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[2015] ZALCD 60
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Nxumalo v Minister of Correctional Services and Others (D1092/13) [2015] ZALCD 60; (2016) 37 ILJ 177 (LC) (30 September 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: D1092/13
DATE:
30 SEPTEMBER 2015
Reportable
In
the matter between
MFANAFUTHI
ELIJAH
NXUMALO
....................................................................................
Applicant
And
MINISTER
OF CORRECTIONAL
SERVICES
.......................................................
First
Respondent
KZN
DEPARTMENT OF CORRECTIONAL
SERVCICES
...............................
Second
Respondent
VI
MAGWA
NO
..........................................................................................................
Third
Respondent
Heard
:
19 March 2015
Delivered
:
30 September 2015
Summary:
Protected disclosure -
no
employee may be subjected to any occupation detriment by his or her
employer on account, or partly on account, of having made
a protected
disclosure - an interdict to restrain commencing or continuing with
disciplinary proceedings against the Applicant
– disclosure not
proved - rule nisi discharged.
JUDGMENT
CELE
J
Introduction
[1]
This application is brought in terms of section 158 (1) (a) (iii) of
the Labour Relations Act
[1]
to
interdict and restrain all the Respondents from subjecting the
Applicant to any disciplinary proceedings or any occupational
detriment as defined in the Protected Disclosures Act
[2]
and an interdict to restrain them from commencing or continuing with
disciplinary proceedings against the Applicant. The application
was
opposed by the Respondents. It was initially brought as an urgent
application on 17 October 2013 and was enrolled for 21 October
2013.
In Court the Respondents delivered what they called an “interim
affidavit”. An interim order was granted by consent
of the
parties in terms of which:
Ø
A procedure was put in place for the
Respondents to satisfy themselves as to the authenticity of the
transcript annexed to the founding
affidavit;
Ø
Time periods were prescribed for the filing
of further affidavits, if any;
Ø
Parties were to meet by 24 October 2013 to
listen to the original recordings on the cellular telephone of the
Applicant;
Ø
The matter set down at the General Public
Service Sectoral Bargaining Council, the GPSSBC, emanating from
this case, was to
be adjourned sine die by consent and
Ø
The Respondents undertook not to proceed
with the disciplinary enquiry set down for 22 October 2013 until the
finalization of the
application.
[2]
The set time frames notwithstanding the answering affidavit and
therefore the replying affidavit were not filed by the parties.
On 31
October 2013 the Respondents sought condonation for their failure to
file the answering affidavit, contending that the delay
was mainly
due to the delays in the process of authenticating the transcript.
According to the Applicant that process was completed
by September
2013. The opposition to this application was therefore based on the
interim affidavit and on the Applicant’s
papers.
Factual
Background
[3]
The Applicant is in the employment of the First Respondent’s
Department of Correctional Services, the Department, stationed
as a
Head at Medium B, Westville Prison, KwaZulu-Natal, where he holds the
rank of a Deputy Director. One of Westville Prison inmates
was a Mr
Russell Ngubo. He was serving sentence for a murder and other related
charges. Before being prosecuted for the criminal
charges, Mr Ngubo
was the Head of Pietermaritzburg Prison and therefore an employee of
the Department. As previous Head of a prison
he would be well known
in the Department. The Applicant believed that Mr Ngubo was involved
in the struggle against apartheid and
was imprisoned for activities
as a Popcru official and therefore that Mr Ngubo was held in high
esteem for his contribution towards
the struggle. The Applicant said
that Mr Ngubo is a friend with and has lines of communication to
people who were similarly involved
in the struggle and who are then
in positions of power in the present democratic government.
[4]
The Applicant said that as Head of Medium B Westville Prison, he came
into conflict with Mr Ngubo. He contended that Mr Ngubo
adopted an
attitude that he was in charge of Applicant’s prison and that
wardens and official there such as Applicant were
Mr Ngubo’s
subordinates. The Applicant would not tolerate that attitude and
refused to give Mr Ngubo the preferential treatment
that Mr Ngubo,
according to the Applicant, considered himself entitled to. The
Applicant said that Mr Ngubo reacted by threatening
to exert the
influence that he claimed to wield with persons in positions of power
by taunting him, saying that he would arrange
for the Applicant to be
transferred away from Durban Prison. The Applicant said that in
September 2012 Mr Ngubo told him that Applicant’s
transfer had
already been arranged and it was a question of where he would be
transferred to.
[5]
In October 2012 Senior Management of the Respondents in KwaZulu-Natal
held a meeting. The Second Respondent announced that Heads
of prisons
were to be transferred. During November 2012 the Applicant had an
encounter with Mr Ngubo in which, according to the
Applicant Mr Ngubo
was talking on a public phone in prison asking the other person on
the line why the Applicant was still at Westville
Prison. Shortly
after that encounter, the Applicant was called to a meeting with the
second respondent where he was told by the
second respondent that he
was to be transferred to Pietermaritzburg Prison.
[6]
The Applicant then said that in January 2013 he had an altercation
with Mr Ngubo at which Mr Ngubo said that he was tired of
Applicant’s
behaviour and that the Applicant was soon to be called to a meeting
by the Second Respondent. On 15 January 2013
the Applicant was called
to a meeting by the Second Respondent to discuss his transfer. Mr
David, the Area Commissioner, Durban
was also in attendance at that
meeting. He took the position that his transfer was motivated by an
illegitimate purpose as orchestrated
by a prisoner whose interests
were in conflict with the legitimate interests of the Department. He
was of the view that his employer
was about to commit an unfair
labour practice relating to a transfer, at the behest of a convicted
criminal. In order to obtain
evidence of that unlawful state of
affairs the Applicant decided to record the meeting with his
officially allocated cellular telephone.
He later handed the
recordings to a firm of attorneys he had instructed. The attorneys
arranged for a transcript of the recordings.
[7]
When the First Respondent came to know about the transcribed
recordings of the Applicant, a decision was made to charge him
with
acts of misconduct in that he was alleged to have secretly recorded,
transcribed and distributed a discussion involving the
Second
Respondent and the Acting Regional Head Corporate Services and thus:
Ø
Prejudiced the administration, discipline
or efficiency of the Department or office, or institution of the
State and
Ø
Dishonoured the confidentiality of matters,
documents and discussions implied as being confidential or secret.
[8]
The Applicant was then suspended from employment by a letter dated 8
April 2013 and the Third Respondent was appointed as the
initiator to
the disciplinary proceedings. He challenged the lawfulness of his
suspension by referring a dispute relating thereto
to the GPSSBC. He
has placed his reliance on the provisions of the PDA, with particular
reference to section 3 thereof.
[9]
In a separate court action, the Applicant initiated review
proceedings to challenge his transfer to Pietermaritzburg under Case
number D143/2013. An interim court order was granted in his favour
staying the transfer pending the outcome of the review application.
[10]
In their interim affidavit the Respondents opposed this application
basically on the following grounds, namely that:
Ø
The transcript of the Applicant has never
been authenticated. No valid authentication certificate has been
filed and the attached
certificate is not signed;
Ø
The transcriber has not deposed to an
affidavit verifying the correctness of the undated transcript. The
reading of the transcript
demonstrated clearly that the transcriber
left out conversations which were in IsiZulu;
Ø
Most of the conversation has been excised
and
Ø
The transcript does not show any alleged
criminal or irregular conduct on the part of the Second Respondent or
any of the employees
of the First Respondent.
[11]
The Applicant contended that, insofar as he distributed this
recording to his legal advisors for the purposes of obtaining
legal
advice, the recording is a “protected disclosure” as
defined in the PDA. It is Applicant’s case that the
proposed
disciplinary proceedings are illegal in that they contravene section
3 of the PDA. The Applicant sought to interdict the
disciplinary
action because he believed that the disciplinary action against him
was illegal by virtue of section 3 of the PDA.
Put differently,
section 3 confers on Applicant the right not to be subjected to an
occupational detriment if that was “on
account or, partly on
account, of his having made a protected disclosure. The Court may
intervene to stop disciplinary proceedings
where the continuation of
such proceedings contravenes an established right.
[3]
[12]
As foreshadowed in the interim affidavit the Respondents objected to
the admissibility of the recordings or transcript on the
basis that
the authenticity of the records and of the transcription had not been
established and the recordings were obtained unlawfully
during a
confidentiality that attached to the discussions between an employer
and employee grievance in the workplace, where such
discussions ought
never to be used to discredit the employer.
Evaluation
[13]
Section 3 of the PDA basically provides that no employee may be
subjected to any occupation detriment by his or her employer
on
account, or partly on account, of having made a protected disclosure.
As correctly submitted by Mr Crompton for the Applicant
the term
“disclosure” is defined in the PDA to include “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 tend to show one or
more of ...” various types of impropriety that are set out at
sub-paragraphs (a) to (g) of the definition.
It is not required that
the disclosure must, in and of itself, prove the impropriety. It is
sufficient if it “tends to show”
the impropriety.
[4]
[14]
The PDA is a four staged process entailing firstly, the analysis of
the information to determine whether there is a disclosure.
Secondly,
where there is a disclosure such has to be determined if it is
protected. Thirdly, a determination is to be made whether
the
employee was subjected to any occupational detriment. Fourthly, an
assessment of the appropriate remedy is then to be finally
made. In
terms of section 5 of the PDA a disclosure may be made to a legal
advisor, such as an attorney.
[15]
In
Communications
Workers Union v Mobile Telephone Network
(Pty)
Ltd
Court held that
[5]
:
“
However
as I have noted the protection extended to employees by the PDA is
not unconditional. The PDA sets parameters of what constitutes
a
protected disclosure as well as the manner of permissible disclosure
by workers. The definition of disclosure clearly contemplates
that it
is only the disclosure of information that either discloses or
intends to disclose forms of criminal or other misconduct
that is the
subject of protection under the PDA. Disclosure must also be made in
good faith. An employee who deliberately sets
out to embarrass or
harass an employer is not likely to satisfy the requirements of good
faith. However more extensively established
by the PDA might be in
the employment context, I do not understand what was intended to
protect what amounts to mere rumours or
conjecture.
”
[16]
Accordingly, it is only the disclosure of information that either
discloses or intends to disclose forms of criminal or other
misconduct that is the subject of protection under the PDA. Secondly,
disclosure must also be made in good faith. The applicant
bears the
onus to prove his entitlement for the protection he avers flows from
the PDA.
Authenticity
[17]
The Applicant is before Court today because he has been charged by
the First and the Second Respondents for misconduct. While
the
Respondents have not said so in so many words, it is probable that
the two charges are dependent on the transcript of the discussion
the
Applicant had with the Second Respondent and Mr David. If that is the
case, at the disciplinary hearing, it is the Respondents
who have to
prove every element of the misconduct complained of. The Respondents
have to prove that the Applicant secretly recorded,
transcribed and
distributed a discussion involving the Second Respondent and Mr David
thus prejudiced the administration, discipline
or efficiency of the
Department or office, or institution of the State and that he
dishonoured the confidentiality of matters,
documents and discussions
implied as being confidential or secret. It is the Respondents who
would have to prove the authenticity
of the transcript they will rely
on. All that the Applicant had to do in this case was to make
reference to the transcript of the
discussion as is referred by the
Respondents in the charge sheet for the hearing he seeks to
interdict.
[18]
While the Applicant is the one who filed a transcript on record, he
must be understood to have filed what he believed is the
material to
be used by the Respondents at his disciplinary hearing which the
applicant seeks to interdict and restrain from taking
effect. In my
view, the Respondents are being opportunistic in demanding the
Applicant to authenticate a transcript which the Respondents
intend
to use against the Applicant. That defence therefore stands to fail.
Unlawfulness
of transcript
[19]
South African law recognises two types of monitoring, being
participatory and non-participatory interceptions. Non-participatory
monitoring occurs when the interceptor invades or eavesdrops and/or
records a communication which he or she is not privy to, such
as
phone tapping.
[6]
In the present
matter the applicant was part of the deliberations being recorded and
it is thus a case of participatory monitoring
which was never
intended to be prohibited.
[7]
Disclosure
[20]
The Applicant contended that the transcript contained compelling
circumstantial evidence which proved that his transfer was
motivated
by illegitimate purpose and was orchestrated by a prisoner Mr Ngubo.
These submissions are not borne out by the transcript
referred to.
Even after the Applicant had introduced the discussion around Mr
Ngubo and his demands to the wardens, the Second
Respondent made it
abundantly clear that Heads of Prisons were not to succumb to the
demands of prisoners. The Second Respondent
suggested that
information on what was discussed might have leaked to Mr Ngubo. He
also referred to political pressure emanating
from well-known
prisoners in general terms but intimated that such was not to
compromise decisions of Heads of Prisons. While he
referred to
telephone calls that came from politicians, the Second Respondent
steadfastly insisted on there being no justification
to deviate from
the prison rules. He intimated that Mr Ngubo had to be transferred to
another prison due to difficulties he was
reportedly causing. Mr
Ngubo was indeed subsequently transferred by the Second Respondent to
Serfontein Prison.
[21]
There is thus no compelling circumstantial evidence which proved that
the Applicant’s transfer was motivated by illegitimate
purpose
and was orchestrated by a prisoner, Mr Ngubo. In the absence of a
disclosure of information that either discloses or intends
to
disclose forms of criminal or other misconduct that is the subject of
protection under the PDA there cannot be talk of there
being
protected disclosure. Neither can it be said that the Applicant
suffered any occupational detriment.
[22]
Accordingly, the rule nisi is discharged with no order as to costs.
Cele
J
Judge
of the Labour Court of South Africa.
APPEARANCES:
1.
For the Applicant: Mr D Crompton
Instructed
by Brett Purdon Attorneys.
2.
For the Respondents: Mr K T M Moerane
/ Ms Z Rassool
Instructed
by the State Attorney, Durban.
[1]
Act Number 66 of 1995, hereafter referred to as the Act.
[2]
Act Number 26 of 2000, hereafter referred to as the PDA.
[3]
See
Communications
Workers Union v Mobile Telephone Networks
(Pty)
Ltd (2003) 24 ILJ 1670 (LC) and
SA
Municipal Workers Union obo Matala v Mbombela Municipality
(2011)
32 ILJ 2748 (LC).
[4]
See
Radebe
and another v Premier, Free state and others
2012 (5) SA 100 (LAC).
[5]
(2003)
24 ILJ 1670 (LC) at paragraph 21.
[6]
See
Lenco
Holdings Limited & Others v Eckstein & Others
1996 (2) SA 693 (N).
[7]
[7]
See
Tap
Wine Trading CC & Another v Cape Classic Wines Western Cape CC &
Another
1999 (4) SA 194
(C).