/2014 financial year. Having analysed
the expenditure
statement, it concerned the applicant that the Chief Directorate did
not even have a budget allocated to
it, yet it was already more than
R50 million in the red. Furthermore, its total expenses were already
totalling in excess of R39
million with further outstanding
commitments amounting to R10.6 million.
[18]
Of particular concern to the applicant was the fact that an amount of
R34 million had already been spent on the awareness campaign,
and as
the money was coming from the cost centre under his responsibility
but without his knowledge and approval, he had made enquiries
with
the department’s finance unit. The finance unit had then
confirmed that the whole amount of R34 million was paid to
Media
Corner. Officials of the unit could however not produce records or
reports motivating for the payment for work done by Media
Corner.
[19]
The applicant then had a discussion with Ms. Lindiwe Nkwe (“Nkwe”),
the department’s Director, responsible
for Supply Chain Unit
and Contract Management. Nkwe informed the applicant that the
department was obliged to pay to Media Corner
an annual retainer in
excess of R11.8 million for a period of three years. The payments
were to be made monthly notwithstanding
the fact that Media Corner
was not rendering any service to the department. Furthermore, Nkwe
had informed the applicant that all
the payments made to Media Corner
were authorised by Vilakazi.
[20]
Having been provided with a copy of the contract between the
department and Media Corner, the applicant analysed it and discovered
that in its bid document, Media Corner had proposed an advertising
expenditure of R756 million over a period of three years. The
proposed expenditure was accepted and approved by Sekese despite the
fact that the department did not have the budget to meet the
proposed
expenditure.
[21]
The applicant held the view that Sekese had committed gross financial
misconduct in contravention of the Public Finance Management
Act in
approving the proposed expenditure of R756 million. From the contract
itself, it became apparent to the applicant that Media
Corner was not
doing any work for the department but was presenting invoices for
payment which Vilakazi was authorising for payment
and which the
department had duly paid. The contract however did not allow for
payment to be made without services being rendered,
and thus invoices
submitted should not have been authorised for payment by Vilakazi.
[22]
The applicant also discovered that Media Corner was billing the
department a monthly retainer of R983 335.67 without any billable
activities. This amount emanated from the contractual provision in
terms of which Media Corner was to be paid an annual retainer
fee of
R11.8 million inclusive of VAT. The applicant had also discovered
that Media Corner’s invoices were addressed directly
to
Vilakazi even though he was not involved in the day to day functions
of the Chief Directorate.
[23]
Having further regard to the expenditure statement of 4 July 2013,
the applicant had discovered that of the R34 million already
paid to
Media Corner, about R6.8 was paid specifically for the retainer, and
he had come to the conclusion that there existed misconduct
and
irregular dealings between Vilakazi and Sekese, and Media Corner on
the other hand. The applicant had again approached Nkwe
and informed
her of his findings that irregular payments had been made. Nkwe had
not provided him with documents supporting payments
to Media Corner,
and had told him to discuss the matter with Vilakazi as he was the
one who had approved the payments. Having approached
Vilakazi, the
latter had informed him that he (Vilakazi) had dealt directly with
Media Corner as the applicant’s predecessor
was incompetent.
Vilakazi had also undertaken to provide the applicant with the
relevant documentation, but to date, none had been
forthcoming.
[24]
Ms. Dina Pule was replaced by Minister Carrim on 10 July 2013. The
applicant’s contention was that the crusade to drive
him out of
the department started at that point. On 18 July 2013 he was invited
to the Minister’s office for a meeting and
was informed that
Sekese and Vilakazi had furnished the Minister with a memorandum in
which they had recommended that;
a.
The Minister should revoke the decision of
the former Minister to transfer him to the department due to
non-compliances within the
Chief Directorate.
b.
The department should not pay a service
provider who had provided event management services for an event held
by the former Minister
in Limpopo on 21 June 2013 due to alleged
discrepancies in the invoice submitted by the service provider.
[25]
The applicant informed Minister Carrim that the memorandum appeared
to be an attempt to divert attention away from impropriety
involving
Sekese and Vilakazi, and was clearly designed to turn the Minister
against him. He further informed the Minister of the
irregular
payments to Media Corner, and informed him that he was targeted
because of the disclosures he had made and his persistent
questioning
of the payments to Media Corner. Minister Carrim informed him
that he had referred the memorandum to Deputy Minister
Stella
Ndabeni-Abrahams who was delegated with dealing with internal labour
related issues.
[26]
On 22 July 2013, Vilakazi caused a letter to be written to the
applicant, and informed him that in view of non-compliance issues
emanating from his Chief Directorate in relation to events, Sekese
had taken the decision to with immediate effect, temporarily
withdraw
his appointment as Responsibility Manager for the Communications and
Marketing Chief Directorate until further notice.
Sekese appointed Ms
Busiswa Mlandu in the applicant’s position. At the time, the
applicant was still staying at a hotel pending
his final
re-settlement from Free State. On 30 July 2013 he arrived at his
hotel and was informed that Vilakazi’s personal
assistant had
called and requested to be provided with his (applicant’s)
personal private details. The applicant complained
to the Minister
and his Deputy about the invasion of his privacy. However nothing
came out of this complaint.
[27]
In August 2013 the applicant had met with the Deputy Minister who had
informed him that Sekese had raised various issues in
a memorandum
addressed to her pertaining to alleged violations of the departmental
Supply Chain Policy during the preparation of
a departmental event
held in Limpopo Province on 21 June 2013. The applicant was informed
that he had allegedly insisted on providing
names and contact details
of prospective suppliers for the event in violation of the policy.
The applicant was also asked to submit
a report pertaining to the
irregularities in respect of Media Corner. The applicant had
immediately submitted a detailed report
in respect of the Media
Corner arrangements. He simultaneously submitted a report in respect
of an event held in Witbank. In his
detailed Media Corner report, he
also recommended that a forensic investigation should be
commissioned.
[28]
On 6 August 2013, the applicant wrote a letter to Sekese, demanding
the reversal of the decision to temporarily withdraw his
appointment
as the Responsibility Manager for the directorate. This letter was
copied to the Deputy Minister. On 13 August 2013,
the applicant had
met with Mr. Sthembiso Nkatha, the Chief Director Legal Services in
the department, and was provided with a report
by Vilakazi dated 5
August 2013, which contained the same allegations levelled against
him. The applicant had provided Nkatha with
documents surrounding
that event, and e-mails showing that it was supply chain management
that had in fact requested him to submit
names and contact details of
service providers. He had also provided Nkatha with an updated
detailed Media Corner report, which
showed that payments to Media
Corner had continued in July 2013 and that the total amount paid had
since increased to R36. 8 million.
He had also asked Nkatha to
forward the report to the Minister and his Deputy.
[29]
On 14 August 2014, Sekese had informed the applicant in writing that
a decision was taken to reinstate his delegated powers
as the
Responsibility Manager of the Chief Directorate even though he still
needed to account for his non-compliance. On 27 August
2013, the
applicant had submitted a request to the Director, Human Resource
Service and Administration (Rathata) in respect of
assistance to
remove his furniture from Free State to Gauteng. Rathata had
responded and informed him that he had received instructions
not to
do anything about the request.
[30]
On 6 September 2013, Minister Carrim called the applicant to a
meeting and informed him that “some powerful people within
the
department” did not want him and were putting pressure on the
Minister to re-deploy him. The Minister further told him
that he was
seen as being “too soft on him”, and that he (applicant)
was not wanted due to his close association with
former Minister
Pule. The Minister also informed the applicant that he had initiated
a process to re-deploy him to the Department
of Public Service and
Administration, and that if he did not want to go to that department,
he would engage with the Premier of
the Free State so that he could
be transferred back to that province. The applicant had informed the
Minister that he would prefer
to stay in Gauteng where his family
was. The Minister had also informed him that he would be assisted
with his resettlement costs.
When no such assistance was forthcoming,
the applicant transported his furniture at his own cost from
Bloemfontein to Pretoria.
[31]
On 24 September 2013 the applicant was directed to attend a meeting
at Sekese’s office where he was informed of a decision
by
Minister Carrim to revoke the decision of former Minister Pule to
transfer him to the department. The Minister also intended
to
transfer him back to the Free State provincial government with effect
from 1 October 2013. The applicant was further informed
that he had
six days to report for duty in Bloemfontein and to vacate his
position in the department by 30 September 2013. Sekese
had declined
to discuss the reasons in this regard or the applicant’s
personal circumstances. She further told the applicant
that the
transfer was a foregone conclusion as Minister Carrim had already
approved it.
[32]
On 25 September 2013, Sekese had confirmed what was discussed the
previous day in writing, and had also addressed a letter
to the
Director General (“Ralikontsane”) in the Department of
the Premier the Free State informing him that the applicant
would be
returning to his office with effect from 1 October 2013. Ralikontsane
had responded on 26 September 2013 and informed
Sekese that it was
not possible for the applicant to return back to his office in the
Free State as he was permanently transferred
as per the request of
former Minister Pule. Notwithstanding the response, Sekese insisted
in a letter to Ralinkontsane on 27 September
2013 that the applicant
should return to the Free State as certain processes relating to his
transfer had not been completed.
[33]
Notwithstanding the fact that Ralinkontsane had not agreed to the
applicant’s return to Free State, Sekese had addressed
an email
to all staff members informing them that the applicant’s
secondment to the department had been terminated ending
30 September
2013, and that he had returned to the Free State. Mlandu was
appointed as Acting Chief Director Communications.
[34]
On 1 October 2013, the applicant addressed a letter to Sekese, to
challenge the fairness of the decision to transfer him to
the Free
State. He was also denied access to his office. On 9 October 2013 the
applicant filed a dispute with the GPSSBC. He also
filed an urgent
application in this court for interim relief under case number
J2277/13. The matter was scheduled for a hearing
on 15 October 2013
and was postponed by agreement between the parties pending settlement
negotiations. On 16 October 2013, Sekese
through the office of the
state attorney, submitted a settlement proposal to the applicant’s
legal representative, offering
him a post in the DPSA. The applicant
had rejected the offer. On 8 November 2013 despite the matter still
pending before the court,
Sekese had placed an advertisement in the
Mail and Guardian newspaper, inviting applications for the
applicant’s position.
[35]
The matter before the court was again enrolled for a hearing on 19
November 2013 and both parties agreed to pursue settlement
negotiations. This had resulted in an agreement in terms of which
Sekese undertook not to fill the position pending the final
determination of the matter. The Minister and Sekese further
undertook to offer the applicant a vacant position in the Government
Communication and Information Systems (GCIS) in writing on or before
20 November 2013. However the offer was not made and the matter
ended
up in court again on 22 November 2013. The court, per Shaik AJ had
ordered the Minister and Sekese not to fill the
position of
Chief Director and to allow the applicant to return to work and to
give him access to his office and the necessary
equipment to perform
his duties in the capacity of Chief Director Marketing and
Communications.
[36]
The applicant had returned to work on 22 of November 2013 and was
given access to his office. Sekese had however not withdrawn
the
appointment of Mlandu, and the applicant was unable to perform his
functions. The dispute referred to the GPSSBC was heard
on 8 November
2013 but remained unresolved. A certificate of outcome was then
issued. On 2 December 2013, a Mr. Mhambi of the state
attorney’s
office had on behalf of the Minister and Sekese, addressed a letter
to the applicant offering him a position of
Head of Department:
Business Development and Marketing and Communications at the National
Electronic Media Institute of South Africa
(NEMISA). This offer
however was unsuitable to applicant. He had also established that the
offer had not been approved by the board
of NEMISA.
[37]
On 2 December 2013, the applicant was advised that an investigation
initiated by Sekese was to be conducted into grievances
lodged by his
subordinates, who had accused him of being rude and autocratic. The
investigation, in accordance with the instructions
of Sekese was to
be conducted and finalised before the applicant could resume his
duties. On 6 December 2013, the applicant met
with the Minister and
the latter had informed him that investigations into allegations of
impropriety relating to Media Corner
had been instituted. Despite
such investigations the applicant was during the course of December
2013 provided with information
from the finance unit of the
Department showing that irregular payments to Media Corner had in
fact continued. In this regard,
between 8 July 2013 and 29 November
2013 the department had paid to Media Corner an additional amount in
excess of R6.3 million.
This was despite the fact that there was no
evidence that work was commissioned to Media Corner to justify the
payment of that
amount.
[38]
On 12 December 2013 the applicant was informed to attend a meeting in
Sekese’s boardroom. Upon his arrival he had met
with Andre
Bouwer from a company called Nexus Forensic Services (“Nexus”).
Bouwer had informed him that his company
was appointed by Sekese to
conduct an investigation into allegations that he had violated the
supply chain policy of the Department
during the preparation of an
event which was held in June 2013. The applicant met with Bouwer
again on 18 December 2013 and cooperated
in the investigations
despite expressing his reservations about its legitimacy.
[39]
On 9 January 2014, the applicant had again approached the Court with
this application. On 15 January 2014, Sekese had withdrawn
Mlandu’s
acting appointment. On 5 February 2014, Nexus had presented its
findings, and on 13 February 2014, the applicant
was issued with a
notice of precautionary suspension. He was asked to make
representations as to the reason he should not be suspended.
On the
same date, the applicant had made such representations despite his
complaint that the nature of the allegations against
him were vague
for meaningful representations to be made.
[40]
On 18 February 2014, the court per LaGrange J had directed that in
view of the matter now being opposed, it was to be postponed
to
enable the applicant to supplement his application by way of a
supplementary affidavit relating to his pending suspension. The
respondents were also directed to file any replying affidavit.
[41]
In his supplementary affidavit, the applicant had lamented the fact
that Sekese had allowed an unreasonable and unnecessary
time delay
between the discovery of the alleged infraction and the institution
of disciplinary action against him. In this regard
he pointed out
that on 22 July 2013 he was informed of Sekese’s decision to
temporarily withdraw his powers as the responsibility
manager for the
Chief directorate on the basis of allegations of non-compliance. The
allegations against him were reported by Vilakazi
on 5 August 2013.
However on 14 August 2013 after it was shown that the allegations
against him were unfounded and his powers were
reinstated and he was
allowed to continue performing his normal duties.
[42]
The applicant further submitted that his pending suspension was
baseless as Sekese still needed to investigate the matter further
as
indicated in the notice of precautionary suspension, and he had not
as yet received the findings of the Nexus investigation.
That
investigation according to the applicant was an abuse of power, a
fishing expedition and a crusade against him as there was
no evidence
that he had done anything wrong. The applicant further contended that
he had made a protected disclosure to members
of the Special
Investigating Unit (“SIU”) in regard to Sekese’s
dealings with Media Corner on 16 January 2014,
following upon his
initial disclosure of July 2013 to the Minister. The disclosures he
had made to the SIU included;
i.
Between October 2012 and November 2013,
Media Corner had submitted a total of 15 invoices with an amount
totalling in excess of
R60.9 million. These invoices, which were not
exhaustive, were irregularly authorised for payment by Vilakazi and
paid by the Department.
ii.
Expenditure control statement showed that
for the current financial year starting from 1 April 2013 to 22
January 2014, a total
amount of R40.7 million was paid to Media
Corner in respect of the Digital Migration awareness campaign.
iii.
There is an over-expenditure of more than
R6 million in the Chief Directorate even before the financial year
ended in March 2014.
iv.
R60 million was belatedly allocated as
total budget to the Chief Directorate for the awareness campaign, and
only R17 million was
remaining for that campaign, which has since
been ring-fenced for that campaign.
v.
Vilakazi and his personal assistant have
facilitated the irregular payment by authorizing the issuing of a
series of purchase orders.
vi.
Sekese had signed a number of contracts
with Media Corner and its sister company, Bagport South Africa,
including the “Digital
Migration Awareness contract”,
which contract did not go through a proper bidding process;
vii.
The “Talk Show” contract with
Media Corner on 28 March 2012 for an amount of R9.5 million without
following tender procedures.
viii.
“
Airport Advertising” contract
signed by Sekese on 15 March 2012 worth over R1 million with Bagport
SA without following tender
process.
[43]
The office of the Auditor General had according to the applicant,
conducted or is conducting an audit of the department’s
finances, and an interim audit has vindicated the disclosures made to
the SIU as well as his disclosures made to the Minister in
July 2013.
Amongst findings made are those in respect of several instances of
irregularities and violation of the PFMA in relation
to the Media
Corner contract for digital migration public awareness, and that the
auditors could not locate the supporting approval
from National
Treasury indicating that the award was within budgetary provision.
[44]
In regards to the above, the applicant submitted that the conduct of
Sekese constituted improprieties as contemplated by the
meaning of
impropriety in section 1 of the PDA; that the disclosure made showed
one or more of the categories referred to in paragraph
(a) to (g) of
the definition of disclosure in section 1 of the PDA; that such
disclosures constituted “disclosure of information”
in
accordance with section 6 of the PDA, and further that disciplinary
action instituted against him constituted an “occupation
detriment” as provided in the PDA. He further submitted that
there was a demonstrable nexus between his disclosures and the
disciplinary action currently being instituted against him.
RELEVANT
CASE LAW:
[45]
The respondents opposed the relief sought by the applicant on the
basis of the following three grounds;
i.
The disclosures were not made in good
faith,
ii.
The applicant has not been subjected to any
occupational detriment as contemplated in the PDA.
iii.
There is no causal relationship between the
disclosure as made by the applicant and the pending disciplinary
enquiry against him
for misconduct on account of procurement
irregularities and insubordination.
[46]
The applicant’s claim and what he seeks is in the form of a
final interdict. Effectively, if it is found that he had
indeed made
a protected disclosure and that the intended disciplinary proceedings
constitutes an occupational detriment, the respondents
would have no
further recourse insofar as the intended disciplinary action is
concerned. The requirements for a final interdict
are well known.
[7]
These are;
i.
A clear right;
ii.
An injury actually committed or reasonably
apprehended; and
iii.
The absence of another suitable remedy.
[47]
In applications of this nature and in the light of the disputes of
facts that may arise, it is trite that such disputes should
be
resolved in accordance with the principles enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[8]
.
Accordingly, where disputes of fact have arisen on the affidavits, a
final order, whether it be an interdict or some other
form of relief,
may be granted if those facts averred in the applicant's affidavits
which have been admitted by the respondent,
together with the facts
alleged by the respondent, justify such an order. In
New
Balance Athletic Shoe Inc v Dajee NO and Others
[9]
,
a decision referred to by the applicant in his written heads of
argument, Nugent JA in reference to the
Plascon-Evans
rules had stated the following;
‘…
.Those
rules manifest the principle that application proceedings are
intended for the resolution of legal issues. For that reason
final
relief will be granted only where the relief is justified by
undisputed facts (facts alleged by the applicant that are not
disputed, together with facts alleged by the respondent), though
there are exceptions, which applies as much where the respondent
bears the onus of proof.’
[10]
And
‘
But
the rule in Plascon-Evans is not blind to the potential for abuse. As
this court said in Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) “in the interests of justice, courts have been at pains
not to permit unvirtuous respondents to shelter behind patently
implausible affidavit versions or bald denials”…’
[11]
[48]
The onus is on the applicant to prove that he is entitled to the
remedy he seeks
[12]
.
Conclusions have already been made that the applicant had indeed made
a disclosure as defined in the PDA. The respondents have
conceded
there is no reason to submit that the applicant did not have a
reasonable belief in the substantial truth of his allegations.
A
clear right:
[49]
In the light of it being common cause that a disclosure of
improprieties was made, the only issue that the applicant needs
to
establish is whether the intended disciplinary hearing will be an
occupational detriment on account that the disclosure was
protected.
This implies a consideration of the facts to determine whether he has
established a clear right in terms of the PDA.
[50] Section 3 of the PDA
provides that;
Employee
making protected disclosure not to be subjected to occupational
detriment
.
No
employee
may be
subject to any
occupational detriment
by his or her
employer
on account, or partly on account, of having made a
protected
disclosure.
[51]
Section 1 of the PDA defines
'occupational detriment'
, in
relation to the working environment of an employee, as-
(a)
being subjected to any disciplinary action;
[52]
Section 6 (1) of the PDA in respect of a protected disclosure to an
employer refers to “Any disclosure made in good faith”.
The same requirement is found in section 7 in respect of disclosures
made to members of Cabinet or the Executive Council, in section
8 (1)
(a) in respect of the Public Protector, 8 (1) (b) in respect of the
Auditor General or 8 (1) ( c ) in relation to a person
or body
prescribed for the purposes of the section 8.
[53]
From the above provisions, it follows that the applicant must
establish that the intended disciplinary constitutes an occupational
detriment on the grounds that such action is taken “on account,
or partly on account, of having made a disclosure”,
which in
addition, was made in “good faith”. In
Tshishonga
[13]
the meaning of “good faith” was considered in the
following terms;
‘
By
setting good faith as a specific requirement, the Legislature must
have intended that it should include something more than reasonable
belief and the absence of personal gain. An employee may reasonably
believe in the truth of the disclosures and may gain nothing
from
making them, but his good faith or motive would be questionable if
the information does not disclose an impropriety or if
the disclosure
is not aimed at remedying a wrong’
Good faith is a finding
of fact. The court has to consider all the evidence cumulatively to
decide whether there is good faith or
an ulterior motive, or, if
there are mixed motives, what the dominant motive is.
A whistleblower is
unlikely to have 'warm feelings' about the wrongdoing or person
against whom disclosure is made. At the other
extreme a whistleblower
who is overwhelmed by an ulterior motive, that is, a motive other
than to prevent or stop wrongdoing, may
not claim the protection
under the PDA. The requirement of good faith therefore invokes a
proportionality test to determine the
dominant motive.’
[54]
It follows that factors such as lack of honest intention, malice,
ulterior motive, a quest for revenge, reckless abandon, a
quest for
self or others advancement, and attempts to divert attention from
one’s or others’ wrong doing and involvement
in criminal
or acts of misconduct will negate the requirement of good faith
[14]
.
In this regard, the onus will be on the employer to establish the
lack of good faith. The absence of good faith however does not
detract from the fact that a disclosure was made. Even if the
disclosure was made in pursuance of ulterior motives, it is still
incumbent upon the employer to investigate the veracity of the
allegations and to take appropriate steps where required
[15]
.
Where however it is found that a protected disclosure was made in
good faith, and it is still nevertheless established that the
whistle-blower himself or herself is or might be involved in acts of
impropriety, the question is whether he/she should be immune
from
answering to those allegations.
WAS
THE DISCLOSURE MADE IN GOOD FAITH?
[56]
This question is to be addressed within the context and time-line as
elaborated in the background material and the allegations
against the
applicant. The applicant’s contention was that the allegations
of impropriety against him are a direct result
of his protected
disclosure in regards to the Media Corner contract, whilst the
respondents contend that the real issue is that
the applicant was
himself investigated, and that the subject of the disciplinary action
is unrelated to and quite independent from
the disclosures. The
respondents’ contention was that the investigations against the
applicant originated before the disclosures
were made.
[57]
The facts relied upon by the respondents are as follows;
To
recap, the applicant was seconded to the department in April 2013. An
event was planned to take place in Nkowankowa on 21 June
2013 hosted
by the then Minister Pule. The respondents submit that the intended
disciplinary action emanate from alleged irregularities
surrounding
the procurement of the services for that event. The respondents
contend that on 24 June 2013, the department’s
finance unit had
received an invoice from a company called Blue Rain Drops Advertising
(“Blue Rain Drops”). On 26 June
2013, the department’s
finance had queried the invoice submitted by Blue Rain Drops, and in
particular, what appeared to
be inflated amounts charged on the
invoice. It is alleged that the applicant had nevertheless insisted
that the invoice be paid,
and this had caused Vilakazi to initiate an
internal investigation into the matter. Vilakazi had then on 17 July
2013, submitted
an internal investigation report on the concerns
raised by the finance unit surrounding the Nkowankowa event. It was
submitted
further that the applicant had only met the Minister and
his Deputy thereafter. On 5 December 2013, the State Law advisor had
provided
an opinion on the Nkowankowa event. The Nexus investigation
into the Nkowankowa event and the alleged improprieties on the part
of the applicant had commenced in December 2013. Findings were made
in that regard on 5 February 2014, followed by a full report
which
was submitted on 14 February 2014.
[58]
In the light of the above, it was the respondents’ contention
that the applicant made the disclosures for an ulterior
motive, thus
negating the requirement of good faith. It was submitted that the
applicant had an ulterior motive in that he had
raised the Media
Corner allegations to divert attention away from his involvement in
the irregular procurement of services for
the Nkowankowa event; and
that his disclosure was made after, and in response to allegations of
impropriety. To this end, it was
further submitted that employees who
use the provisions of the PDA to attempt to conceal or divert
attention away from their own
involvement in criminal or misconduct
activities should not receive protection in terms of the PDA.
[59]
The applicant’s response was that on the papers, the
respondents failed to provide evidence to demonstrate that he was
made aware of the concerns surrounding the Nkowankowa event, or that
he was requested to submit an explanation in regard to Vilakazi’s
report submitted on 17 July 2013. He had pointed out that the
respondents had conceded that he had met with the Minister on 18
July
2013. Although the Minister allegedly did not have recollection of
what had transpired in that meeting, the applicant’s
contention
was that the respondents had not rebutted the fact that he had made a
disclosure to the Minister on that day. The applicant
had confirmed
that he was informed by the Minister on 18 July 2013 of the
memorandum received from Vilakazi. He however contended
that the
allegations in that report were baseless, and that this is borne out
by the fact that no disciplinary proceedings were
pursued against him
at that point, and that it took 20 days from when the alleged
infractions against him were raised, and when
Vilakazi submitted his
report on 17 July 2013. At that time, he had already submitted a
detailed report on 8 July 2013 in respect
of the Media Corner
contract. His further contention was that it was Vilakazi, who sought
to use the allegations against him as
a means of silencing him and
having him removed from the department.
[60]
The applicant had further submitted that the respondents had only
provided a bald denial to his contention that his disclosure
was
first made to the Head of Supply Chain, Nkwe, and then to Vilakazi
early in July 2013 prior to escalating the matter to the
Minister.
EVALUATION:
[61]
The respondents seem to attach to much weight on the timing of the
disclosure as against the revelations of impropriety against
the
applicant in seeking a conclusion that firstly the disclosure was not
made in good faith, and secondly, in seeking to demonstrate
that the
intended disciplinary proceedings do not constitute an occupational
detriment. There is thus emphasis on form rather than
substance.
[62]
The applicant had submitted that the disclosure was first made to
Nkwe, and then to Vilakazi. The respondents’ contention
was
that there were merely queries made by the applicant, and besides,
one cannot make a disclosure to the purported wrongdoers
themselves.
Sekese in her answering affidavit had merely indicated that she had
no personal knowledge of the applicant’s
averments in this
regard, and yet denied same. The applicant had averred that he had
again approached Nkwe about irregularities,
and the latter was not
forthcoming or refused to provide the applicant with documents
supporting the payments to Media Corner
[16]
.
The applicant had the same discussions with Vilakazi, who had again
failed to provide the applicant with the relevant documents.
Sekese’s
response was again to deny knowledge of these contentions. Sekese’s
contention was that if these two individuals
had refused to cooperate
by giving the applicant the documents he required, the applicant
should have escalated the matter to her.
[63]
Nkwe did not file an answering or confirmatory affidavit to rebut
allegations against her. Vilakazi had filed a confirmatory
affidavit
in respect of the answering affidavit deposed to by Sekese. The above
events pertaining to encounters with Nkwe and Vilakazi
relate to the
period before 10 July 2013 when Ms. Dina Pule was removed. This is
borne out by the applicant’s averments
[17]
that in early July 2013, he had also raised other concerns regarding
weaknesses and apparent malpractices within the department’s
supply chain unit in respect of procurement of services for
departmental events. On 8 July 2013, he had submitted a report to
Vilakazi relating to a departmental event held in Witbank but that
had to be cancelled due to malpractices in the supply chain unit.
Vilakazi had not given him feedback in that regard. He had contended
that instead, Vilakazi, working with officials within the
supply
chain unit, embarked on a crusade to drive him out of the department.
The crusade started within days after the former Minister
was
recalled on 10 July 2013.
[64]
Sekese had in her answering affidavit conceded that she was aware of
the Witbank report but denied that any other concerns
were raised by
the applicant. Not much of the applicant’s allegations in
regards to irregularities were challenged. Sekese
in her answering
affidavit had either denied knowledge of the allegations or baldly
denied same. She had also denied that there
was a crusade to drive
out the applicant after the former Minister was removed from office.
Only Vilakazi had filed a confirmatory
affidavit in respect of
Sekese’s averments. In applying the
Plascon-Evans
rule,
and bearing in mind the caution alluded to in
Fakie NO v CCII
Systems (Pty) Ltd
as referred to in
New Balance Athletic
Shoe Inc v Dajee NO and Others
the respondents cannot be
permitted to shelter behind patently implausible versions or bald
denials. To this end, even if emphasis
is to be placed on form rather
than substance as sought by the respondents, it is found that its
contentions that the disclosures
in respect of the Media Corner were
made after concerns were raised in respect of the Nkowankowa event
are not plausible. As at
17 July 2013 when Vilakazi submitted his
report into allegations surrounding the Nkowankowa event, the
applicant had already made
the disclosure to Nkwe and Vilakazi.
[65]
The respondents had delegated the disclosures to Nkwe and Vilakazi as
mere queries. I have difficulties with this submission
in that
neither Nkwe nor Vilakazi had made such an averment in earnest. In
the face of such a decisive factor to their case, more
than a mere
denial was required from Vilakazi or Nkwe. The applicant had
confronted Nkwe and Vilakazi on two occasions with the
revelations
and concerns about Media Corner. Both had on the uncontested version
of the applicant, refused to cooperate. The only
inference to be
drawn is that both knew that there was merit in the disclosures, and
had elected not to act on them. These two
individuals were at that
stage, not merely confronted with queries or mere suspicions as
alleged. They were presented with factual
information which touched
nerves, and which they had clearly failed to act upon. The applicant
had during argument conceded that
the actual disclosure was made to
the Minister on 18 July 2013. Even if so, in the absence of a
formalised procedure in the department
for making disclosures, there
is no reason to conclude that the Vilakazi as the applicant’s
immediate supervisor was not
aware of the irregularities before 18
July 2013, more especially after the applicant had confronted him
twice. Even if it is still
believed that the applicant had merely
made queries, the substance of those queries and the implications
thereof could not simply
have been ignored as Vilakazi had done.
[66]
A further contention on behalf of the respondents was that a
disclosure cannot be made to a wrongdoer. As already indicated,
Vilakazi is the applicant’s immediate superior, and even if the
applicant had reason to believe that Vilakazi might be a
wrongdoer,
in the absence of a procedure in such matters in the department, it
cannot be said that the disclosure made to him cannot
qualify as
such. There is no provision in the PDA that a disclosure made to a
wrongdoer does not qualify as a disclosure. All that
is required is
that the disclosure must meet the requirements stipulated in section
1 of the PDA. In the end, I am satisfied that
the applicant has
established that the protected disclosure was made in good faith, and
there is nothing placed before the court
to negate that finding.
[67]
The applicant had met the Minister on 18 July 2013. It is strange, if
not curious, that the Minister would recall discussions
surrounding
the successful hosting of the Nelson Mandela Day event in Soshanguve,
and not recall any discussions surrounding irregularities
pertaining
to Media Corner, more especially in view of the stupendous amounts
involved. The Deputy Minister had confirmed in her
confirmatory
affidavit that on or about 25 July 2013, she had met the applicant
where she was informed of the irregularities. It
was however not the
first time that the disclosures had been made as they were already
made to Nkwe and Vilakazi and investigations
in regard to the
Nkowankowa event had already taken place. The respondents’
contention that the disclosure was only made
on 25 July 2013 to
Minister for the purposes of protection under section 7 (a) of the
PDA is therefore not sustainable.
IS THERE A CAUSAL
CONNECTION BETWEEN THE DISCLOSURE AND THE DISCIPLINARY ACTION AGAINST
THE APPLICANT?
[68]
In essence, the question posed above is whether the disciplinary
action intended against the applicant constitutes an occupational
detriment. The answer to the above question pertains to whether the
disciplinary action is to be instituted on account, or partly
on
account of having made a protected disclosure.
[69]
The applicant had submitted that the events prior to 22 November 2013
that resulted had with a court order should not be viewed
in
isolation more especially in view of the intended disciplinary
action. I have no doubt in my mind that from the moment that
the
applicant had made a disclosure to Nkwe and Vilakazi, attempts to
push him out of the department were relentless, and at times,
bordered on the desperate. Sekese in particular appeared to be
more desperate to remove the applicant from the department.
This can
be gleaned from a variety of facts including, but not limited to the
efforts to re-deploy him back to the Free State despite
Ralinkotsane’s clear message that the applicant could not be
accommodated back, the stripping of the applicant’s powers,
denying him access to his office, the prevarication in respect of the
removal of Mlandu in the acting position, the desperate attempts
to
redeploy the applicant in other departments, the haste with which his
position was advertised despite an application before
the court, the
clear message from the Minister himself on 6 September 2013, that
“some powerful people within the department
did not want him”
and were putting pressure on the Minister to re-deploy him; and the
perception that the Minister was “too
soft” on him. In my
view, these desperate measures could not have ended with a simple
reinstatement of the applicant into
his position after the court
order of 22 November 2013.
[70]
In view of the desperation on the part of Sekese as outlined above,
the intended disciplinary action against the applicant
can be said to
have been brought
partly
on account of the protected
disclosures the applicant had made. It is said
partly
in that
the other part to the instituting of the disciplinary action pertains
to the actual allegations of impropriety on the part
of the
applicant. Notwithstanding the fact that the applicant had made a
protected disclosure and in good faith, the allegations
against him
remain untested. It could not have been envisaged by the drafters of
the PDA to exonerate whistle-blowers regardless
of other prevailing
circumstances including the fact that they themselves may be involved
in acts of misconduct. Inasmuch as the
PDA is intended to protect
whistle-blowers, there is no provision for sacred cows.
[71]
It has been concluded that the disclosures were made in good faith.
In my view the mere fact that the disclosures were made
before the
investigations in respect of the Nkowankowa event does not absolve
the applicant from having to answer to equally serious
allegations
against him. The applicant’s brave action of exposing
malfeasant in the department is commendable. However, he
must also
answer to the allegations against him, no matter how spurious and
unsustainable they may appear. This should not have
come as a
surprise to the applicant in that when his powers were reinstated by
Sekese on 14 August 2014, he was reminded that he
still needed to
account for the Nkowankowa event. In the end, given the nature of the
relief that the applicant seeks, it cannot
be said in the light of
what has already been stated that the intended disciplinary action
would constitute an occupational detriment.
The respondents are
entitled in these circumstances to invoke their internal disciplinary
processes, and it would be iniquitous
and contrary to the spirit and
letter of the PDA to interfere with that internal process.
[72]
The disciplinary enquiry had not as yet taken place, and in view of
the nature of the application before the court and the
relief that
the applicant seeks, it is not known what irreparable harm he would
suffer. The applicant has an alternative remedy
in that he will have
an opportunity to rebut the allegations against him in the impending
disciplinary enquiry. Furthermore, his
remedies are to be found in
section 4 of the PDA which contemplates an alternative remedy for
cases where an employee has not been
dismissed. In this regard,
Section 4 (1) provides
that;
“
Any
employee
who has been subjected, is subjected or may be subjected, to an
occupational detriment
in breach of section 3, may-
(a)
Approach any court having jurisdiction,
including the Labour Court established by section 51 of the Labour
relations Act, 1995 (Act
66 of 1995), for appropriate relief; or
(b)
Pursue any other process allowed or
prescribed by any law.
Section 4 (2) (b)
provides that;
“
For
the purposes of the
Labour Relations Act, 1995
, including the
consideration of any matter emanating from this Act by the Labour
Court-
(c)
any other occupational detriment in breach
of section 3 is deemed to be an unfair labour practice as
contemplated in Part B of Schedule
7 to that Act, and the dispute
about such an unfair labour practice must follow the procedure set
out in that Part: Provided that
if the matter fails to be resolved
through conciliation, it may be referred to the Labour Court for
adjudication.”
[73]
It is common knowledge that Part B of Schedule 7 has since been
replaced by section 186(2)(d) of the LRA by the 2002
Labour Relations
Amendment Act 12 of 2002
[18]
.
Section 186
(2) (d) provides that;
“
Unfair
labour practice”
means any unfair
act or omission that arises between an employer and an employee
involving—
“
(d)
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.”
[74]
In summary, the applicant has demonstrated that he has made a
protected disclosure, which disclosure was made in good faith.
The
applicant is however not entitled to the relief he seeks in view of
the failure to establish the requirements of the relief
that he seeks
to the extent that it was found that the intended disciplinary action
will not constitute an occupational detriment,
that he has not
established what irreparable harm he would suffer, and further that
he has alternative remedies.
COSTS:
[75]
The court may make an order of costs having taken into account
considerations of law and fairness. In my view, having had regard
to
the circumstances of this application, and in particular the role
played by the applicant in making the disclosures, and the
fact that
the Minister had acted upon them, any cost order would be wholly
inappropriate.
ORDER:
The
application is dismissed.
__________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
In Person
For
the 1
st
and 2
nd
Respondents:
Paul Pretorius SC with Tanya Venter
Instructed
by:
State Attorney
[1]
“
SA
whistle-blowing system gets top score”. Business Day, 27
January 2014
[2]
[2011]
12 BLLR 1143 (SCA)
[3]
(2007)
28 ILJ 195 LC at para 168)
[4]
26
of 2000
[5]
(2012)
33 ILJ 2353 (LAC) at para 16
[6]
Preamble
to the PDA
[7]
See
Setlogelo v Setlogelo
1914 AD 221
at 227
[8]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) 634G – 635C (See also Harms, LAWSA,
Volume 11, 2nd Ed p414ff).
[9]
(251/11)
[2012] ZASCA 3
(2 March 2012)
[10]
at
para 16
[11]
at
para 17
[12]
Randles
v Chemical Specialist Ltd (2010) 31 ILJ 2150 (LC)
[13]
at
para 197
[14]
Arbuthnot
v SA Municipal Workers Union Provident Fund (2012) 33 ILJ 584 at
para 23.
See
also Radebe & another v Premier, Free State & others
(2012
(5) SA 100
(LAC)
[15]
See
Tshishonga at para 197
[16]
At
paragraph 18 of the founding affidavit
[17]
At
paragraph 21 of the founding affidavit
[18]
See
Van Alphen v Rheinmetall Denel Munition (Pty) Ltd (C 418/2013)
[2013] ZALCCT 21;
[2013] 10 BLLR 1043
(LC) (21 June 2013)