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[2014] ZALCCT 71
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Motingoe v Head of the Department: Northern Cape Department of Infrastructure And Public Works and Another (C373/2014) [2014] ZALCCT 71 (12 December 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, KIMBERLEY
JUDGMENT
Case
no: C373/2014
DATE:
12 DECEMBER 2015
Not
Reportable
In
the matter between:
MATHLOKO
STEPHEN
MOTINGOE
.................................................................................
Applicant
And
THE HEAD OF
THE DEPARTMENT:
NORTHERN CAPE
DEPARTMENT OF
INFRASTRUCTURE
AND PUBLIC
WORKS
.........................................................
First
Respondent
THE MEMBER OF
THE EXECUTIVE COUNCIL:
NORTHERN CAPE
DEPARTMENT OF
INFRASTRUCTURE
AND PUBLIC
WORKS
.....................................................
Second
Respondent
Date
Heard: 27 October – 28 October 2014
Date
delivered: 11 December 2014
As
varied on 12 December 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
The Constitution commits us to effective, accountable and transparent
governance. The role of individuals in securing this goal
was
recently emphasised by Van der Westhuizen J in
Helen Suzman
Foundation v President of the Republic of South Africa and Others;
Glenister v President of the Republic of South Africa
and Others
[2014] ZACC 32
, where he said:
Corruption
threatens the very existence of our constitutional democracy.
Effective laws and institutions to combat corruption are
therefore
absolutely essential. It is the task of the courts – and this
Court in particular – to ensure that legal
mechanisms against
corruption are as trustworthy and tight as possible, within the
demands and parameters of the Constitution.
But
courts can only do so much. A corruption-free society can only
develop in the hearts and minds of its people – particularly
the ones occupying positions of political and economic power. We need
dedication to the spirit and high aspirations of the Constitution.
[1]
[2] One of the
stated purposes of the Protected Disclosures Act, 26 of 2000, (the
PDA) is to promote the eradication of criminal
and other irregular
conduct in organs of state and the private sector. The PDA does so by
creating a culture that will facilitate
the disclosure of information
about irregular conduct by employees, in a responsible manner, and in
which they will be protected
against any reprisals consequent on any
disclosures that they make.
[2]
The PDA is therefore an important element of the fight against
corruption. It enables those employees who are dedicated to
the
‘spirit and high aspirations of the Constitution’ to make
disclosures without fear of reprisal by their employers.
[3] The applicant
is employed as a legal adviser by the Department of Infrastructure
and Public Works in the Northern Cape Province.
In November 2013, the
applicant was suspended and called to a disciplinary hearing. He
contends that these are occupational detriments
initiated consequent
on disclosures that he made to his employer regarding the awarding of
a contract to repair the Theekloof Pass.
The applicant seeks an order
declaring that he made a protected disclosure and that his suspension
and the pending disciplinary
hearing are occupational detriments. He
also seeks compensation on account of the occupational detriments
that he has suffered.
Material
facts
[4] The applicant
gave evidence on his own behalf. The respondents called two
witnesses, a Ms Freda Tsimane, who at the relevant
time was the chief
financial officer, and a Mr Itumeleng Bulane, the chief engineer. The
following factual background emerges from
the evidence.
[5] On 1
September 2008, the applicant was employed by the Department of
Infrastructure and Public Works of the Northern Cape Province
as head
of legal services. He currently occupies the same post. As head of
legal services, the applicant is the legal adviser to
the department
and manages a unit known as legal services. In this capacity, the
applicant is required, amongst other things, to
ensure good
governance in the department by ensuring that the department complies
with relevant legislative and other regulatory
measures.
[6] The
department’s mandate is vast and includes the establishment and
maintenance of provincial infrastructure. In particular,
the
department is responsible for the construction and maintenance of
provincial roads, the construction and maintenance of schools,
clinics, hospitals, libraries and the construction and procurement of
office accommodation for other provincial departments. Further,
the
department is the custodian of all provincial fixed assets.
[7] After the
applicant assumed duty in 2008, it is not disputed that the applicant
recognised weaknesses in the department’s
procurement system.
In particular, the applicant observed that tender documents did not
comply with the prescribed requirements,
that there were weaknesses
in the manner in which tenders were awarded, that contracts were
being varied without sufficient legal
justification and that there
was very poor project and contract management. All of this had made
the Department the target of litigation
which it had little prospect
of defending with any degree of success. In consequence, in 2010, the
legal services unit initiated
a review of the department supply chain
management practices. This process was spearheaded by the applicant,
with the primary aim
of overhauling the department’s
infrastructure procurement to ensure that it complied with the
recognized legal framework.
Procurement processes were improved to
achieve systemic efficiency, project and contract management
practices were revised and
stricter controls imposed on contract
variations. These measures were adopted in 2010 by the then head of
Department and accounting
officer, a Mr van Heerden.
[8] In May 2011,
the National Treasury issued an instruction to improve accountability
and to provide supply chain directives to
accounting officers of
departments. The relevant part of the instruction 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.
[9] The
instruction specifically aimed, amongst other things, to improve
transparency and to combat fraud. The instruction obliges
accounting
officers, prior to signing any formal contract or service level
agreement with the contract, to ensure that the agreements
are
legally compliant and to minimise possible fraud and corruption. In
terms of instruction, this was specifically to include
legal vetting
by the legal services department of the institution concerned. This
instruction was incorporated as part of the Department’s
control measures.
[10] In 2011, Van
Heerden was transferred and replaced by the first respondent, a Mr.
Nogwili.
[11] The
applicant avers that after Nogwili’s appointment, the controls
introduced by Van Heerden were relaxed. In particular,
legal vetting
was not done, and major tenders were awarded without any regard to
the National Treasury instruction. Vetting was
reintroduced only
after Nogwili had awarded a contract for the construction of the
Kimberley Mental Health Hospital to a company
that was not registered
with the construction industry development board, as required. Legal
vetting was re-introduced after the
embarrassment caused to the
department by this incident.
[12] During the
course of May 2013, the supply chain management unit presented the
applicant with tender documents for legal vetting.
The documents
included bids submitted, evaluation reports and the minutes of the
bid evaluation and adjudication committees. The
tender related to the
procurement of professional engineering services for the repair of
slip, down chutes and drainage at the
Theekloof pass. The Theekloof
pass is a mountain pass near Fraserburg, connecting the Northern Cape
and Western Cape provinces.
[13] The
applicant testified that when vetting the tender documents, he
discovered a number of irregularities. The first of these
is that
only three companies had been invited to bid in what was referred to
as a closed tender, without any justification or explanation
as to
how those companies had been selected. The applicant expressed the
view that this was a contravention of the relevant regulatory
requirements.
[14] The second
concern raised by the applicant was that one of the companies,
recommended by the bid adjudication committee for
award, had been
allocated the highest score for experience despite the fact that in
its tender submission, there was nothing to
indicate that it had ever
undertaken the specialised work in respect of which the tender had
been issued.
[15] Third, the
applicant noted that while the evaluation of the tenders had
ostensibly been done in accordance with method for
of the CIDB
prescripts, the evaluation of price had been eliminated from the
process. Further, there is no indication as to how
the points
allocated had been arrived at and the identity of the persons who had
evaluated the tenders and their individual scores
had not been
disclosed.
[16] Fourthly,
the recommended bidder, Bagale Consulting (Pty) Ltd, had not made an
honest disclosure of its interests. This should
have rendered the
tender non-responsive.
[17] The
applicant recorded his views in a memorandum dated 29 May 2013, which
he addressed to the department’s chief financial
officer,
Tsimane. The memorandum forms the basis of the protected disclosure
for which the applicant contends. It reads 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.
[18]
It is not necessary for me to canvass the content of the memorandum
or whether it correctly identifies a breach of the relevant
regulatory measures, nor is it necessary to traverse the evidence
relating to the preparation of the technical report and the
deliberations of the bid evaluation and bid adjudication committees.
Tsimane, who testified for the respondents, stated that she
received
the memorandum, read it, and advised Nogwili that in consequence of
the irregularities identified by the applicant, the
technical report
should be redone. Under cross-examination, Tsimane conceded that the
identification of the three companies that
were selected to tender
for the Theekloof project was irregular, that the evaluation done by
the technical committee and contained
in the technical report was
irregular, that the company that had been awarded the tender, Bagale
Consulting, did not qualify to
be considered for appointment because
it had misrepresented its interests, that the entire procurement
process in respect of the
project was irregular, that the contents of
the applicant’s memorandum dated 29 May 2013 were correct, and
that Nogwili had
acted irregularly in appointing Bagale Consulting.
Tsimane also testified as to the applicant’s competence as a
legal adviser
– she stated that the legal vetting reports
prepared by the applicant and submitted to her had consistently been
correct.
[19]
The undisputed evidence before the court then is that by August 2013,
Nogwili had before him a memorandum from his legal adviser
recording
at least four material irregularities in the tender process in
relation to the recommendation that Bagale Consulting
be awarded the
contract in relation to the Theekloof project, and a recommendation
from Tsimane, his chief financial officer, that
the technical report
be redone, on account of the irregularities identified by the
applicant.
[20]
The applicant testified that in or about August 2013 he became aware
that despite his memorandum, Nogwili had awarded the Theekloof
Pass
contract to Bagale Consulting. He made several attempts to bring the
matter to Nogwili’s attention and when he could
not secure an
appointment with him, he informed a Mr Mohamed Sulliman, a senior
official in his office, about the alleged irregularities
and
confirmed this in later correspondence addressed to Nogwili.
[21]
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 disclosures may be
made. The meeting
took place on 2 September 2013. At the meeting, the applicant
reported to Ogu the irregularities that he had
discovered in the
awarding of the tender to Bagale Consulting. He also provided Ogu
with a copy of the memorandum dated 29 May
2013. Ogu advised the
applicant that he should also brief the department’s senior
internal auditors, which he did.
[22]
On the 1 November 2013, the applicant sent an email to the Nogwili 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
.”
[23]
The applicant met with Nogwili on 21 November 2013. At the meeting,
the applicant informed Nogwili that he had furnished information
to
Ogu regarding the appointment of Bagale Consulting. On 22 November
2013 the applicant was suspended in terms of Paragraph 2.7(2)
(a) of
the SMS Handbook for the Public Service. The applicant was suspended
by the second respondent. Whether the second respondent
had the
authority to suspend the applicant is the subject of a dispute that
need not be determined for present purposes. 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 on record
by the second respondent.
[24]
On 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.”
[25] The
applicant referred a dispute to the bargaining council in which he
contended that his suspension and the disciplinary hearing
constituted occupational detriments for the purposes of the PDA. On 4
March 2013, this court granted an interim order in terms
of which the
disciplinary enquiry was suspended pending the outcome of these
proceedings.
[26] This factual
background is not in dispute. During the course of the trial, a few
factual disputes emerged, but none of them
are material. I should add
that the applicant made a good impression when he gave evidence. He
gave his evidence confidently and
stood up to cross-examination well.
Nothing that he said was seriously called into question. Tsimane, who
is no longer employed
by the department, was initially reluctant to
make concessions during cross examination but when she did, as will
appear from the
above summary, these were devastating to the
respondents’ case. Tsimane was candid enough to admit that once
the applicant
had advised her of the irregularities relating to the
Theekloof project, she thought it sufficient to advise Nogwili that
the technical
evaluation report should be redone. Unlike the
applicant, who had the courage to take matters further, Tsimane
considered that
she had discharged her duties once she had provided
Nogwili with her advice; what Nogwili did with that advice was of no
concern
to her. Bulane’s evidence did not take matters much
further. He testified that he did not regard himself as an expert in
supply chain management and that Tsimane was far more knowledgeable
in these matters. He was the chairperson of the technical committee
that evaluated the tenders and testified that the committee had
derived the score for experience awarded to Bagale Consulting on
the
basis of his personal knowledge and that entity’s previous
involvement in work conducted on the Theekloof Pass.
[27] Although the
respondents indicated in the pre-trial minute that they intended to
call Nogwili as a witness, he was not called
to give evidence.
The issues
[28] As I have
indicated, the applicant contends that his suspension and the
institution of disciplinary proceedings against him
constitute an
occupational detriment for the purposes of the PDA. He seeks a
declaratory order to this effect, and compensation
in the form of a
solatium
. The respondents dispute that the applicant made a
protected disclosure in terms of s 6 of the PDA. If it is found that
the applicant
made a disclosure for the purposes of the PDA, the
respondents contend that the disclosure was not made in good faith
and that
it is therefore not protected.
[29] The crisp
issues for decision then are whether the applicant made a disclosure
in terms of s 6 of the PDA and if so, whether
the disclosure was made
in good faith.
Applicable
legal principles and analysis
[30]
The applicable legal principles are well-established. Section 1 of
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;”
[31]
The respondents contend that the memorandum addressed by the
applicant to Tsimane on 29 May 2013, was nothing more than a document
recording the applicant’s observation on the review that he
performed on the documents made available to him. The memorandum,
as
I understand the argument, was nothing more than a communication made
by the applicant in his official capacity and in the discharge
of his
normal duties relating to the legal vetting of the tender documents
[32]
The definition of a ‘disclosure’ requires only that
information disclosed relates to the conduct of an employer
or some
other person employed by their employer, where the employee making
the disclosure believes that the information shows or
tends to show
one of the matters listed in paragraphs (a) to (g) of the definition.
They can be no question that the applicant’s
memorandum, even
though it was prepared in the ordinary course of his duties, clearly
showed a failure by the officials concerned
to comply with the
obligations imposed on them by the relevant regulatory measures. It
is not disputed that the memorandum was
addressed, again in the
ordinary course, to Tsimane. But I do not understand the applicant’s
evidence to be that the preparation
of the memorandum or the
submission of that memorandum to Tsimane constituted the disclosure
on which he relies. It is clear from
the evidence that it was only
when the applicant discovered in August 2013 that despite his advice
that the awarding of the tender
to Bagale Consulting was irregular,
that he then sought in terms of the applicable policy to raise the
issue with Sulliman and
then Ogu, the chairperson of the audit
committee.
[33]
In my view, the applicant’s memorandum and his later disclosure
of its contents to Ogu constitutes a disclosure in terms
of the PDA,
at least 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. The fact that the memorandum had been
prepared in the ordinary course of business is
of no consequence; it
was Nogwili’s failure to heed the applicant’s advice
(which the respondents’ own witness
conceded was correct) and
in particular his appointment of Bagale Consulting contrary to that
advice that triggered the applicant’s
making of a disclosure on
the basis of his previously prepared memorandum. Put another way,
there was a failure by the respondents
to comply with their legal
obligations only once the decision was made to appoint Bagale
Consulting in the face of the applicant’s
advice that any such
appointment would contravene the relevant regulatory measures, and
the applicant’s later disclosure
of the memorandum to Ogu
triggered the protections afforded by the Act. Although the applicant
may not have considered himself
as a whistleblower when he wrote the
memorandum, at the point of disclosure of the memorandum and the
information contained in
it to Ogu, his evidence is clear – he
regarded himself as a whistleblower. There is no other reason why the
applicant, after
learning that despite his advice Bagale Consulting
had been awarded the tender, would initiate a meeting with Suliman
and then
Ogu. The applicant under cross-examination in a context
where his evidence in relation to the memorandum he had written (and
other
previous memoranda) and its status as a protected disclosure
was being probed. He is recorded as saying:
Yes,
I mean that is evidence before this court that in fact of the actions
that were taken against me were taken precisely because
I had made
this information available contained in the memorandum and the
memorandum itself available to the chairperson of the
audit
committee. And that is what triggered the occupational detriment. I
made this information available to 3
rd
parties.
[34]
In short, I am satisfied that the applicant made a disclosure for the
purposes of the PDA.
[35]
The next issue (and indeed, the only substantive issue raised by
these proceedings), is whether 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;
[36]
The applicant avers that he made a protected disclosure to his
employer in terms of section 6 of the PDA. Section 6 provides:
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.
[37]
As I have indicated, the parties do not dispute that any disclosure
made by the applicant was made in terms of the applicable
procedure.
The primary issue in dispute between the parties in this part
of the enquiry is whether the disclosures were made
in good faith.
The applicant made the disclosure he did at considerable personal
cost and not for personal gain. This in itself
is evidence of his
bona fides
. The applicant’s responsibility is to ensure
that the department act within the ambit of the law and his actions
are entirely
consistent with the faithful discharge of his
professional obligations. There is no evidence whatsoever that the
applicant made
the disclosure he did for an ulterior or malicious
purpose, all with the intention to harass or discredit his employer.
On the
contrary, the evidence of the respondent’s own witness
Tsimane was that the applicant’s memorandum was not only
correct,
but that his report said consistently been correct and that
in her view, the applicant’s findings were not motivated by
malice.
[38]
Finally, there is the issue of whether the actions taken by the
respondent against the applicant constitute 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;…
[39]
It is not disputed that the applicant’s suspension and his
being subjected to disciplinary action constitute occupational
detriments, were it to be found that the applicant made a protected
disclosure in compliance with section 6 of the PDA.
[40]
Insofar as the respondents contend that there is a genuine
disciplinary process under way relating to serious charges of
misconduct
made against the applicant, this court is not called on to
determine the merits of those charges. All that the court need
determine
is whether there is any nexus between the disciplinary
charges brought against the applicant and the disclosure that he
made. This
is not an issue that the respondents have pertinently
addressed, but it would seem obvious to me given the temporal
coincidence
between the applicant’s disclosure and the filing
of the charges against him that the charges constitute nothing more
than
a form of reprisal against the applicant. This conclusion is
fortified by a moment’s glance at the nature of the charges –
they are vague (particularly insofar as they call into question the
nature of relationships between the applicant and his superiors
and
subordinates), and at least some of them relate to incidents that
occurred years ago. None of the witnesses called by the respondent
could give any evidence as to the genuineness of any of the charges.
As I have indicated, the respondents’ case was closed
without
their leading the evidence of those individuals, and in particular
Nogwili, who were best placed to establish at least
a degree of
credibility in relation to the disciplinary process itself and the
charges in particular. In the absence of that evidence,
the court
accepts the evidence tendered by the applicant that the charges
brought against him were nothing less than a desperate
reprisal for
his having made a protected disclosure and more generally, an attempt
to rid the Department of an employee who insisted
on compliance with
the relevant regulatory measures and who was intent on holding the
Department to account in this regard.
[41]
For the above reasons, in my view, the applicant has succeeded in
establishing that he made a disclosure that is protected
in terms of
the PDA and that his suspension and the pending disciplinary
proceedings brought against him constitute occupational
detriments
for the purposes of the Act.
Remedy
[42]
In
Minister of Justice & Constitutional Development v
Tshishonga
(2009) 30
ILJ
1799 (LAC), the Labour Appeal
Court considered an appeal against an award of 12 months remuneration
and compensation for an unfair
labour practice and legal costs
arising out of a disciplinary enquiry instituted by the Department.
In the court
a quo
, the judge had taken into account a number
of considerations; in particular, that compensation is redress for
both patrimonial
and non-patrimonial loss. The court also took into
account all of the developments up to and after the occupational
detriment and
considered them to be relevant cumulatively toward the
assessment of compensation. In that matter, the court further took
into
account the employer’s failure to investigate the
disclosure and the subsequent retaliation as factors which must
necessarily
count against employer. The conduct of the employer in
failing to resolve the dispute and the attraction of the matter was
also
taken into account. The Labour Appeal Court noted that the acts
which fall within the scope of the definition of occupational
detriment
in s1 of the PDA are deemed to be an unfair labour
practice. On that basis, it is necessary to have regard to s 194 (4)
of the
Labour Relations Act, the section governing compensation for
unfair labour practices. This section provides that compensation must
be just and equitable, but not more than the equivalent of 12 months’
remuneration. the Labour Appeal Court took into account,
for the
purposes of calculating an amount of compensation that was just and
equitable in the circumstances, the embarrassment and
humiliation
suffered by the respondent in that case, his being removed with
immediate effect from the business unit in which he
was engaged and
there after being subjected to a suspension and subsequent
disciplinary hearing. This embarrassment and humiliation
was found
also to have affected the family of the respondent, whose wife his
children. The court considered that in calculating
compensation for
non-patrimonial loss, some assistance could be gained from
jurisprudence relating to the award of a
solatium
in terms of
the
actio injuriarum
. In these cases, the award is one that
seeks to redress to a person who has suffered an attack on the
dignity and reputation. Ordinarily,
factors relevant to the
assessment of damages include the nature and seriousness of the
injuria
, the circumstances in which the infringement took
place, the behaviour of the defendant (especially whether the motive
was honourable
or malicious), the extent of the plaintiff’s
humiliation or distress, the abuse of a relationship between the
parties, and
the attitude of the defendant after the
injuria
had taken place (see paragraph [18] of the judgment). In
awarding the applicant an amount of R100 000 in compensation, the
court took into account that the respondent had been the victim of
unfortunate attacks on his dignity and integrity made by the
Minister
of Justice on national television, that this had been grossly unfair
and irresponsible conduct on the part of the minister
and compounded
by the role played by the respondent in seeking to promote integrity
in government and the indignity that he suffered
in losing his
employment.
[43]
There are obvious parallels between the facts of
Tshishonga
and the present matter. The applicant holds a senior position in the
department and has been its legal adviser for a long time.
Before
that, he was a legal adviser in the Department of Education, also for
a long period. He is a skilled and experienced man
whose reputation
is an integral component of his job. The applicant’s evidence
that he felt humiliated by being suspended
and charged with
misconduct went unchallenged, as was the evidence that in a
relatively small province where news of this nature
would quickly
circulate, the mere fact of his being suspended and charged brought
stress, humiliation and embarrassment to him
and to members of his
family. It must necessarily be borne in mind that the award in
Tshishonga’s
case was motivated in part at least by the
fact of derisory statements by a minister of state made on national
television. However,
I must also bear in mind that that decision was
handed down some five years ago. In the present instance, the impact
and repercussions
of the respondent’s conduct extended in all
probability only to the province of the Northern Cape, but I must
necessarily
bear in mind that this is the province in which the
applicant has worked for many years, and in which he will have built
up a number
of professional relationships with senior members of
provincial government. I must also take into account that the
applicant’s
professional reputation has necessarily been
tarnished by the respondents’ conduct. While in
Tshishonga’s
case there was the added element of
statements being made on national television, I am satisfied that
having regard to the particular
facts of the present case and the
effects of inflation, an award in the same amount as that awarded by
the LAC in
Tshishonga
is just and equitable.
Costs
[44]
The court has a broad discretion in terms of s 162 of the Labour
Relations Act to make orders for costs according to the requirements
of the law and fairness. Costs are not ordinarily awarded to parties
who, as the applicant did, represent themselves. In those
instances,
the court has made orders which would have the effect of entitling a
party to recover all reasonable disbursements incurred
in relation to
the proceedings. There is no reason why the applicant should be
denied those disbursements.
Direction
[45]
Whistleblowers, when they comply with the PDA, are an integral
element of the fight against corruption to which I referred
in the
introduction to this judgment. People, like the applicant, who have
the courage to stand by their convictions and speak
out not only
entitled to protection, they ought to be commended. I gained the
sense during the course of the trial that the applicant
was a
stickler for detail, that he undertook his professional duties with
diligence and that he demanded high standards from his
staff. This is
perhaps why the respondents formed the view, as it was put to the
applicant during cross-examination, that he was
obstructive and that
his insistence on legal vetting ‘contaminated’ the bid
adjudication process. The fight against
corruption is almost entirely
dependent on individuals such as the applicant, who choose to
exercise their duties fearlessly and
independently, and have the
courage to call their employers to account when wrong-doing is
identified.
[46]
In the present instance, it would appear to me that those who are
responsible for bringing charges against the applicant are
those who
should themselves be facing charges for the failure, by awarding the
tender to Bagale Consulting for the Theekloof Pass
project, to comply
with the regulatory measures identified by the applicant. For that
reason, I intend to direct the registrar
to forward a copy of this
judgment both to the Premier of the Northern Cape Province and the
Office of the Auditor General.
For
the above reasons, I make the following order:
1.
The applicant’s suspension constitutes an occupational
detriment for the purposes of the
Protected Disclosures Act.
2.
The
disciplinary hearing convened by the respondent into charges of
misconduct against the applicant constitutes an occupational
detriment
for the purposes of the
Protected Disclosures Act
3.
The respondents are ordered immediately to uplift the applicant’s
suspension and are interdicted from conducting any disciplinary
enquiry into the charges brought against the applicant in terms of
the charge sheet served on the applicant on 26 November 2013.
4.
The respondents are ordered to pay the applicant compensation in the
sum of R 100 000.00, to be paid within 14 days of the date
of this
order.
5.
The respondents, jointly and severally, the one paying the other to
be absolved, are to pay all of the applicant’s disbursements,
including but not limited to his reasonable costs incurred in
relation to travel, accommodation, and photocopying, in respect of
the present proceedings.
6.
The Registrar is directed to forward a copy of this judgment to the
Premier of the Northern Cape Province and to the Office of
the
Auditor General.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Appearances:
For
the applicant: In person
For
the respondents: Advocate TC Tshavhungwa instructed by Mjila and
Partners, Kimberley.
[1]
At paragraphs 221 of the judgment
[2]
See the Preamble to the PDA.