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[2014] ZALCJHB 131
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Solidarity obo Roos v South African Police Service and Others (JS1043/12) [2014] ZALCJHB 131 (22 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA,
IN JOHANNESBURG
OF
INTEREST TO OTHER JUDGES
CASE
NO: JS 1043/12
In
the matter between:
SOLIDARITY
OBO J J H ROOS
Applicant
AND
SOUTH AFRICAN
POLICE SERVICE
First
Respondent
THE MINISTER OF
POLICE (
N.O.
)
Second
Respondent
THE NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICE (
N.O.
)
Third
Respondent
Heard:
20-21 February 2014
Delivered:
22 April 2014
Summary:
(Protected Disclosure Act – employee moved to a functionally
non-existent post – claim for compensation
–
sterilisation of exercise of skills and of promotion prospects in
internal auditing capacity - test for compensation).
JUDGMENT
LAGRANGE,
J
Introduction
Summary of the
Applicant’s Claim
[1]
The applicant in this matter, Col JJH Roos
(‘Roos’), claimed that he was removed from his position
as Head of Internal
Audit of the Crime Intelligence Division of the
South African Police Services and appointed as the head of a unit
that was yet
to be established, known as Inspection and Evaluations
because he had made a number of disclosures about fraud and
corruption committed
in relation to the Secret Service Account of
Crime Intelligence. He alleged that these disclosures which had been
made to his superiors
and to the Directorate of Special Operations
(‘the Scorpions’) over a period from 2004 to 2009
amounted to protected
disclosures in terms of the Protected
Disclosures Act, 26 of 2000 ('the PDA') and that his transfer to the
Inspection and Evaluations
unit against his will amounted to an
occupational detriment under the PDA. Consequently, he claimed that
these actions amounted
to an unfair labour practices in terms of the
Labour Relations Act 66 of 1995 (' the LRA').
Preliminary
Matters at The Commencement Of Proceedings
[2]
On 7 November 2013 the trial was postponed
at the request of the respondents, mainly because two of their
principal witnesses, Lieutenant
General RH Mdluli (‘Mdluli’)
and former Commissioner M Mphego (‘Mphego’) were not
available to testify.
At the time, as was also the case when
proceedings resumed Mdluli was on suspension and Commissioner Mphego
had already left the
SAPS. When postponed proceedings commenced in
February 2014, the situation had not improved in this respect, even
though the respondents
had attempted to serve a subpoena on Mdluli on
4 February 2014.
[3]
The sheriff’s return of service
stated that persons at Mdluli’s residence refused to open the
door and telephoned the
general who instructed them not to receive
the subpoena which was then explained to the occupants of the
premises and attached
it to the main gate. In his opening statement
respondents’ counsel, Mr
W Mokhari
SC
, said that General Mdluli must have
known what the subpoena was concerned with because on previous
occasions letters had been addressed
to him to avail himself for the
purposes of the case. In passing, I note that the respondents did not
request the court to invoke
the provisions of
section 35(2)(a)(ii)
of
the
Superior Courts Act 10 of 2013
to bring General Mdluli before
court following his apparent attempt to evade service on the
subpoena. Mr
Mokhari
also
advised the court that Commissioner Mphego had informed the
respondent's legal team that he could not consult with them because
he had already consulted with the applicant's legal representatives.
Subsequently however, he agreed to consult with the respondent's
legal representatives, but did not honour this commitment.
[4]
Because the respondents regarded these two
individuals as their principal witnesses, they were unable to dispute
the merits of the
applicant's claim that he had been subjected to an
occupational detriment as a result of having made protected
disclosures under
the PDA about unlawful and corrupt activities in
the Crime Intelligence Division.
Mr
Mokhari
then made a statement in open
court to the effect that:
4.1
The respondents could not oppose the
applicant’s claim on the merits and accordingly abandon the
defences raised on the merits
to his claim.
4.2
The respondents further recorded the
applicant’s entitlement to transfer to a post comparable to the
one occupied by him prior
to his transfer at the instance of Mdluli
that is the subject matter of these proceedings, the precise nature
of the post to be
identified in consultation with the Applicant
before an order is made in the proceedings or, alternatively to be
determined by
the court after hearing evidence.
4.3
The respondents contested the applicant’s
claim for compensation on the basis that no payment or alternatively
a lesser amount
than twelve months’ remuneration should be
awarded after evidence has been heard on the issue.
4.4
Lastly, the respondents tendered the costs
of the proceedings including the costs of two counsels.
[5]
In consequence, the only issue for the
court to determine was the matter of remedies as described in
paragraphs 4.2 and 4.3 above.
[6]
Before any evidence was heard the parties
attempted to negotiate a draft order in relation to the placement of
the applicant as
envisaged by the respondents’ statement in
open court. Ultimately a final draft order could not be agreed to in
its entirely
and the parties agreed that the court should settle the
final wording in the exercise of its discretion.
[7]The
applicant then led evidence in support of the relief he sought.
Applicant’s
evidence
[8]
The Secret Services Account, having a
multimillion rand budget, is an account that is established within
Crime Intelligence. The
purpose of the account is to fund undercover
operations that would not be operated by the normal account functions
of the SAPS.
The management of the account is conducted through a
Chief Financial Officer in charge of the account, who reports to
Parliament
separately from the normal SAPS reporting channel to
Parliament. The primary function of crime Intelligence was
characterised by
Roos as the gathering information mostly by
undercover work on criminal activities before crimes are committed,
such as monitoring
the activities of crime syndicates, and then
disseminating the information to the relevant operational units so
that they can act
on it.
[9]
In 2003 the applicant was appointed head of
the Internal Audit Department and was responsible for the
establishment of the first
Internal Audit Section concerned with the
Secret Services Account. As head of internal audit the applicant was
responsible to see
that there was no maladministration of the Secret
Service account and that funds were used for the projects for which
the funds
had been allocated. In all provinces there are Secret
Service advance offices handling cash up to the value of
approximately R3
million because most of the operations conducted in
the section require cash. Part of the auditing function was to
examine the
documentation provided to vouch for the cash advances.
Like the operations funded in this way, the related documentation is
also
kept secret.
[10]
In October 2004, the applicant discovered
discrepancies in the accounts of the Head Office advance fund. These
discrepancies related
to payments to a cleaning services company that
serviced premises used by Crime Intelligence in undercover
operations. The company
was co-owned by a certain colonel, who worked
in Crime Intelligence, together with his spouse. The applicant
testified that this
arrangement was completely irregular. The
practice was that three quotations had to be requested before
services of this kind could
be requisitioned and it was found that in
this process false quotations had been obtained. At the time The
colonel in question
was also ‘a good friend’ of
Major-General S Lazarus (‘Lazarus’), the Chief Financial
Officer of Crime Intelligence.
[11]
The applicant raised his concerns with the
legal officer, Brigadier Van Vuuren (‘Van Vuuren’), and
with a member of
the Auditor General's office, Brigadier G Steyn
(‘Steyn’), who also audited the Secret Service account.
He was later
advised that there was
prima
facie
evidence of fraud in the
operation of the account. The applicant had also found evidence of
so-called “cover quoting”
for repairs to vehicles. This
was to ensure that a repairer, who was also a friend of Lazarus,
obtained the work. Essentially,
this practice amounts to obtaining a
spurious quotation against which the favoured repairer’s quote
would appear more reasonable.
Before he obtained a legal opinion from
Van Vuuren, Roos was asked by Mphego, who was the Deputy Divisional
Commissioner in charge
of Crime Intelligence and second in command of
the section, what he was busy with. When he told him, Mphego was
furious and ordered
him to stop his investigations and provide him
with a report on the matter within a day. He also instructed Roos not
to report
the matter to any other persons.
[12]
Roos believed that Mphego was angry because
the investigation implicated people he was friendly with as well as
implicating Lazarus.
Nevertheless, the applicant compiled an
information sheet which he provided to Mphego. Because of Mphego’s
instruction he
conducted no further investigations into the cleaning
services company or the cover quotations. He was somewhat puzzled
that the
Commissioner appeared to know what he was investigating and
conveyed this to Steyn. Steyn advised Roos that he had been
approached
by Divisional Commissioner R Lalla (‘Lalla’),
together with a Brigadier Ellis. They had asked him what Roos was
working
on. Steyn told Roos that he believed that his offices were
being ‘bugged’ as it seemed that the pair had been aware
of his earlier conversation with the applicant.
[13]
In November 2004, Roos was summonsed to
another meeting with Mphego, which was also attended by Lazarus and
Van Vuuren. On this
occasion, Mphego expressed his anger that the
Commercial Crime Unit was now reportedly investigating the matter. It
was clear to
Roos that Mphego assumed he had passed on information
about his investigation to that unit. Mphego warned Roos that he was
young
and he could end his career. Roos protested his ignorance about
the role of the Commercial Crime Unit. Van Vuuren then clarified
that
he was the person who had forwarded the matter to the Commercial
Crime Unit. When this was revealed, Roos was asked to leave
the
meeting.
[14]
On 30 August 2005, Mphego issued a letter
to Roos informing him that Senior Superintendent Chan Goolam
(‘Goolam’) would
henceforth be the head of Internal
Audit, despite the latter having no internal auditing qualification
nor any experience in internal
auditing. According to Roos, Goolam
was also a close friend of Lazarus. The applicant made it clear that
he was not going to accept
this because he had been appointed as Head
of Internal Audit and he was convinced that the only reason for the
step was because
of the fraud and corruption which he had uncovered.
Mphego's response was simply that this was a management decision and
Roos must
accept it. Nonetheless, the following day Mphego advised
the applicant that he would alternate on a monthly basis with Goolam
as
head of internal audit. In Roos’s view this was completely
unworkable.
[15]
During September that year Roos took a
weekend off, having been given permission by Gen Lazarus. He received
a call from a neighbour
that Saturday advising him that there had
been a break-in at his house. His papers were strewn about and
various notes from his
briefcase concerning his fraud investigations
were amongst the items that had been removed. It was at that stage he
began to become
concerned about his own family's safety as it
appeared that the burglary was linked to his work.
[16]
In November that year the post of Head of
Internal Audit was upgraded to the rank of Brigadier and Steyn was
successful in obtaining
the appointment. Roos had also applied for
the position.
[17]
In February 2009, Roos was contacted by
Colonel T Tolkin (‘Tolkin’) of the Directorate of Special
Investigations (‘the
Scorpions’). Tolkin advised him that
on the instruction of the Minister of Police, the Scorpions were busy
with an investigation
into fraud and corruption arising in the Secret
Services Account and they were approaching him for information. Roos
sought and
was given an assurance that he would be treated as someone
making a protected disclosure in terms of the PDA. Roos then met
twice
with Tolkin and gave him certain documents.
[18]
In the same year, Mdluli was appointed as
Divisional Commissioner of Crime Intelligence. Sometime in July 2009,
Roos was contacted
by a Col Odendaal (‘Odendaal’), also
of Crime Intelligence, who told him that Mdluli wanted to set up a
meeting with
the applicant in a hotel room, an event which apparently
was not that unusual in the section. It was the first time that Roos
met
Mdluli, who told him that he wanted to clean out the corruption
in Crime Intelligence and specifically mentioned the name of Lazarus.
Two or three days after this meeting, Roos was given a written order
by Mdluli instructing him to head up the task team that would
conduct
the investigation. At that time, the applicant believed that Mdluli
was sincere in his intentions to clean up the corruption
and
prosecute those responsible. Accordingly, Roos was happy to provide
Mdluli with a full briefing on all the information he had
gathered.
Subsequently, Mdluli held weekly meetings with the team engaged in
the investigation. In August 2009 Mdluli advised the
team that there
was an informant in Limpopo who wanted to provide evidence on fraud
and corruption particularly involving Lazarus
and some of his
associates. Pursuant to this, on 26 August 2009, Roos provided Mdluli
with a report on the Limpopo source.
[19]
Flowing from the information obtained,
which according to Roos concerned serious allegations, the team
sought to obtain certain
documents about the Secret Service Account,
but Lazarus refused to release them. Consequently, the applicant
approached Mdluli
for assistance and the latter advised him to draft
a letter for his signature granting Roos permission to obtain the
documents
in question.
[20]
However, when Roos asked Mdluli to sign the
letter, Mdluli would not do so and Roos sensed that there had been an
attitude change
on Mdluli’s part. Mdluli was no longer friendly
and, in the words of Roos, Mdluli "was not the same person who
had appointed
the team to investigate the fraud and corruption."
The applicant said he could no longer arrange any meetings with
Mdluli
about the investigation. When asked if he could explain the
change in attitude, the applicant could only say that he had heard
that Mdluli had befriended Lazarus, whom they were supposed to be
investigating, and that Mdluli had gone overseas on a trip to
Singapore with Lazarus and others who were under investigation. The
applicant found himself in a very awkward position without
Mdluli’s
continued support for the investigation and given Mdluli’s
newfound familiarity with those under investigation.
[21]
On 22 October 2009, the Roos's office at
work was broken into, but none of the documents relating to his
investigation were taken
as he did not keep those in his office. In
November, the applicant was contacted by Odendaal, who had been part
of the investigating
team. Odendaal requested him to come to a
meeting with Colonel A Dramat (‘Dramat’), who was heading
the Hawks. There
was a belief that the investigation might be
relaunched with the assistance of the Hawks. However, Roos was
reluctant to get involved
with the Hawks, because the investigation
had been initiated at the instance of Mdluli, his superior officer.
[22]
On 3 December 2009, shortly after the
overseas trip mentioned above, the applicant was summonsed to attend
a meeting at Mdluli’s
office. Present at the venue were Mdluli,
Major-General J Mabaso (‘Mabaso’), Odendaal and two other
senior officers.
While the applicant and others were waiting in the
boardroom of Mdluli, the latter came out of the office together with
Lazarus
and Van Vuuren. Mdluli confronted the applicant as to
who had said they could approach Dramat. The applicant explained that
he knew that some of the team had met with Dramat but that he did not
go himself.
[23]
In the same meeting, the investigating team
was attacked by Lazarus who accused them of being ‘pathetic’
investigators
and he questioned how they dared to investigate him. He
also threatened to charge the investigators. Roos appealed to Mdluli
about
how these things could now be said when they had conducted the
investigation at his behest. Mdluli’s final response was that
the organisation was bigger than any individuals and the
investigation must be brought to an end.
[24]
This turn of events was upsetting to the
applicant, because in his view there was ample evidence of fraud and
corruption but now
that Mdluli had made common cause with some of
those under investigation, it had to be disbanded. Following the
meeting, the investigation
did indeed come to a halt and Roos
returned to his normal duties in the Internal Audit section. However,
in June 2010 fresh information
came to light about additional ‘cover
quoting’ practices and grossly inflated car repair bills of up
to R100,000 to
R120,000 being paid to a certain repair company. While
the applicant was still busy with that audit, he was instructed to
stop
it by Steyn, his superior.
[25]
Soon afterwards Roos received a letter from
Mdluli. The letter heralded the establishment of an "inspection
and evaluation
capacity” within Crime Intelligence. Mdluli
expressed the ostensible reason for this new initiative thus:
"It came to the
attention of this office that major deficiencies and weaknesses exist
in Crime Intelligence, related to Financial
Services, Supply Chain
Management and Human Resource Management. This could also be
attributed to the centralisation of Crime Intelligence
and effect it
has on the command and control."
[26]
The letter went on to identify Roos as the
candidate to head this ‘capacity’, augmented by two other
staff members,
a lieutenant colonel and a warrant officer, who had
asked to be transferred out of Internal Audit. The task set for the
unit was
"to identify and report deficiencies and weaknesses
within the Crime Intelligence environment on a national as well as a
provincial
level”. The reporting line of the unit was to be to
the Head: Operational and Generic Support, Crime Intelligence, Head
Office.
Roos was directed by Steyn to take up the new position.
[27]
Roos pointed out that this position was
completely removed from the Secret Service Account and the audit work
that he was previously
doing. Prior to receiving the letter from
Steyn there had been no discussion with him about the establishment
of this unit which
would fall under the open account section of Crime
Intelligence. Moreover, the establishment of the unit had not even
been approved
by the National Commissioner yet. Roos tried to get a
meeting with Mdluli about the appointment, but the latter always
found excuses
not to meet with him. Consequently, on 5 July 2010 the
applicant wrote to Mdluli thanking him for the opportunity to take up
the
new appointment, but declining it. His reasons for doing so were
that he had worked for more than twenty years for the SAPS, mostly
in
the internal auditing environment, for which he also was qualified.
Further, he foresaw that it could damage his career prospects
as an
internal auditor, whether in the SAPS or elsewhere if he were removed
from the internal audit function. He requested that
he be allowed to
remain where he was and to be given the opportunity to progress
because he had already held his current rank for
ten years. Roos also
recorded his unsuccessful attempts to meet with Mdluli to discuss the
matter and complained of the pressure
being put on him to leave the
section dealing with the Secret Services Account.
[28]
On Friday 9 July 2010, Roos was advised by
Tolken, who was now working in Crime Intelligence:
Counter-Intelligence Investigations
following the disbandment of the
Scorpions,that Mdluli had instructed Major General Mokgabudi
(‘Mokgabudi’), the Head
of Counter intelligence, to
personally investigate and recover classified documents allegedly
stolen from the Secret Services Account.
A letter to this effect had
been issued to Mokgabudi on the same date. On the following day, the
applicant received a threatening
note in his post box at home which
read:
"U keep diging now
its over
nice house”
(sic)
The
lettering of the note appears to have been cut and pasted from other
documents. The applicant believed that this threat was
directly
connected to his investigations and that the people behind it would
stop at nothing. It upset him greatly and he was concerned
about his
family's safety.
[29]
Mokgabudi summonsed the applicant and
Tolkin to a meeting on 12 July 2010. He advised them that he had been
tasked with the investigation
and also that he had been instructed to
find out who had been the whistleblower who had given information
about the investigation
to the Scorpions in 2009. The applicant
pointed out that he had never stole in any documents and that if
Mdluli who had appointed
him to do the investigation had requested
documents from him he would have provided them. The same day Tolkin
made an affidavit
about his meeting with a whistleblower from Crime
Intelligence and the Scorpions investigation into the fraud within
the secret
services account which flowed from that. In his affidavit,
he did not identify the applicant by name as the whistleblower.
[30]
The applicant handed over copies of the
documents pertaining to his investigations to Mokgabudi, which he
detailed in an information
note dated 13 July 2010. The Mokgabudi
advised him that it appeared that there was enough evidence in the
documents to prove that
fraudulent activities had taken place, and
that he would report this to Mdluli, which he apparently did,
though unsurprisingly
nothing came of it. On that day he was also
issued with a written notice, apparently signed by Mdlluli, of the
latter’s intention
to transfer him to the new post. He was
invited to make representations on the intended transfer within an
unspecified number of
days, failing which he would be deemed to have
waived his rights. Prior to this, the applicant had never received
any response
to his letter in which he had given his reasons for not
wanting to move to the position.
[31]
The Internal Audit section relocated to a
different building at the end of July 2010 but Roos was told to
remain where he was to
establish the new unit he had been assigned
to. On 27 July 2010, the applicant wrote to his superior in
Operational and Generic
Support, General F N Vuma (‘Vuma’),
requesting the provision of certain basic infrastructural support and
the appointment
of appropriate staff. He also asked that a needs
analysis be conducted. On Vuma’s request, Roos drafted a
relatively detailed
proposal on the functions of the new unit so that
a work study could be conducted. The applicant explained that this
step would
normally be done
before
any new structure was established. He was later instructed to request
the lateral transfer of staff to the new unit even though
no work
study had been conducted and that the level of posts in the unit
could not be determined.
[32]
In late August 2010, the applicant was
summonsed to a meeting with Mdluli, which was attended by Lazarus and
Mokgabudi, among others.
This was the first time the applicant had
met with Mdluli since December the previous year. Mdluli accused the
applicant of investigating
him, based on an alleged anonymous phone
call which had been received. However, when the applicant suggested
that perhaps he should
leave the Crime Intelligence division because
of the victimisation he was being subjected to, Mdluli insisted that
he had to stay
in order to establish the new unit.
[33]
In late November 2010, Vuma advised the
applicant that she was moving to the inspectorate division of SAPS
and that Mdluli had told
her the new unit would not be established.
Mdluli flatly denied this when asked about this by Roos. He told Roos
not to believe
Vuma and he must just be patient as the new unit was
going to be established. By then, the applicant had done no concrete
operational
work in his new role, save for one investigation into the
open account of the Advance Office. The lack of work was very
frustrating
for Roos, but he was told simply to be patient until the
unit was properly established. He found it extremely frustrating
effectively
doing nothing and occupying an office in a virtually
deserted building completely cut off from the Crime Intelligence
division
with the two members of staff who had been transferred with
him.
[34]
The applicant did have a further meeting
with Mdluli in mid-December 2010, at which Mdluli yet again confirmed
that the unit was
going to be established and that the post level of
the head of the unit would be that of a Brigadier. By that stage the
applicant
had lost faith in anything that Mdluli said and did not
really believe him. Nevertheless, the applicant complained that no
work
study had even been done yet and this prompted Mdluli to phone
Colonel Lombard, who worked in the work study section of head office,
to look into it. Between then and March the following year a number
of meetings took place with Mdluli and Lombard took place,
apparently
at the instance of the applicant, in an effort to get matters moving.
In March 2011, a new proposed structure for the
Crime Intelligence
division was produced. For the first time, the Inspection and
Evaluation unit appeared and it indicated that
a Brigadier would
indeed head the unit.
[35]
Even when Mdluli was been suspended in 2011
arising from his alleged involvement in kidnapping and murder, the
applicant continued
with his efforts to galvanise support from other
Commissioners to get his unit going, but received a consistently
negative response.
He was advised that he had to wait until Mdluli
came back, or was fobbed off with more promises that something would
be done. At
some stage he did secure a very brief audience with a
Major General Mantshashe (‘Mantshashe‘). Roos appealed to
him
to assist him with the establishment of the unit and Mantshashe
promised to speak to Lazarus about it but never got back to him.
[36]
Sometime in May 2011, the applicant learned
that the Department of Transport was going to occupy the Forum
building where his unit
was currently situated and that all remaining
SAPS offices would have to leave the building. He wrote to the new
head of his section
Brigadier MO Nemutanzhela (‘Nemutanzhela’)
asking for his unit to be accommodated in the envisaged relocation of
other
Crime Intelligence units to the Sancardia building. Nothing had
been conveyed to Roos through official channels about any of these
arrangements. Nemutanzhela never replied to the letter and some two
years later the applicant's unit was ejected from the building
and
relocated to its current offices. The applicant’s experience
was that nobody wanted to communicate with him and he was
treated
‘like a cancer’, even though, in terms of the lines of
authority, he was supposed to communicate with various
Divisional
Commissioners.
[37]
In mid-June 2011, Roos was formally
requested to assist the Hawks or, more mundanely, the Directorate for
Priority Crime Investigation
with the investigation of fraud and
corruption which he had discovered at the Crime Intelligence Head
Office. Roos was specifically
asked to make a statement in hand over
any evidence as soon as possible. On 17 June 2011 Roos duly deposed
to a detailed affidavit
setting out the results of his
investigations, and the various measures taken to hamper his
activities, most of which has been
set out above. He also attached
documentation pertaining to the contents of the affidavit.
[38]
At
the beginning of September 2011, General Cele, the National
Commissioner of Police at the time, finally approved the new
structure
for Crime Intelligence which had been proposed in March
that year. On 16 November 2011, Roos finally submitted a grievance
about
his treatment ever since he had conducted the various
investigations that had exposed fraudulent activities. As a remedy
for his
grievance he proposed that he either be appointed as a
Brigadier and provided with the necessary support for the unit
including
the appointment of staff with the appropriate skills and
experience, or that he be allowed to leave the SAPS on the salary
level
of a Brigadier in terms of section 35(b) of the South African
Police Services Act, 68 of 1995.
[1]
[39]
Because of the content of the grievance
which traversed the issues set out above, the applicant did not want
to submit it through
the normal channel but directed the grievance to
General G Lebeya (‘Lebeya’), who was the Deputy National
Commissioner
responsible for Crime Intelligence. Roos explained to
him that all the promises which had been made about the new unit had
come
to nought. General Lebeya undertook to pass the grievance on
directly to Mantshashe who would then return it to Lebeya.
Unfortunately,
despite the applicant's attempt to ensure that the
grievance was handled with discretion and despite Lebeya’s
undertaking,
that is not how things turned out and the grievance was
simply processed through the ordinary channels with the result that
the
applicant heard ‘corridor talk’ about the contents of
his grievance.
[40]
In early November 2011, the applicant
received a copy of a secret report to the Inspector General of
Intelligence on the alleged
maladministration and crimes committed in
respect of the Secret Services Account of the Crime Intelligence
Division prepared by
Major General Hankel and Major General C P de
Kock of Crime Intelligence. The applicant explained that the report
was essentially
the result of the Hawks’ investigation into the
division. The ambit of the report was wider than the investigations
conducted
by Roos, including as did an investigation into vehicle
fraud, nepotism, unauthorised travel arrangements for spouses all of
which
implicated Mdluli. The applicant commented that the allegations
of an authorised payment for overseas travel related to the trip
which Mdluli made to Singapore, after which his attitude towards
Roos’s investigations change so dramatically. The report
also
contained extensive findings on a wide range of unlawful activities
including amongst others intimidation of an officer who
had provided
information to the Hawks; the fraudulent designation of persons as
undercover agents; improper salary advances, abuse
of air travel
services and the requisitioning of covert vehicles. The applicant
confirmed that these were the type of issues that
he would have been
expected to investigate in the performance of his functions in the
Internal Audit Section.
[41]
In February 2012, Roos received a ‘progress
report’ from Lt Col P J Viljoen (‘Viljoen’) of the
Hawks
inter alia
on the investigation of his complaint about being prejudiced for
whistle blowing. The report concluded that the preliminary findings
regarding the applicant's allegations had been ‘90%
substantiated’, as were the allegations made by another senior
officer about rampant corruption taking place on a breathtaking
scale. Importantly, for present purposes, the report mentions that
the other senior officer confirmed to Lt. Colonel Viljoen that the
applicant had been moved away from Crime Intelligence to stop
him
continuing with his investigation and that Crime Intelligence had
intended to isolate him completely.
[42]
In June 2012, Roos was questioned over two
days about his investigations by a panel of five members from the
Inspector General's
office. He was also asked to present them with
the findings of his investigation, which he did on 29 June 2012. In
relation to
the new unit, Roos was due to give a presentation to the
newly appointed Divisional Commissioner on 2 July 2012, but the
meeting
was postponed ostensibly for fear that the premises might be
‘bugged’. Approximately half a dozen further requests by
the applicant for such a meeting with his new superior also did not
yield any results, repeating the applicant's previous experience.
There was one management meeting which took place at which it was
agreed that the meetings would be held weekly but on for September
2012 he received an e-mail that all further management meetings were
indefinitely postponed. The same month, yet another organisational
structure was approved for Crime Intelligence in which the
applicant's stillborn unit no longer appeared.
[43]
Another consequence of the applicant's
inactivity was that his performance ratings during his performance
appraisals dropped, even
though there was little he could do to
remedy the situation. Sometime in 2011, a post at the level of
Brigadier became available
in the internal audit division of SAPS
head office, but the applicant did not apply for it because he felt
that he could not honestly
say he had been gaining any experience
since his expulsion from the Internal Audit Division in Crime
Intelligence.
[44]
Roos confirmed that he was seeking his
previous post as head of internal audit and promotion to the rank of
Brigadier if that was
possible. When asked why he was seeking
compensation as well he said he had been given nothing to do for
three and a half years
and had to endure hearing junior members in
the service talking about the fact that he was earning a salary
whilst doing nothing.
Apart from putting his career on hold for such
a long period, he had had to endure his office and his home been
broken into. Roos
further repeated the frustration he felt at being
isolated, particularly by his superiors, as if he was ‘the bad
guy’.
He had also concealed from his family the threatening
note and was concerned about his safety because the corruption
involved millions
of rands and he regarded some of the people
involved as ‘dangerous’ individuals.
[45]
Roos believed the intention of these
actions was to attempt to break him down simply because he had done
his job, which was to investigate
fraud and corruption. What made it
worse was that he had been specifically instructed by Mdluli to
pursue the investigation but
the latter had then ‘changed
sides’. The applicant believed that if it were not for Mdluli’s
volte face
,
he would still be working in the Internal Audit Division of Crime
Intelligence. He also testified that the frustration he experienced
impacted negatively on his family life because it made him so
irritable. He did not regret bringing the case because his situation
was unchanged and fraud and corruption was still continuing in the
Crime Intelligence section, where he could make a big contribution.
Despite the risks involved, Roos felt that he had little choice but
to bring the case otherwise he would be sitting idle in his
present
position until his retirement.
[46]
Although he was paid whilst he was sitting
idle, Roos said he could not describe the feeling of not being able
to work or to advance
his career. He was now 49 years old and had
been a colonel for thirteen years, but it was difficult to advance if
you were not
actually working.
[47]
The cross-examination of the applicant was
effectively confined to the issue of the relief sought because the
respondents were not
in a position to dispute the applicant's
evidence on the merits of his claim. The applicant nevertheless
agreed that Mphego had
not been responsible for creating the
situation in which the applicant now found himself in. He also agreed
that Mdluli was currently
under suspension, which was related to the
same activities which the applicant wanted to investigate and that
his activities were
currently under investigation by the Hawks,
though he did not have a detailed knowledge of their investigations.
He conceded also
that as things presently stood he could not say who
might ultimately be prosecuted as a result of those investigations.
[48]
Roos agreed that if he could not be placed
in his previous position, an appointment in a comparable post
acceptable to him would
address the problem of his present placement.
When pressed about the reason for claiming compensation, the
applicant pointed out
that his career had been damaged by his
prolonged spell of enforced inactivity. If he had been in his
previous post in of internal
audit that would be reflected in his
work experience when applying for another post, but he could not lay
claim any work experience
for the period after he had been
transferred out of internal audit. The transfer had stopped his
career. It was this and the unfairness
with which he had been treated
that underpinned his claim for compensation.
[49]
It was put to the applicant under
cross-examination that given that his superiors knew about the
circumstances which led him to
be inactive during this period, he
could not just assume that this would count against him if he applied
for another post because
they would understand his circumstances.
Roos disagreed and made the point that the post which had come up for
consideration was
at Head Office, not in Crime Intelligence, and he
did not believe that the persons considering his application would
have had the
same understanding of his situation. He agreed however
that this was his perception but that if he was receiving an
application
from someone who stated that he had been doing nothing
for three and a half years he would not consider such a candidate.
However,
Roos was adamant that the sterilisation of his advancement
prospects was not the only factor underlying his compensation claim.
It was also based on the way he had been removed from his existing
position where he was performing well as an internal auditor.
Legal
principles relating to relief
[50]
Mr Mokhari
submitted
that the Courts have adopted a conservative approach in awarding
compensation in cases where no patrimonial loss had occurred.
Both
parties agreed that the most pertinent authority concerning the
determination of appropriate compensation in this matter,
is the
judgment of the LAC in
Minister of
Justice & Constitutional Development & another v Tshishonga
(2009) 30
ILJ
1799 (LAC)
. Firstly, the LAC held that:
“
[14] As
acts which fall within the scope of the definition of occupational
detriment are deemed to be an unfair
labour practice, it is necessary
to have recourse to s 194(4) of the LRA which is the provision
governing the award of compensation
. It provides that the
compensation awarded to an employee in respect of an unfair labour
practice must be just and equitable but
cannot be more than the
equivalent of 12 months' remuneration.
[15]
In summary,
once
it has been found that an employee has been subjected to an
occupational detriment on account of having made a protected
disclosure, a court must determine what compensation is just and
equitable in the circumstances, which amount is capped at 12 months'
remuneration
.
In the present case the judge in the court a quo appeared to conflate
the award of compensation with an amount of remuneration.
As already
noted
s
194(4) of the LRA employs remuneration purely as a means of
capping the amount of the award so ordered. By contrast, the
court a
quo employed remuneration as the basis for the quantification of the
award. Accordingly the court a quo erred in its interpretation
of s
194(4) of the LRA and this court is thus at large to determine the
appropriate amount of
compensation.”
[2]
(emphasis
added)
[51]
Secondly, the court considered the appropriate approach to adopt
where the compensation related to the determination of
non-patrimonial
loss:
“
[18] The
question thus is what is just and equitable in circumstances where
the compensation is for non-patrimonial
loss. In this connection,
some assistance can be gained from the jurisprudence relating to the
award of a solatium in terms of
the actio injuriarum. In these cases
the award is, subject to one exception of a non-patrimonial nature,
and is in satisfaction
of the person who has suffered an attack on
their dignity and reputation or an onslaught on their humanity.”
[3]
[52]
In
Tshishonga’
s
case, which also involved a claim under the PDA, the court
a
quo
had awarded the aggrieved employee
twelve months’ remuneration as compensation and had awarded him
his costs. Tshishonga
had made disclosures relating to improprieties
in the Master's Office unit of the Department of Justice &
Constitutional Development.
He was subsequently suspended on pay and
subject to a disciplinary enquiry. A notable feature of the case was
that the Minister
had insulted him on national television referring
to him as a ‘dunderhead’ and stated that his performance
was sub-standard,
amongst other things.
[53]
The
LAC replaced the order of the court a quo with an order that
Tshishonga be paid R177, 000 for the patrimonial loss which he
incurred in defending the onslaught launched against him following
his disclosure to the media. Noting that the courts are usually
not
generous when compensating
for
non-patrimonial loss under the
actio
injuriarum,
[4]
the
LAC also awarded Tshishonga an amount of R 100,000 on account of the
embarrassment and humiliation which he had suffered by
being removed
from the Master's Office and thereafter being suspended and subjected
to a disciplinary hearing; the denigration
of the employee by the
Minister of Justice on national television; the false accusation of
poor work performance made by
the minister on national television;
the gross humiliation of being kept in a non-existent post without
any work; the victimization
and harassment of being subpoenaed to
attend an enquiry at which his testimony was irrelevant, and his
treatment for trauma following
his disclosures to the media. Certain
of these factors had to be given significant weight, in particular
the indignity suffered
by the employee following the unfortunate,
intemperate attack on him by the minister on national television. The
gravity of this
grossly unfair and irresponsible conduct by the
minister was compounded by the role played by the employee in seeking
to promote
integrity in government. The LAC further took account of
the fact that this had all occurred because the employee acted as a
whistleblower
in terms of the very legislation introduced by the
minister's department, which was designed to protect whistleblowers.
The Department
of Justice was obliged to show the greatest respect
for the PDA for, as the promoter of the legislation, it should have
known the
cardinal importance of the PDA in promoting the
constitutional values of accountability and transparency in the
public administration
of the country.
[54]
The court reduced compensation from 12
months’ remuneration to R 100, 000, which Mr Mokhari said was
equivalent to two months’
remuneration. In his case he
was also insulted publicly. In
casu
therefore
Mr Mokhari
submitted
that compensation of even three months’ salary would be
generous. I note that this would amount to approximately
R 120,000
based on Roos’s salary...
Evaluation
[55]
In this instance, the disclosure made by
the applicant was central to his official functions and duties as
Head of Internal Audit
of Crime Intelligence. The disclosures
concerned serious corruption and fraudulent activity implicating very
senior officers in
the Crime Intelligence Division. The applicant
conducted himself with scrupulous discretion in disclosing the
outcome of his investigations
to the relevant superiors and to other
investigative arms of the police when required to do so. He still
remained obedient to superiors
even when they instructed him to stop
investigations when the only plausible reason for doing so was to
neutralise his activities.
[56]
His reward was not praise for excelling in
what he was expected to do. Instead, he was gradually deprived of his
authority in the
Internal Audit section and then placed in a state of
internal exile in the Crime Intelligence Division, with the obvious
aim of
preventing him from conducting further investigations. A
further inescapable corollary of these actions was that the very
object
of having an effective internal audit function would be
thwarted.
[57]
Not only was he placed in a post in a unit
yet to be created and properly authorised, but he was sent to
Coventry by his superiors
who clearly avoided giving him any
assistance in trying to make anything positive of his putative
appointment and unit. Apart from
being deprived of resources his unit
was also physically isolated from the rest of Crime Intelligence.
Although he reported for
duty every day, in all probability if he had
stayed at home, it would not have been noticed except by the two
other staff assigned
to the unit. He has had to endure this situation
for nearly four years. This prolonged spell of enforced inactivity
has deprived
the applicant of valuable work experience in his chosen
career, an internal auditor. It is true that he did not apply for the
Internal
Audit post which became available at SAPS Head Office in
2011 and that he could only speculate that he probably would not have
been appointed.
[58]
At that stage it seems he would have been
effectively idle for a year. The applicant’s supposition that
persons evaluating
the candidates for that post might not have been
so understanding of his current idleness if they were not familiar
with the background
to it, was not an unreasonable one. Be that as it
may, at best for the respondents, it is obvious that the applicant’s
prospects
of promotion or advancement would have stagnated whilst he
was quarantined in the new position. By contrast, had he remained in
this post in Internal Audit, his work experience record would
undoubtedly have been enhanced and his prospects for advancement
based on that factor would have correspondingly improved. How to
quantify the extent of this prejudice still remains a difficult
question to determine. However, I am satisfied that the prejudice was
significant enough to warrant compensation linked to the
period
during which he was unable to gain additional relevant work
experience
[59]
The vindictive actions of the applicant’s
superiors of placing Roos in his current unproductive and meaningless
post not surprisingly
meant that other staff would have understood
him to have been sidelined and respect for him would have diminished
as he had picked
up from remarks that he was being paid for doing
nothing.
[60]
A further factor to consider is that even
if the actions to immunise corrupt elements in Crime Protection from
Roos’s investigative
scrutiny was the initiative of only a few
of his superiors,, the inertia of the respondents in dealing
pro-actively with his situation
is disturbing. Despite Roos
protesting vocally about his treatment and despite his findings being
made known and canvassed by other
investigative agencies within the
police service, no steps were taken by the respondents to remedy the
situation. Instead, the
respondents have simply allowed the
manifestly improper treatment of the applicant to continue and
nothing was done to reverse
the prejudicial measures taken against
him. In fact, until it became apparent that the respondent’s
own witnesses were not
prepared to co-operate, the respondent was not
prepared to concede any of the merits of the applicant’s claims
and was vigorously
defending the action. As in
Tshishonga
’s
case, it is startling that the police service, which has the primary
responsibility for combating and investigating crime
in terms of
section 205(3) of the Constitution, could have allowed the applicant
to be prevented from performing his duties which
directly serve those
constitutional objects and are critical to the internal integrity of
the police service.
[61]
In determining an appropriate amount of
just and equitable compensation, all the above factors are relevant
in my view. For convenience,
it is also useful to determine
separately that portion of compensation which can be attributed to
the freezing of his ability to
accumulate relevant work experience
which he was deprive of and that part of the compensation which might
be attributable to the
other factors discussed above.
[62]
In relation to the applicant’s loss
of relevant work experience over a period of four years, it seems
appropriate to award
an amount of compensation for each year he was
deprived thereof and I consider an amount of R 15, 000 per year to be
fair recompense
for this. This is calculated with reference to
a period of three and three quarter years at the time of judgment.
[63]
In relation to the claim for compensation
for subjecting him to the punitive measures meted out to him for
doing his job properly
and given the improper and cynical motives for
which it was done, I believe that compensation in the amount of R
100,000 is a fair
measure of financial redress for what the applicant
went through.
[64]
It should be mentioned that the applicant
has also potentially exposed himself to a degree of personal risk,
evidenced by the burglaries
which in all probability were connected
with his investigation and the anonymous threat with its menacing
overtones. If he had
been supported in his activities by his
superiors, it might be easier to brush off these incidents as
unrelated, but it is an undeniable
cause for concern that these
criminal actions were consonant with the official steps taken to shut
down his investigations and
transfer out of Internal Audit to
minimise the risk of him discovering more.
[65]
On the matter of his future placement, I
have adopted the wording of the draft order agreed to by the parties,
subject to settling
one or two terms on which they could not agree.
In doing so I am mindful of the primary consideration, which is that
there is no
reason why, as far as possible, the respondents would not
wish to utilise the applicant in his capacity as an internal auditor
for which he was trained and in which he performed well.
Order
[66]
In light of the above, noting that the
respondents have conceded the merits of the applicant’s claim
and the points of agreement
reached between the parties on the form
that an order should take in relation to the applicant’s return
to useful employment,
the following order is made:
66.1
For the avoidance of doubt it is recorded
that:
66.1.1
Colonel JJH Roos (‘Roos’) is
currently on the staff of the South African Police Services (Crime
Intelligence) in the
position of Colonel and is drawing benefits as
such.
66.1.2
Nothing in this order shall affect –
66.1.2.1
his status as such;
66.1.2.2
his rank as Colonel;
66.1.2.3
his remuneration (that is, his basic salary
and fringe benefits), which shall remain in full force and effect.
66.2
Nothing in this order shall entail the
displacement of any person from his or her position in Crime
Intelligence specifically, or
in the South African Police Service
generally.
66.3
The respondents are obliged –
66.3.1
to redeploy Roos preferably in the Internal
Audit section of Crime Intelligence or failing that in an internal
audit unit of the
South African Police Service and to provide him
with work of a comparable nature to that which he performed prior to
his transfer
to Inspection and Evaluation;
66.3.2
to give preference to Roos in any
application for appointment or promotion in a post reasonably
acceptable to him within the said
Department or in any other
Department in which his skills can properly be deployed, as soon as
such a post becomes available.
66.4
The respondents must pay Roos compensation
under s 194 (4) of the LRA in the amount of R 156,250-00 (one hundred
and fifty six thousand,
two hundred and fifty rands) within 14 days
of the date of this judgment.
66.5
The respondent must pay the applicant’s
costs of suit, including the costs occasioned by the employment of
two counsel.
_________________
R
G LAGRANGE, J
Judge
of the Labour Court
Appearances:
For
the applicant: MSM
Brassey SC assisted by MJ Engelbrecht
Instructed
by:
Serfontein Viljoen and
Swart
For
the respondents: W Mokhari SC assisted by S
Tilley
Instructed
by:
The State Attorney.
[1]
Section
35 of the SAPS Act provides for the: “
Discharge
of members on account of redundancy, interest of Service or
appointment to public office
”
[2]
At
1807
[3]
At
1808
[4]
At
1808, para [21]