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[2014] ZALCCT 6
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Montingoe v Head of the Department of the Northern Cape Department of Roads and Public Works and Others (C18/2014) [2014] ZALCCT 6; (2014) 35 ILJ 2492 (LC) (4 March 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case
no: C18/2014
In
the matter between:
MATHLOKO
STEPHEN
MOTINGOE
Applicant
and
THE
HEAD OF THE DEPARTMENT OF THE
NORTHERN
CAPE DEPARTMENT OF ROADS
AND
PUBLIC
WORKS
First
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL OF
ROADS
AND PUBLIC
WORKS
Second
Respondent
NEVILLE
CLOETE
Third
Respondent
Date
heard: 21 February 2014
Date
delivered: 4 March 2014
Summary:
Application to suspend disciplinary proceedings pending adjudication
in terms of the
Protected Disclosures Act, 2000
; specific public
interest considerations when dealing with PDA application of this
nature.
JUDGMENT
Rabkin-Naicker
J
[1]
The applicant who is the Director and Head of Legal Services of the
Northern Cape Department of Roads and Public Works (the
Department),
seeks the following relief:
“
That the
disciplinary proceedings scheduled for 20 and 24 January 2014 be and
are hereby suspended pending the final determination
of the unfair
labour practice disputes by means of the process contemplated by the
General Public Service Sectoral Bargaining Council
and/or by the
Labour Court.”
[2]
The applicant has referred three disputes to the bargaining council
two of which allege that his suspension by the first respondent
and
the holding of a disciplinary hearing amount to
occupational
detriments
in terms of the Protected Disclosures Act, 2000 (the
PDA). At the date of hearing of the application there had already
been a consolidated
conciliation process and the parties were
awaiting the certificate of outcome of non-resolution of the
disputes.
Background
[3]
The applicant avers that his responsibilities include the performance
of functions relating to the Department’s supply
chain
management. Importantly one function known as legal vetting, is
derived from a National Treasury Instruction aimed at enhancing
compliance monitoring and improving transparency and accountability
in supply chain management. The breadth of the instruction
is
disputed by the respondents. It reads as follows:
“
3.6
Legal vetting of formal contracts or service level agreements
3.6.1 Prior
to signing a formal contract or service level agreement with a
contractor, accounting officers and authorities
must ensure that such
contracts or agreements are legally sound to avoid potential
litigation and to minimize possible fraud and
corruption. This must
include legal vetting by at least the Legal Services of the
institution.”
[4] According to the
applicant, legal vetting was institutionalized in the department,
under its previous head. It is evident from
the papers that the
applicant played a large part in developing the oversight mechanism.
The process involves a legal review of
the entire process of
procurement starting with the invitation to tender though the
evaluation and adjudication of bids. More than
90 per cent of the
Department’s services rely heavily on procurement and it
oversees multi-million rand projects. The applicant
alleges that
after first respondent’s appointment, legal vetting was
implemented sporadically, if at all. There were several
discussions
between applicant and first respondent with regard to this situation.
Applicant alleges there was unease and unhappiness
in first
respondent’s office regarding the process.
[5]
The tender process that preceded this application related to the
procurement of professional engineering services for the repair
of
slip downshutes and drainage at Theekloof Pass, one of the key
mountain passes linking the province with the Western Cape. The
applicant alleges that the tender evaluation report and minutes of
both the bid and bid adjudication committees, which are annexed
to
his papers contain the gravamen of irregularities he reported to the
Department’s Chief Financial Officer (CFO) in a memo
dated 29
May 2013 (the memorandum). It is this memorandum that applicant avers
is a protected disclosure under the PDA.
[6] According to the
applicant, the tender evaluation report departs from a flawed
evaluation premise and produces an equally flawed
result. The bid
evaluation committee failed to subject the report to any discernible
scrutiny and the bid adjudication committee,
while appearing to
accept the scores in the evaluation report, reflects scores that are
different from the final scores given in
the report without
explaining this. His memorandum regarding this bid states as follows:
1.
NC
272/2013: PROFESSIONAL ENGINEERING SERVICES: THE REPAIR OF SLIP
DOWNCHUTES AND DRAINAGE AT TEEKLOOF PASS NEAR FRASERBURG
According to the
information obtained from the documents submitted, this was a close
tender, where only specific companies were
requested to submit
proposals. I have not been advised of the reasons for this approach
and what process was followed to identify
the companies. According to
the memo prepared by Mr Bulane requesting a deviation from the normal
procurement process, which was
supplied to me later, he requests a
deviation “because of the speciality of the works and capacity
needed to repair the slip,
the request is to deviate from the normal
procurement system of appointing through roster system and the
contractor through advertising.”
This still does not explain
how the three companies were arrived at. In any event, the
recommended bidder, Bagale, is not on the
roster, and has
demonstrated no experience.
The documents submitted
are accompanied by an anonymous document titled “Tender
Evaluation Report” whose author is not
identified. I will
largely focus on this document as it appears to have determined the
outcome of the evaluation and adjudication
process.
In this document it is
alleged that the evaluation of the bids was done “according to
the procedures established in the CIDB
Best Practice Guideline# A3 in
respect of method 4. Whenever guideline# A3 is used it must be read
with Guideline # A4, which describes
the process for evaluating
quality in tender submissions. CIDB guideline# A3 cautions that
written reasons may have to be furnished
to tenderers for
administrative actions taken. This makes a detailed analysis of the
document all the more crucial to ensure that
there has been adherence
to the legally recognized procedures.
The document correctly
states that Method 4 envisages the evaluation of the financial offer,
quality and preferences. It also proceeds
to state that “quality
shall be scored independently by not less than three evaluators in
accordance with the following schedules….”
However, the
identity of the evaluators has not been disclosed, neither are the
individual scores allocated. The scores that have
been given to the
bidders are not attributed to any ascertainable procedure, thus there
is no explanation as to how the scores
were arrived at. This
compromises the objectivity and transparency that is mandated by the
Guidelines and the legal framework.
The document starts by
stating that the 90/10 preference points system will be used. Legally
the 90 points represent the financial
offer in every case, yet
bizarrely, the document proceeds to eliminate price and replace it
with quality in the entire evaluation
exercise. In fact this approach
is confirmed in a letter dated 10 April 2013 in which Mr Bulane
advises the bidders that “price
must be replaced with quality
on page T2, 16” which the bidders then proceeded to do. This
approach is not legally justifiable
as quality must be evaluated
separately in a two-envelope system and cannot be used as a
substitute for price. The approach adopted
here is in conflict with
the CIDB Guidelines which recognize quality only as part of the
preference package, and not as a possible
substitute for price.
The evaluation used here
implies the conflation of what would normally be a two-envelope
approach into a one-envelope system, with
one notable anomaly: the
total elimination of price or financial offer from the equation. The
evaluation of quality is nothing
more than the evaluation of
functionality that should be done in a two-envelope system. This
document makes bold to state that
“ the method of tendering
used is one envelope method where it will be Technically proposal and
no financials needed for
this tender as all fees are gazetted.”
This cannot fly as the financial offer in situations such as this
could involve the
evaluation of the discounts given.
In a two envelope system
quality is evaluated in the first envelope and only those bids that
pass the determined threshold proceed
to be evaluated on a 90/10
point system for price and preference in the second envelope.
In this case what should
have happened is this: the bids should first have been evaluated on
functionality (technical offer). Thereafter
their discounts and
preference claims would be evaluated as their financial offer and
preference claims.
The CIDB Method 4 does
not recognize a method that excludes financial offer from the
evaluation process.
What is also not clear is
how the points allocated for quality were arrived at. The members of
the committee that did the evaluation
and the scores they allocated
to the bidders are not revealed in the document. CIDB Best Practice
Guideline # A3 prescribes a process
and format that must be followed.
These do not appear to have been adhered to in this case.
What makes the
point-allocation even more suspect is that while the recommended
bidder, Bagale, has submitted no or very, very little
evidence in
relation to its experience relevant to the service required.
The BEC and BAC accepted
without any interrogation the score for quality as stated in the
document.
In short, the entire
procurement process is irregular and cannot support any legitimate
award.
In any event, the
recommended bidder, Bagale, would have been non-responsive for
failure to make an honesty disclosure in its declaration
of interest.
I have provided the profile of its directorship structure and also
the interests attached to its directors.”
[7] According to the
applicant his expectation was that unless his findings in the said
memo were founded on a factual misdirection,
which would be discussed
with him, no legitimate award would be made in the face of the
serious irregularities.
[8] It is applicant’s
case that in the wake of the memorandum he became aware of the
unusually close relationship between
his subordinates and the office
of the head of department. He states that there was a collapse of
discipline in his unit and every
time he tried to enforce it, his
staff would go to first respondent to complain. In July 2013, first
respondent appointed a legal
advisor in his office without notifying
applicant of the development. In August 2013, certain of his
subordinates were appointed
to bid committees without any
consultation with applicant which had never happened before. In
October 2013, a Mr Osman was appointed
to “investigate
management issues in Legal Services”. The applicant refers to
all these developments as “a pattern
of harassment”.
[9] Applicant informed
Osman that he believed the investigation was a thinly disguised ploy
to divert attention “from the
corruption in which the first
respondent was involved” and that he was using his subordinates
to undermine the authority
in his unit. He advised Osman “that
any investigation would have to involve the open examination of the
complaints of my
subordinates and that I also wish to put certain
questions to the First Respondent”.
[10] In August 2013
applicant became aware that in spite of the ‘identified
irregularities’, the first respondent had
gone ahead and
appointed Bagale Consulting to the Theekloof Pass contract. He then
alleges he made several attempts to bring the
matter to the attention
of the second respondent and when he could not secure an appointment
with him, he informed a certain Mr
Mohamed Sulliman, a senior
official in his office, about the alleged irregularities and
confirmed this in later correspondence
to second respondent.
[11] The applicant then
sought an appointment with the chairperson of the department’s
audit committee, Mr Chineme Ogu who
holds an office identified in the
department’s Whistle-blowing policy as being one to which
protected disclosure may be made.
Mr Ogu advised him to brief the
department’s senior internal auditors which he did. Applicant
also informed Mr Ogu that he
had since become aware that some tenders
where awarded contrary to the findings of the legal vetting process
and in some cases
contacts were awarded without the benefit of a
legal vetting.
[12] On the 1 November
2013, applicant sent an email to the second respondent to try and
secure a meeting with him and he avers
that: “I made him aware
of the existence of irregularities in which the first respondent was
implicated. I also informed
him that I had provided information in
this regard to the audit committee and that I had discussed the
irregularities with Mr Sulliman.”
[13] There followed a
meeting on 21 November called by the first respondent and also
attended by the Chief Director of Corporate
Services of the
Department Mr Slingers. The meeting was clearly heated as is apparent
from the different versions recorded by applicant
and first
respondent. What is common cause is that the first respondent told
applicant that he, applicant, was trying to blackmail
him in relation
to the allegations of tender irregularities. On the 22 November 2013
the applicant was suspended in terms of Paragraph
2.7(2)(a) of the
SMS Handbook for the Public Service. The reason given for the
suspension was that he was “suspected of serious
misconduct in
that you are disclosing confidential information from the department
to third parties”. The suspension letter
was signed by the
second respondent. It is noteworthy that there is no affidavit filed
of record by the second respondent.
[14] On the 26 November
2013, applicant was served with a notice to appear before a
disciplinary tribunal. The charges proffered
did not relate to the
disclosure of confidential information. They read as follows:
“
COUNT 1:
On or about the 22
nd
March 2011, The Member of Executive Council (MEC), the Honourable
David Rooi, issued instruction under his hand that no instruction
to
attorneys shall be issued, without prior consultation of the Head of
Department, subsequent to this instructions by the MEC.
You issued
various instructions to attorneys, without prior consultation with
the Head of Department, consequently you made yourself
guilty of
gross insubordination.
COUNT 2:
On or about the 21
st
November 2013, you were offensively contemptuous towards the Head of
Department, in that you treated the HOD with disdain, and
threatened
the HOD, and as such made yourself of the misconduct of insolence.
COUNT 3:
On or about 20 May 2008,
you declared in your Z83 application form the following:
“
I declare that
all the information provided (including any attachments) is complete
and correct to the best of my knowledge. I understand
that any false
information supplied could lead to my application being disqualified
or discharged if I am appointed.”
You know that the
information you supplied was not complete and correctly, as you
failed to disclose in your Z83, or accompanying
documentation that
you have been struck of the Roll of attorneys, consequently you have
committed the misconduct of fraudulent
misrepresentation, by omitting
to declare this crucial fact to your employer.
COUNT 4:
During your tenure as
Head Legal Services, you treated your subordinates with disdain, and
you victimized your subordinates, and
made the employment intolerable
for your subordinates, as such as you failed and/or neglected your
duties to ensure employment
justice at the workplace, resulting in
inefficiency at your workplace.”
[15] It is evident from
first respondents answering papers that he disagrees with applicant
on the function of legal vetting as
provided for in the Treasury
Directive. Referring to Clause 3.6.1 of the Treasury Directive he
avers that:
“
It is clear that
legal vetting related specifically to “formal contract or
service level agreements”, and his duty of
Legal Vetting is
limited: “{to} ensure that such contracts or agreements are
legally sound to avoid potential litigation
and to minimize possible
fraud and corruption”. Nowhere is this Treasury Note does it
state that the Applicant should be
legally vetting the tender
process. This process, I believe has sufficient stop fail measures.
In addition I hold the
view that the Supply Chain process is better managed by Supply Chain
fundis/technocrats. This view is wholly
supported by the Treasury
Note, and an opinion of Treasury, wherein, Treasury stated that if
you are not a member of the Bid Evaluation
Committee or Bid
Adjudication Committees you are not entitled to have access to any of
the documentation, see annexure ‘A”.
In the Department there
was an absolute flaunting of Supply Chain Process, as the Applicant
was privy, to information; Applicant
was not entitled to, under the
guise of Legal Vetting.”
[16]
The opinion contained in the said annexure ‘A’ is a
letter to the first respondent dated 14 January 2014 by the
General
Manager of Assets and Liabilities of the Northern Cape Provincial
Treasury. It states in answer to a request from first
respondent for
an outline of the procurement process in terms of supply management
guidelines that : “it should be emphasized
that the vetting of
the recommended supplier is performed by a supplier chain
practitioner as per the instructions of the bid adjudication
committee. A person who is not a member of the bid adjudication
committee may not participate in the vetting process as this could
compromise the confidentiality of the bid evaluation and adjudication
process.”
[17]
It is important to record the first respondent’s answer to the
memorandum as set out in paragraphs 29-35 of the answering
papers:
“
29.
In relation to the so called “ Theekloof Pass” tenders,
which the Applicant alleges
was improperly awarded I wish to state as
follows:
29.1
That the process was properly evaluated by a technical committee, of
engineers who produced a Tender
Evaluation Report, see annexure
“
MSM5”
29.2
The Technical Committee overstepped its powers, when it steered into
the domain of the Bid Evaluation
Committee when it provided points
for BEC and BAC. This function is for Supply Chain exercise.
29.3
The process of Supply Chain Management is always vetted by the
relevant experts, who advise the other
committee. What is peculiar is
this instance was the interests of the Applicant had in this
particular tender, to an extent of
contradicting the experts, and
trying to mislead the CFO, by stating that Bagale, does not have the
necessary expertise. I am not
sure what the interests of the
Applicant is in this particular matter. In fact in the past the
Applicant never used to interfere
with technical reports, as he has
done in this instance.
30.
The Tender was considered by the Bid Evaluation Committee and
adjustment in the form of
8 points was made in relation to this issue
of BBBEE Certificate, the comment state:
“
Bidder does not
qualify for preference as he submitted an uncertified copy of BBBEE”
this was in relation to Jeffares and
Green
.
31.
Thereafter it went to the Bid Adjudication Committee, this in any
event falls outside the
legal vetting, and as such any so called
legal vetting was irregular.
32.
I need to draw it to this Honourable Courts’ attention that the
allegation that Bagale
was not technically competent to carry out the
project is a fallacy at worst, if it was not made with the intention
of malice.
33.
Bagale Consulting (Pty) Ltd, which is the contentious bidder,
according to Applicant, was
in the process of repairing flood damage
on the Theekloof Pass, when another part of the Theekloof Pass,
collapsed due to flood
damage. The Department decided to enlist the
services of Bagale Consulting (Pty) Ltd once they have completed
repairs on the side
were they were busy.(sic)
34.
Bagale did the designs and the scoping of the work to be done, on the
side that collapsed.
The Department decided to enlist the services of
Bagale to do the repairs, but realized the price to do the repairs,
would have
resulted in the contravention of the Supply Chain
Management Relations. It was then decided to go out on tender, but it
should
be noted that the Department was already spending an amount in
excess of R160 000.00 ( Hundred and Sixty Thousand Rand), per
month on traffic control at the site in Theekloof Pass, to direct
traffic, so as to ensure the safe passage of motorists.
35.
It was therefore an urgent situation that required immediate action
by the Department. In
addition to the fact that Bagale just completed
repairs on one side of Theekloof Pass, meaning that they were aware
pitfalls of
the project. The Department held the view that it would
be prudent to enlist the services of Bagale, as they have already
done
the designs, scoping and as such it will avoid fruitless and
wasteful expenditure. If a new company’s services has to be
enlisted, as they surely will want to do the designs first. In fact
this would have delayed the repairs, and it would have been
high risk
to the motoring public. It should also be drawn to the courts
attention that the pricing structure of the entire consultants
are
gazetted.
36.
These allegations of irregularities or corruption is grounded on the
fallacy that the Applicant
is the paragon of correctness, where it
comes to tenders. In such as much as, I have shown herein that the
Applicant in the first
place should never have been involved to the
extent that he has been in the Supply Chain Management, as his
function of legal vetting
does not entail adjudication and awarding
tenders, which appears to be the bone of contention behind the
corruption allegations.
[18]
In reply to the above explanation, the applicant states inter alia
the decision to tender to Bagale long before the tender
was
advertised made the process a sham explaining the anomalies he had
recorded in his memorandum. He alleges the invitation of
the other
companies to bid was then a poorly disguised attempt at giving the
process a veneer of legitimacy. Furthermore, the problems
at the pass
had been there for more than a year and any urgency was self-
created. Moreover applicant asserts that Bogale did not
have the
required expertise to do the work which was a quite different project
from that on the other side of the Pass.
Evaluation
[19] The court has to
decide whether the interim relief sought in this application should
be granted. It is trite that in an application
such as this the
applicant must establish the following:
(i)
A prima facie right, even though open to some doubt;
(ii)
a well- grounded apprehension of irreparable harm if the interim
relief is not granted;
(iii)
absence of an alternative remedy;
(iv)
a balance of convenience in favor of granting the interim relief.
[20] Where the applicant
cannot show a clear right, and more particularly where there are
disputes of fact, the Court's approach
in determining whether the
applicant's right is prima facie established, though open to some
doubt, is to take the facts as set
out by the applicant, together
with any facts set out by the respondent which the
applicant cannot dispute, and
to consider whether, having regard to
the inherent probabilities, the applicant should on those facts
obtain final relief at the
trial of the main action.
[1]
[21]
In
Palace
Group Investments (Pty) Limited and Another versus Mackie
[2]
the
Labour Appeal Court dealing with a similar application stated with
regards to the first pre-requisite above that:
“…
it is
necessary to assess whether an applicant has, prima facie,
established a right capable of protection. In the context of this
particular matter, this calls for a determination of whether the
information disclosed by the respondent prima facie falls within
the
definition of a protected disclosure; put differently, whether such
information prima facie qualifies as a protected disclosure.
The question is whether
the respondent had put sufficient information at the disposal of the
court a quo to enable it to determine
where had had shown a prima
facie right to entitlement to the protection afforded by the PDA.
This inevitably calls for an assessment
and analysis of the
information disclosed ….in the founding affidavit ….to
determine whether it amounts to a disclosure.
If it constitutes a
disclosure, the next question would be whether such disclosure is
protected. If the disclosure amounts to a
protected disclosure, the
next consideration would be whether the respondent was subjected to
an occupational detriment.”
[3]
[20]
The PDA defines a disclosure as follows:
'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;”
[21] The memorandum in
question falls within the category of a disclosure in terms of the
PDA, in that it tends to show that a person
has failed, is failing or
is likely to fail to comply with any legal obligation to which that
person is subject. Considering the
founding and answering affidavits,
it is apparent that first respondent’s version of the tender
process itself confirms that
the procurement process was not
conducted according to the requisite prescripts. These are contained
in the
Public Finance Management Act, 1999
, and the prescripts of the
Constructional Industry Development Board (CIDBA), inter alia.
[22]
The next issue to consider is whether there are prospects of success
in the main action establishing that the disclosure is
protected.
A protected disclosure is defined as follows:
“
'protected
disclosure' means a disclosure made to-
(a)
a legal adviser 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
; or
(e)
any other person or body in accordance with
section 9
, but does not
include a disclosure-
(i)
in respect of which the employee concerned commits an offence by
making that
disclosure; or
(ii)
made by a legal adviser to whom the information concerned was
disclosed in the course of
obtaining legal advice in accordance with
section 5
;
[22]
In casu the disclosure was made to the applicant’s employer
(the CIO inter alia), the chairman of the audit committee
in
accordance with the department’s whistle-blowing policy, and to
the second respondent.
Sections 6
and
7
of the PDA provide:
6 Protected
disclosure to employer
(1) Any disclosure
made in good faith-
(a)
and substantially in accordance with any procedure prescribed, or
authorised by the
employee's employer for reporting or otherwise
remedying the impropriety concerned; or
(b)
to the employer of the employee, where there is no procedure as
contemplated in paragraph
(a),
is a protected
disclosure.
(2) Any employee who,
in accordance with a procedure authorised by his or her employer,
makes a disclosure to a person other than
his or her employer, is
deemed, for the purposes of this Act, to be making the disclosure to
his or her employer.
7 Protected
disclosure to member of Cabinet or Executive Council
Any disclosure made in
good faith to a member of Cabinet or of the Executive Council of a
province is a protected disclosure if
the employee's employer is-
(a)
an individual appointed in terms of legislation by a member of
Cabinet or of the Executive
Council of a province;
(b)
a body, the members of which are appointed in terms of legislation by
a member of
Cabinet or of the Executive Council of a province; or
(c)
an organ of state falling within the area of responsibility of the
member concerned.
[23]
The issue in dispute between the parties in this part of the enquiry
is whether the disclosures were made in good faith. I
must consider
the inherent probabilities – does the applicant have an agenda
to exercise more power than he is due in the
department, as contended
by the first respondent. As the first respondent puts it, does he
wish to wag the tail of the dog? Or
is he primarily motivated by his
fiduciary duty to ensure that steps are taken to prevent
irregularities and corruption in the
tender processes, which he sees
as his function in terms of the relevant Treasury Instruction. In my
judgment, on the papers before
me, it is more inherently probable
that the latter motivation should be ascribed to the applicant. This
is a matter that will be
properly ventilated when oral evidence is
heard and the dispute finally determined.
[24]
The next question to ask is whether prima facie the disciplinary
steps of suspension and charges against the applicant are
an
occupational detriment. The PDA defines an
occupational detriment
as:
'occupational
detriment', in relation to the working environment of an employee,
means-
(a) being subjected to
any disciplinary action;
(b) being dismissed,
suspended, demoted, harassed or intimidated;
(c) being transferred
against his or her will;
(d) being refused
transfer or promotion;
(e) being subjected to
a term or condition of employment or retirement which is altered or
kept altered to his or her disadvantage;
(f) being refused a
reference, or being provided with an adverse reference, from his or
her employer;
(g) being denied
appointment to any employment, profession or office;
(h) being threatened
with any of the actions referred to paragraphs (a) to (g) above; or
(I) being otherwise
adversely affected in respect of his or her employment, profession or
office, including employment opportunities
and work security;”
[25]
Given the content of the letter of suspension written by the second
respondent (who has chosen not to depose to an affidavit
in these
proceedings) I accept that a nexus between the disclosure and the
subsequent disciplinary steps has been established to
the level of
proof required by these proceedings. It is not necessary for this
court to examine the nature of the charges that
followed on the
suspension, save to note that the ‘disclosure of confidential
information’, the professed reason for
the suspension, does not
feature in them.
[26]
Having found that the applicant has met the requirement of a prima
facie right, I consider whether the balance of convenience
favors the
relief sought and whether a hearing in due course in this court
(after the disciplinary hearing takes place) is to be
considered a
suitable alternative remedy in this case. The applicant requested the
department to postpone the disciplinary proceedings
pending the
finalization of the whistleblowing disputes. This they refused to do.
In my judgment the prejudice to the applicant
should the disciplinary
charges go ahead before the PDA dispute is adjudicated is to be
considered greater than the financial prejudice
to the Department of
keeping applicant on paid suspension.
[27]
Moreover, there must be public interest considerations involved in
exercising the discretion to suspend disciplinary proceedings
where
it has been shown that an applicant has established a prima facie
right, although open to some doubt, that an
occupational detriment
has been committed. It is apposite to note that the preamble to the
PDA provides that:
“
Preamble
Recognising that-
•
the Bill of Rights in
the Constitution of the Republic of South Africa, 1996, enshrines the
rights of all people in the Republic
and affirms the democratic
values of human dignity, equality and freedom;
•
section 8 of the Bill
of Rights provides for the horizontal application of the rights in
the Bill of Rights, taking into account
the nature of the right and
the nature of any duty imposed by the right;
•
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;
And bearing in mind
that-
•
neither the South
African common law nor statutory law makes provision for mechanisms
or procedures in terms of which employees
may, without fear of
reprisals, disclose information relating to suspected or alleged
criminal or other irregular conduct by their
employers, whether in
the private or the public sector;
•
every employer and
employee has a responsibility to disclose criminal and any other
irregular conduct in the workplace;
•
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;
And in order to-
•
create a culture which
will facilitate the disclosure of information by employees relating
to criminal and other irregular conduct
in the workplace in a
responsible manner by providing comprehensive statutory guidelines
for the disclosure of such information
and protection against any
reprisals as a result of such disclosures;
•
promote the
eradication of criminal and other irregular conduct in organs of
state and private bodies,
BE IT THEREFORE
ENACTED by the Parliament of the Republic of South Africa, as
follows:-”
[29]
The question as to whether an alternative remedy exists must be
examined recognizing that the PDA’s definition of
occupational
detriment
is
very wide. In
Booysen
v Minister of Safety & Security & others
[4]
the Labour Appeal Court found that the Labour Court has jurisdiction
to interdict any unfair conduct including disciplinary
action.
However it held that such an intervention should be exercised in
exceptional cases. It was not appropriate to set out the
test, and it
had to be left to the discretion of the Labour Court to exercise its
powers having regard to the facts of each case.
Amongst the factors
to be considered would be whether failure to intervene would lead to
grave injustice or whether justice might
be attained by other means.
In my judgment the test for intervening in disciplinary proceedings
by means of the relief sought in
the type matter before me cannot be
simply equated to a cause of action that is not based on the PDA such
as the matter in
Booysen
.
Therefore I do not consider that the “exceptional”
principle should be applied in casu, and a court may be more inclined
to exercise its discretion to interdict disciplinary proceedings in a
PDA matter. This approach takes into consideration both the
ambit of
the definition of
occupational
detriment
in
the PDA, and the public interest considerations which the PDA enjoins
the court to consider.
[26]
In all the above circumstances, I consider it to be in the interests
of justice that the interim relief applied for is granted.
The
applicant represented himself in these proceedings and I will not
make a costs order:
Order:
1.
The disciplinary proceedings which were scheduled for 20 and 24
January 2014 are hereby suspended pending the adjudication of
the
disputes between the parties referred to the GPSSBC alleging
occupational detriments in contravention of the
Protected Disclosures
Act, 2000
_
______________
Rabkin-Naicker
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: In person
For
the Respondent: Advocate TC Tshavhungwa instructed by Mijila and
Partners
[1]
See
Gool v Minister of Justice and Another,
1955 (2) SA 682
(C) at pp.
687 - 8; Pietermaritzburg City Council v Local Road Transportation
Board,
1959 (2) SA 758
(N) at p. 772.
[2]
JA52/12
heard on 28 May 2013
[3]
At
paragraphs 19 and 20
[4]
(2011) 32 ILJ 112 (LAC)