Nortje v University of KwaZulu Natal (D858/10) [2016] ZALCD 11 (1 June 2016)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2016
>>
[2016] ZALCD 11
|

|

Nortje v University of KwaZulu Natal (D858/10) [2016] ZALCD 11 (1 June 2016)

Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
IN
DURBAN
JUDGMENT
Case
no: D858/10
In the
matter between:
PETRONELLA NORTJE
Applicant
And
UNIVERSITY OF KWAZULU NATAL
Respondent
Heard:
26,27,28,29,30 August 2013, 06 August 2014
Delivered:
1 June 2016
Summary:
(187(1)(h) – alleged automatically unfair dismissal for
protected disclosure-
JUDGEMENT
LAGRANGE,
J
Introduction
[1]
The applicant in this matter, Ms P Nortje
(‘Nortje’) who had been employed as an administrative
assistant in the Law
faculty of the respondent (‘the
University’), claims that she was dismissed on 9 October 2009
for making certain protected
disclosures and that accordingly, her
dismissal was automatically unfair by virtue of section 4(2)(a) of
the Protected Disclosures
Act 26 of 2000 (‘the PDA’) read
with section 187 (1)(h) of the Labour Relations Act, 66 of 1995 (‘the
LRA’).
Alternatively, she claims that her dismissal was
substantively and procedurally unfair. Nortje was found guilty on all
but one
of the six charges against her and was dismissed. The
disciplinary enquiry was conducted by an external chairperson. Her
appeal
also to an independent chairperson was unsuccessful. . Both
hearings in which Nortje was represented appear to have been
comprehensive
and the chairpersons of both hearings gave detailed
reasons for their findings. Prior to the commencement of her
disciplinary proceedings,
Nortje was suspended with effect from 14
August 2008.
[2]
In her statement of claim the applicant
sought reinstatement with backpay, but it was argued that the court
could also entertain
a claim for compensation in the alternative.
[3]
Apart from giving evidence herself, Nortje
called Ms L Noel (‘Noel’) who was employed as the
director of Student Academic
Administration at the time, and Dr C
Lumina, a former senior lecturer in the law faculty (‘Lumina’).
The university’s
witnesses were: Professor M Kidd, former
deputy dean in the Law faculty (‘Kidd’); Mr R
Pennyfather, former senior lecturer,
dean’s assistant and
Proctor of the University in 2008 (‘Pennyfather’); Mr M
Nene (‘Nene’), at the
time the chairperson of the Law
students Council of the University ('LSC’);  Ms Z Ngema
(‘Ngema’), another
LSC member, and the Registrar at the
time, Ms J Meyerowitz.
[4]
In passing it should be mentioned that the
pre-trial minute was a perfunctory document. An example of the poor
preparation reflected
in the document is a statement such as the
following: “The parties are
ad
idem
that the issues in the labour
court proceedings are as follows: the factual issues, as defined in
the pleadings as to what allegations/disclosures
made by the
applicant and to whom”. Such a statement adds nothing to the
pleadings and requires the court to make up its
own mind what the
points of consensus are and entails unnecessary work on the part of
the court. The parties did not even bother
to set out facts in
dispute and facts that were common cause. Such a pre-trial minute is
of no help whatsoever to a judge and defeats
the object of preparing
such a document. Further, neither party made any effort in the heads
of argument to refer to the transcript
of the record despite it being
available.
[5]
After argument was heard, there was a
suggestion apparently made to the registrar of the Court in Durban by
the applicant that the
transcript which had been filed was incomplete
in one or other respect and it was left to the parties to see if
there was any agreement
about a missing portion of the transcript. A
transcript up to and including the evidence of Nene had been provided
to the court
by the time argument was heard and only the evidence of
Ngema and Meyerowitz had not been transcribed by that stage. Despite
a
long elapse of time, this query was not pursued and the matter was
never formally raised with the court, nor was any reconstructed

version of the supposed missing evidence filed. It is also the case
that no transcript of Ngema and Meyerowitz’s evidence
was
provided. However, in respect of the testimony of the last-mentioned
witnesses, the absence of a verbatim transcript of their
evidence did
not present any difficulties in evaluating their evidence.
The
relevant facts
[6]
I do not intend to canvass the evidence in
detail but only to deal with parts of it which are pertinent to
determining the matter.
The
charges for which the applicant was dismissed
[7]
The charges Nortje was found guilty of read
as follows:
“
1.
In or about April or May 2007, you handed to the registrar, Dr Edith
Mneney, a document
also by himself in which you made the following
unsubstantiated allegations including:
1.1
that there were problems in the faculty of Law’s aegrotat
system for tests and assignments,
including that "system has
proved to be unfair" and that decisions are based on
favouritism.
1.2
that the assignment/tutorial system in the faculty is “unacceptable"
1.3
that Mrs Juanita Anthony has committed acts of “blatant
cheating" during the
course of her LLB studies; and
1.4
that Mrs Razia Amod, in Howard College, "has access to
examination processes and is
studying for her LLB in this faculty".
2.
On or about 22 February 2008, you made the following unsubstantiated
allegations to Ms. Zoliswa Ngema , a member of the Law Students’

Council, including that:
2.1
students were unhappy with the appointment of Ms Juanita Easthorpe as
a lecturer for the part-time International Law module;
2.2
Ms Easthorpe had not yet obtained her LLB degree;
2.3
The Dean (Professor Michael Cowling) and Deputy-Dean (Prof Michael
Kidd) were implicated
in misconduct relating to the appointment of Ms
Easthorpe; and
2.4
The appointment of Ms Easthorpe was "corrupt".
3.
On or about 29 February 2008, you made the following unsubstantiated
allegations to Mxolisi Nene (the President of the Law Students’

Council) including that:
3.1
the appointment of Ms Easthorpe to the position of lecturer for the
part-time international
Law module was irregular;
3.2
the international law part-time students were unhappy with this
appointment; and
3.3
the Deputy-Dean, Prof Kidd, was “implicated in irregular
conduct relating to this
appointment.
…
5.
On or about 27 February 2008, you made unsubstantiated allegations by
email to Mr Themba Emmanuel Mbongwe, the Faculty Manager
of the
Faculty of Law, including that “recent academic appointments”
in the Faculty were irregular”.
6.
You communicated concerns that you had regarding Faculty matters, as
set out in charges
1-5 above, without raising the issues in
accordance with the proper reporting structures, which had the effect
of undermining the
management of the faculty of law and tarnishing
the reputation of professors Cowling and Kidd, the Dean &
Deputy-Dean of the
Faculty."
[1]
The applicant had been warned prior to her
transfer to the Law Department in 2001 for making unfounded
allegations and/or statements
prejudicial to or undermining the
University having the potential to do so. When questioned about this,
the applicant claimed that
the allegations had been made by the union
and not herself, but could not dispute that the warning had been
issued to her and had
not been successfully challenged. The warning
expressly stated that if she engaged in the same or similar conduct
in the future,
she might be dismissed from the University. It was the
events which culminated in this warning which led to her transfer to
the
law department. It was apparent that one of the concerns raised
at that juncture was the time spent on non-work activities by Nortje

during working hours. The applicant was employed by the University in
1990 in the Department of Botany. She then moved to the Department
of
Microbiology and Plant Pathology (‘Microbiology’) in 1993
until she was “redeployed” to the Law Faculty
in 2001.
During her time at microbiology she claims that whilst serving on the
University’s employment equity committee she
blew the whistle
on appointments in the Department and a process was initiated against
her resulting in her moving to the Law Faculty.
She claimed that at
the time she was transferred to the law faculty she had been asked by
defendant to sign a document agreeing
that she would no longer
participate in union work and would no longer serve on university
committees. After a meeting between
her union at the time (‘NEHWAWU’)
and the Vice Chancellor Prof Makgoba, she was allowed to continue
with her other
activities.
[2]
When she worked in the Law Faculty at the
Pietermaritzburg campus as one of three assistant administration
officers, Nortje was
also Vice President of the Combined Staff
Association (‘COMSA’) a trade union. At the same time she
was a member of
the Senate, a member of the Law Faculty’s
Employment Equity Subcommittee and a member of the Faculty Board by
virtue of her
trade union office. Nortje was elected by the
administrative staff in the Faculty of Law and Management Studies to
sit on the Senate
and the Faculty Board. As a member of the Senate,
she had an opportunity to make an input into the whistleblowing
policy, which
the Senate approved. There was also a law student’s
council (‘LSC’) which sent representatives to the Faculty

Board.
The
main contentions of the parties
[3]
Nortje claimed that the dismissal was
automatically unfair because the university used her disclosures to
institute a disciplinary
enquiry, which is precisely the kind of
retaliatory action the PDA is designed to prevent. Moreover, if only
one of the disclosures
she made constituted a protected one in terms
of the PDA, then her dismissal was still automatically unfair because
section 3 of
the PDA protects an employee against dismissal even if
the dismissal was only ‘partly on account, of having made a
protected
disclosure’. In particular, Nortje contends that two
of the disclosures she made were protected because in one instance
she
was acting in a representative capacity for a union and in the
other she made the disclosure to someone she reasonably believed
was
her line manager, namely Mr E Mbongwe.
[4]
In her testimony, Nortje maintained that
she had always acted in the best interests of the university as an
employee in accordance
with its policies and procedures and out of a
‘heartfelt concern’ and passion for her work.
[5] In
relation to the second and third charges, Nortje concedes that if
these statements were made to the two student representatives,
they
would not constitute protected disclosures but she disputes the
factual allegations on which those charges were based.
[6]
She
further argues that university failed to discharge the onus, which
she claims it bore, of proving that she did not have reason
to
believe that the information she disclosed showed or tended to show
impropriety and that she did not make the disclosures in
good faith.
Lastly, Nortje claimed that she had been dismissed by the law faculty
and not the University, but Professor Kidd was
adamant that it was
the human resources and legal services of the University which had
initiated and conducted the disciplinary
process which led to her
dismissal.
[7]
Lastly, Nortje submitted that the university had
acted in breach of clause 6 of its PDA policy by investigating her
actions instead
of investigating the impropriety she believed the
disclosure revealed and that the Registrar should not have passed on
the documents
given to her in confidence to Professor Cowley, but
should have referred the matter to the Senate, the Deputy Vice
Chancellor and
Council.
[8]
The University argues that even if the
allegations were supposedly made in terms of the PDA, it was entitled
to investigate them
and if the allegations turned out to have been
made in bad faith it was entitled to take steps against Nortje.
Secondly, it contends
that the purported disclosures made by Nortje
were malicious and intended to harm the reputation of certain staff
members. It also
argues that there was no reasonable basis for Nortje
making the statements she did and she was reckless in making them
without
inquiring if there was a basis for her suspicions. Further,
she failed to follow the University procedure for whistle blowing
and,
in any event, could not rely on the provisions of section 9 of
the PDA, which set out circumstances in which a disclosure will still

be protected.
The
existence of a procedure for making a protected disclosure
[9]
Section 6 of the PDA provides that:
“
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.”
[10]
At the time of the events relating to first
charge about what she conveyed to the Registrar in 2007, there was no
University procedure
for whistle blowing claims, but there was an
anonymous fraud line service for reporting irregularities or criminal
conduct. However
it was common cause that by 15 February 2008 the
University had a whistleblowing policy which provided a procedure for
employees
and students to raise concerns. Nortje was familiar with it
as she had been a party to discussions in the senate which adopted
it.
[11]
In terms of paragraph 5.2 of that policy an
employee or student was required to approach their immediate
supervisor or faculty management
unless that person was the subject
of the complaint in which case they ought to approach the Vice
Chancellor or chairperson of
the Audit and Risk Committee. If the
complaint was found to be substantiated by the person it was referred
to, that person would
consult with the relevant senior managers on
whether the matter should be investigated internally or by external
forensic investigators
or referred to the appropriate external body
such as the SAPS.
[12]
Clause 4.1 of the policy read:
“
Harassment
or Victimisation
4.1
UKZN acknowledges the fact that the decision to report a concern can
be a difficult one
to make, not least because of the fear of reprisal
from those responsible for the irregularity. UK said will not
tolerate harassment
or victimisation arising from the making of a
report and will take action to protect employees when they raise a
concern in good
faith. Any act of harassment or victimisation should
be reported to the Vice Chancellor. This does not mean that if an
employee
is already the subject of disciplinary or other action, that
action will be halted as a result of their whistleblowing.”
[13]
Clause 4.4 of the policy also cautioned
that:
“
Allegations,
which are false and made with malicious intent are discouraged. Where
such malicious, vexatious, or false allegations
are discovered, the
person who made the allegations will be subject to firm disciplinary
action, or other appropriate action in
the case of external parties.”
Nortje
agreed that it meant that if disclosures she made were false the
University would be entitled to take disciplinary action
against her.
Synopsis
of material evidence
Some
background events
[14]
The applicant’s first witness was Dr
C Lumina (‘Lumina’), who was an HR consultant to the
Human Rights Council
of the United Nations since his appointment in
March 2008. He resigned from the University in 2009.
[15]
He had been a senior lecturer at the
University between 2003 and the end of June 2009 when he resigned. In
2004 he was nominated
to serve on the school of law Howard College
executive committee. He met the applicant sometime in 2005 or 2006
because at that
time she was serving on the faculty board. In 2004 he
applied for two positions. One was as an assistant professor as part
of an
annual process during which all academics can apply for
consideration for a higher position subject to meeting certain
thresholds
and being endorsed by the relevant line management.
Secondly, he applied for an advertised post for the same position.
[16]
Lumina claimed that he had been unfairly
denied promotion in 2004, when a senior lecturer, who did not have a
Ph.D., was appointed
despite Lumina and another candidate being
better qualified. Lumina and the other unsuccessful candidate both
challenged their
non-appointment. He was informed by Professor
Cowling, the dean of the Law faculty, that he had been unsuccessful
because the other
candidate was South African, whereas he was not. In
this regard, it should be mentioned Lumina was a Zambian national
residing
in the country on a work permit.
[17]
In the course of subsequent litigation
initiated by Lumina, the authenticity of his qualifications were
challenged by the University.
This prompted him to investigate the
qualifications of Professor Cowling and he unearthed evidence that
the latter did not have
an LLM or D.Phil degree from Cambridge,
contrary to what appeared in the faculty handbook and on the
university’s website.
Eventually the truth came out and
Professor Cowling took early retirement.
[18]
Lumina pressed for charges to be laid
against Cowling in terms of section 66 of the Higher Education Act,
107 of 1997 (‘the
HEA’), for allegedly misrepresenting
his qualifications. Lumina was advised in November 2008 by the
Director of Employee
Relations, Mr P Finden (‘Finden’),
that Finden had been instructed to initiate such charges. However, by
the time Lumina
resigned in June 2009 it appeared that nothing had
been done and he believed that this was because Finden and Cowling
were friends.
Lumina said he left because he could no longer work in
an oppressive environment where he was subject to intimidation such
as being
denied benefits by Professor Cowling. Later in the
proceedings it was correctly conceded by the applicant that there was
evidence
that the University had in fact referred the matter to the
police and a docket had been opened but appeared to have been
archived.
[19]
For the purpose of demonstrating what he
perceived to be the oppressive environment which existed while
Cowling was the dean, he
also testified in general terms about a
complaint by two black students about being unfairly excluded from a
moot contest. According
to him they were threatened with disciplinary
action if they did not withdraw the case but when a group of white
students had complained
about him anonymously no steps were taken
against them. He interpreted the failure of two members of the
promotion committee that
had considered his application to testify in
his CCMA proceedings concerning his alleged unfair treatment as
indicative of the
fact that they were terrified of being victimised
if they testified on his behalf.
[20]
What is relevant to this matter is that
Lumina claimed that he got the information about Cowling’s
qualifications from Nortje
and that this fact was known and he
believed this was the reason why she was ‘victimised’. He
conceded though that
the information about the qualifications was
only received from Cambridge some weeks
after
Nortje had already been suspended.
[21]
Nortje testified that in 2004 she had
assisted Cowling to prepare his CV for an application for appointment
as a senior dean. During
the course of this preparation she had
advised him of the need to provide a certified copies of his
qualifications. He had claimed
that they had been lost during a move.
Initially, Nortje had been nominated to serve on the dean and deputy
dean’s selection
process, but had been replaced by the person
who nominated her allegedly on the instructions of Cowling and a
Professor Grant.
She claimed that after the selection process her
life at the faculty became very difficult. Under cross-examination
she explained
that she was referring to close monitoring of her work
by the dean and complaints that she was spending too much time on the
phone
on personal matters or non-work related issues.
[22]
During 2005, Nortje went through a very
difficult time owing to the loss of a son. She testified that she got
no support from the
faculty and that Cowling and Kidd were extremely
nasty to her. At some stage Cowling shouted at her for her work
relating to running
lecture course evaluations and she broke down
emotionally and was booked off ill. Subsequent to that she was
threatened by Finden
during a counselling process in 2006 about her
absenteeism that she had better ‘toe the line’ and that
unlike what
happened in Microbiology, they would get rid of her. She
lodged a grievance about this treatment but it went nowhere.
[23]
Later, under re-examination, the applicant
said that her relationship with Cowling and Kidd had been a good one
until 2004. After
that, although she did not really have a problem
with Cowling, her relationship with Kidd changed for the worse.
[24]
Kidd testified that he only was appointed a
deputy dean in 2005 but it was around 2004 that problems with the
applicant’s
work developed. In particular, she began to feel
that certain tasks were beneath her and that she should be given more
responsible
administrative work. He said that her work performance
was inconsistent and sometimes she would not do things because of
other
responsibilities she had which she felt were more important.
When she returned to work after the death of her son she and Prof
Cowling had an altercation as a result of which she was booked off
ill for some time. Because her absence and selective approach
to her
responsibilities was creating a problem for the Law school, Kidd
complained to the Human Resources section and on her return
she was
counselled and advised that she had to follow lawful instructions
issued by himself and Prof Cowling. He denied being ill
disposed
towards her on the basis of the circumstances under which she came to
be transferred to the law faculty, but conceded
that when problems
started to emerge there was a concern that she might be repeating the
kind of conduct which had led to her transfer.
He also maintained
that his complaints had been independently motivated by himself and
had nothing to do with the fact that the
applicant had been
instrumental in exposing Cowling’s academic credentials.
Nortje’s
line manager
[25]
Nortje claimed that her immediate line
manager was Mr E Mbongwe, the faculty manager, though she also said
that she reported to
Cowling and subsequent to the merger of the
universities, she reported to Kidd, the deputy dean. Noel described
Mbongwe as the
person who took care of HR issues within the Law
School. Kidd testified that Mbongwe was appointed in 2007 to handle
certain HR
issues in the faculty, but he had always been Norjte’s
line manager and she understood that as evidenced by the fact that

she would engage with him about issues such as her absence from the
office and the like. An extract from the Ijumba report dealing
with
how the allegations considered by Prof Ijumba would be addressed
read:
“
Others
[allegations] can be dealt with administratively, for example, the
issue of communication seems to have been addressed by
the
appointment of a faculty manager who has direct reporting
responsibility for the academic support staff.”
Kidd was
adamant that even though Mbongwe had certain responsibilities in
terms of managing human resources in the faculty and certain
issues
relating to support staff, there was never any indication that the
line management functions had changed after his appointment.
To the
extent that the Ijumba report found otherwise that was simply
incorrect. For example, Kidd was still the person who approved

Nortje’s leave applications or who granted permission for her
to attend union meetings`. He did not know what was intended
by the
phrase ‘direct reporting responsibility’ in the above
extract from the report, but rejected the suggestion that
his
responsibility in relation to Nortje ended with day to day issues but
that did not make him her line manager.
[26]
In any event, Kidd pointed out that the
Ijumba report was only issued after the events relating to the
contentious emails and could
not have been the basis for Nortje
believing that Mbongwe was her line manager. He was also referred to
an extract from the transcript
of Nortje’s disciplinary
proceedings in which another staff member, Ms Govender, testified
that if Mbongwe was Nortje’s
line manager then she would have
been correct to raise a grievance with him. Govender then stated that
Mbongwe was the line manager
and that  “… if we
have a gripe we would report the matter to him if it is an admin
matter.” Kidd’s
response to this was that Govender was
part of the faculty office staff rather than Law school staff as
Nortje was. There were
differences in the way the two sections were
managed.
[27]
On the evidence, it seems more probable
given Kidd’s approval of Nortje’s leave applications and
requesting counselling
for her that he was her line manager and that
she should have at least raised her concerns with him, before
proceeding to the faculty
level. If she viewed him as the subject of
the complaint then the matter ought to have been referred to the
Vice-Chancellor’s
office or the risk and audit committee,
though Nortje never advanced this defence for not referring the issue
to him rather than
Mabongwe.
The
issue of part-time lecturers’ qualifications
[28]
On the matter of Easthorpe’s
appointment, Lumina claimed that there were at least two other
contract lecturers who could have
been appointed to the position she
was appointed to, who were both better qualified. He also contended
that until Easthorpe had
her LLB degree formally conferred on her she
did not actually have the qualification, which meant that she did not
have a law degree
at the time she was appointed to lecture. Nortje
also shared the same understanding as to when a student acquired a
degree. She
referred to paragraph 67 of the University statute, which
stated:
“
67.
Award of qualifications
(1)
Degrees conferred and diplomas and
certificates are awarded at a congregation which shall be held at
least once a year on a date
to be announced at the beginning of every
academic year.
(2)
The chancellor, or in his or her absence,
the vice chancellor or a deputy vice chancellor, shall preside at a
congregation.
(3)
A person is not entitled to any privilege
conferred by any degree before he or she has been admitted to such a
degree, or to any
privilege conferred by any diploma or certificate
before he or she has been awarded such a diploma or certificate at a
congregation.”
[29]
Nortje also referred to an advertisement
for lecturers’ posts which stipulated that candidates had to
have a Master’s
degree in law as a minimum requirement. Noel
also claimed this was a requirement. The University produced a list
of 13 contract
lecturers who had been appointed in the law faculty
from 2001 to 2007, none of whom had LLM degrees. Nortje did not
dispute the
veracity of this claim, but insisted that Easthorpe’s
case was distinguishable from those on the list because unlike them

she did not even have an LLB degree.
[30]
In his evidence, Kidd disputed that being
‘entitled to any privilege conferred by any degree’,
referred to eligibility
for further studies or employment: if that
were the case, then students could not be registered for Masters
degrees until their
LLB degrees had been conferred, which would be
absurd. Moreover to the extent that any privileges depended on
attainment of the
degree qualification a student was eligible for
those on admission to the degree in terms of s67(3) of the University
statute and
not when the degree was conferred. Meyerowitz confirmed
that the conferral of a degree did not delay persons with
professional
degrees from pursuing their professions. Degree
completion certificates were issued without having to wait for
graduation. In her
understanding the only privilege conferred in the
graduation ceremony was the right to use a title such as ‘Doctor’.

For university purposes it was sufficient if a graduate had a letter
saying that they had completed a Master’s degree in
the case of
permanent posts.
[31]
Evidence was also given by Noel to the
effect that Easthorpe had been treated more favourably than other
students by being given
an opportunity to submit assignments to a
lecturer for an overview so she could correct them before submitting
them. However, it
must be mentioned that she agreed that her
involvement with other departments such as the law faculty arose only
when a student
was being disciplined or there was a disciplinary
related issue or one involving student academic records. Such
knowledge that
she had of the issues raised by Nortje in the Law
faculty came to her attention in her union capacity. Noel also
conceded that
apart from an unidentified sources within her union
Nortje was the main source of information and she had no direct
knowledge of
the alleged favourable treatment of Easthorpe.
The
appointment of temporary staff using ‘blue form’
procedure
[32]
Temporary staff at the University were
employed using a separate procedure from permanent appointments,
known as blue form appointments
because the administrative form used
for such appointments was blue in colour. There was no formal policy
governing blue form appointments
though there were guidelines. Noel
conceded that circumstances might affect the considerations governing
a particular temporary
appointment.
[33]
In responding to Norjte’s request to
have the use of blue form appointments for academic staff discussed
at the Senate, Meyerowitz
suggested that if the concern was a general
one, it should be discussed by the Teaching and Learning Committee
which was considering
rates of pay for academic contract staff at the
time and which might have wanted to also consider guidelines for such
appointments.
In her email of 10 March 2008  Meyerowitz also
wrote:
“
Blue
form appointments made at the discretion of the manager who signs to
confirm that the Recruitment and Selection and Equity
policies have
been complied with. If you have knowledge of specific instances where
procedures have been flouted I urge you to
forward the details to Ms
Budree so that she can act on it. “
[34]
Nortje strongly disputed the suggestion
that the blue form appointment issue she had referred to Meyerowitz
on 6 March 2008 had
anything to do with the complaint raised with
Mbongwe two days earlier concerning Easthorpe’s appointment in
the law faculty.
However, she did concede that there was no specific
policy governing blue form appointments. The specifics of Easthorpe’s

appointment are discussed in more detail below.
Earlier
investigations by the University
[35]
In 2005 a meeting had been called of
administrative staff in the faculty by the acting Deputy Vice
Chancellors Professors Ntuli
and Stanisland at which certain alleged
irregularities in the Law faculty were reported to them under
protection of being protected
disclosures. Nortje claimed that
nothing came of this because Cowling was resistant to Stanisland
handling the process. Kidd testified
that the issues raised all
concerned support staff and at the time faculty management was
advised not to deal with anything other
than day-to-day management of
the support staff while the issues were under investigation.
Professors Stanisland was Prof Cowley's
line manager and a member of
the University executive. This process was irksome to faculty
management because it limited their
ability to manage support staff
while it was under way.
[36]
Following a strike in 2006, a board of
enquiry under Advocate Gautschi was convened (‘the Gautschi
enquiry’). Again,
the unions made confidential representations
to that body after consulting with faculty staff. Both unions made
broad confidential
submissions to the Gautschi enquiry about issues
they were not happy with in the Faculty of Law and which they felt
were damaging
the reputation of the University. Nortje felt that they
were obliged to report these things. She also felt that in the
various
capacities she held it was her duty to do so. In particular,
as a senator she felt she had an obligation to raise matters
affecting
the academic reputation of the degree. Noel, who was the
chairperson of NEHAWU at the time, confirmed that the unions had made
the submissions on issues they were aggrieved about. The
representations included issues that had been raised previously with
professors
Ntuli and Stanisland. Once again, nothing came out of that
process according to Nortje.
Events
in February and March leading to the applicant’s dismissal
[37]
Nortje said that when she blew the whistle
on temporary appointments in the faculty, Prof Kidd sent her a very
threatening email
saying he was going to take the matter up with the
Employer Relations officer because her line manager had sent the
communication
to Prof Kidd instead of the appropriate people.
Nortje’s email of 4 March 2008 to the faculty manager Mbongwe
headed ‘Fwd:
APPOINTMENT OF PART-TIME LECTURERS: FACULTY OF LAW
‘, which triggered the events leading to her dismissal, read:
“
Dear
Emanuel
As
the administrative staff representative on the Faculty of Law Board,
the Faculty of Law Equity Committee and as a member of Senate,
I
hereby wish to convey my deep concern with regard to the recent
academic appointments in the Faculty of Law in Pietermaritzburg.
I am
hereby requesting that you take these matters forward to the Human
Resources Division as I am afraid that it is my opinion
that they are
irregular in terms of fairness and compliance with the University
Policy on academic appointments. My other fear,
as a Senator is that
these appointments may impact on the integrity of the LLB degree and
ultimately on the reputation of the University.
My fear is a member
of the equity committee is that they may also impact on the equity
goals of the faculty of law in Pietermaritzburg.
Currently we do not
have any black “African) mail academic staff and this is
problematic.
If
there are academic vacancies in the faculty of Law on the
Pietermaritzburg then it is my opinion that in fairness to the
University
and its procedures, the positions should have been
advertised.
I
am copying this email to other relevant senior officials who need to
be aware of this matter.
Kind
regards
Petro”.
[38]
Nortje had very definite views on
alternative candidates for this appointment. One of whom was an
existing lecturer Mr L Lotz and
the other was Mr J Kanamaguri who had
two Masters Degrees one of which he had obtained
cum
laude
and he had extensive tutoring
experience. Appointing either of them as the only black male lecturer
in the faculty would have been
a big improvement from an equity
perspective. She also mentioned two other staff members who could
have done the job.
[39]
Shortly after Nortje sent her email to
Mbongwe, Prof Kidd wrote an email to Finden, having received a copy
of Nortje’s email
via Prof Reddi, who in turn had received it
from Mbongwe:
“
Dear
Paul
Attached
please find a letter from Petro Nortje that was sent to Emanuel
Mbongwe, the Faculty Manager, and copied to certain other
university
staff. Prof Cowling has also shown me a letter, either identical or
very similar in subject matter that sent by Mrs
Nortje to Mr
Sylvester Siboto, the Assistant registrar.
The
substantial allegations in the letter are completely unfounded, as
the writer would have ascertained had she raised the matter
with me
(or Mike Cowling) as she ought to have done. The only reason I have
found out about this, is that I have been handed a
copy of the email
by Prof Managay Reddi, who was given it by Emanuel. As you can see
from the letter, her concerns are dressed
up in factors relating to
academic integrity and employment equity, but as far as I am
concerned, if these were her worries she
ought to have raised them
with me so that I could assuage her fears. Instead, the past she has
chosen makes it clear to me that
her objective in this exercise is to
be disruptive and to undermine both me, as her line manager and the
person responsible for
the appointment that she is impugning, and the
person who has been appointed.
The
facts of the matter are as follows. In late January/early February, I
had arranged almost all of the teaching allocations for
2008 when one
of my colleagues told me that she had just been diagnosed with breast
cancer and was likely to be having treatment
for the whole of the
first semester. This necessitated reshuffling the lecturing
arrangements at a very late stage. Most colleagues
were extremely
accommodating in order to address the situation in which we found
ourselves, but I felt it was necessary to fill
in one or two gaps
temporary appointments in order to avoid overloading existing staff.
Given that it was extremely late in the
day, we had a solution on our
doorstep in Mrs Juanita Anthony, who graduated with an LLB the end of
last year and who did well
in the module International Law, which the
Dean and I decided together that it would be appropriate for her to
teach. She is teaching
only some of the lectures and the module is
being coordinated by the Dean, so she is by no means being thrown in
the deep end.
Her appointment, as a temporary part-time lecturer, has
been done according to correct procedures (blue-form appointment on
the
basis of my and the Dean’s signatures). The appointment of
Juanita, it seems to me, is the reason why Mrs Nortje has taken
this
matter up, as they are colleagues in the support staff.
This
is not the first time that Mrs Nortje has been involved in disruptive
behaviour in the faculty (or, for that matter, in the
University). I
have, quite frankly, had enough. What makes this particular matter
worse, though, is that it is undermining of her
colleague, Mrs
Anthony, who has to work hand-in-hand with Mrs Nortje in order to
ensure the smooth running of the Law Faculty.
Please
advise as to possible options for disciplinary action. I would
appreciate your feedback as soon as possible as the current

atmosphere is not conducive to the faculty’s been able to
fulfil its responsibilities.
Thank
you
Best
wishes
Michael”
[40]
Prof Kidd followed this up very shortly
afterwards with a letter to Nortje,  again under the same
heading:
“
Dear
Petro
Attached
please find a letter that you sent to Emanuel Mbongwe and, according
to you, ‘other relevant senior officials’.
The first time
I heard anything about this is when Managay Reddi gave me a copy of
the email that was given to her by Emanuel.
I am greatly displeased
about this.
The
appropriate course of action for you would have been to raise the
matter with me and I could have assured you that all procedures
were
correctly followed and there was nothing wrong with the process. Your
email fails to mention that the appointment that you
are complaining
about was made as a result of an emergency situation occasioned by
the absence of a member of staff for a semester
on medical grounds.
Even if it were not an emergency situation, however, the correct
procedures were followed. Should you require
an explanation of the
procedure that is required in the case of the appointment of
temporary part-time lectures, and an explanation
of how the law
faculty has complied with those procedures, please would you contact
Prof John Mubangizi. He has instructed me to
refer any queries in
regard to this matter to him.
Instead
of raising your concerns with me (in my capacity as your line manager
and the person responsible for the conduct you are
complaining
about), you have sent this email to other university officials,
making allegations about me (that I have acted unfairly
and not
followed correct university procedures) that was served to tarnish my
reputation in the university community. This you
have done without
mentioning your concerns to me at all and allowing me an opportunity
to respond.
I
regard your email is undermining of the faculty management (the Dean
and me) and of the person who has been appointed (Juanita
Anthony).
It is disruptive and, it appears to me, your motives in this are
entirely malicious. I approached employee relations
for their advice
as to how to take this matter further.
Yours
faithfully
Michael
Kidd”
[41]
Kidd explained that it had been necessary
to ask some of the full-time members of the faculty to take over some
of the staff responsibilities
of the member who had fallen ill on top
of their existing duties, but there were still gaps remaining. One of
those gaps was teaching
the part-time International Law students and
it was felt it would best be met by appointing Easthorpe who would be
supervised by
Prof Cowling. The overriding consideration was to
appoint someone who was qualified to do the job and at that stage an
LLB degree
was sufficient for a contract position. At the time they
only had a matter of weeks to sort the appointment out and they did
not
consider appointing persons who were already lecturing, such as
one of the potential candidates mentioned by Nortje, as they would

already have a full teaching load. As to a foreign PhD student who
had been suggested by Nortje, he said that there were certain

difficulties involved in appointing existing students to teaching
positions, quite apart from work permit issues that might arise
in
that case. He also pointed out that any graduate who was employed by
the University the following year usually starts in January
before
the graduation ceremony. This was equally true of graduates who began
work as candidate attorneys.
[42]
Professor Kidd testified that blue form
appointments could not be for longer than one year and were not
subject to the equity targets
of the University which only applied to
permanent posts. In the case of Easthorpe, she was appointed for five
months and incidentally,
as a coloured person, was a designated
person in any event. Although Nortje did not testify in detail about
her interpretation
of the University’s employment equity policy
which had been adopted in May 2007, it was clear that she believed it
applied
to a short-term appointment of a lecturer. Kidd testified
that the appointment protocol attached as Appendix 1 to the equity
policy
only applied to fixed term contracts longer than a certain
duration and to permanent appointments even though the document
itself
makes no distinction between permanent and contract post
appointments. During his time as deputy dean he said he made
approximately
20 part-time appointments each semester on a short-term
basis where the period of appointment was below the threshold that
required
advertising and interviews. The current threshold was
appointments off two or more years, but he could not recall what the
cut-off
was at the time Easthorpe was appointed except that her four
months appointment definitely fell below the applicable threshold at

the time. Accordingly, all the requirements relating to advertising,
selection committees and appointment criteria set out in Appendix
1
were not applicable in Easthorpe’s case. Thus, in signing off
the blue form to the effect that the employment equity policy
had
been satisfied, in a sense that was neither here nor there because
the policy did not apply to those appointments. It was the

applicant’s contention that her perception was that the
appointments policy had not been complied with based on her
understanding
that all appointments had to comply with the protocol.
[43]
Kidd did concede that in making blue form
appointments subjective factors could play a part. Thus the vast
majority of persons appointed
on this basis would be people that he
would have known. For example, if a professor wanted to appoint a
Master’s student
as a research assistant there would already be
an existing relationship between them and the selection process would
not be a competitive
one. However, the competitive disadvantage would
only be a short-term one.
[44]
It was put to him that it was not
unreasonable of Nortje to have perceived that there was something
irregular about the appointments
of Easthorpe, and two other persons
L van Rensburg and S Ali as part-time lecturers, when none of them
had LLM degrees but only
LLB degrees, which had not been conferred on
them, and all were personally known to the managers appointing them.
Kidd’s
response was that if that was indeed a genuine concern
it was inexplicable why Nortje had never raised those issues in
relation
to a number of other appointments prior to that which were
indistinguishable on the criteria mentioned.
[45]
Nortje claimed that she was shocked and
scared when she received Kidd’s email and his mention of
referring it to Employee
Relations. As far as she was concerned, she
had referred the matter to the correct person. She also denied that
there was any emergency
in the Department. In her view, an emergency
situation would be one of the short duration not for a whole
semester. She also had
never mentioned Kidd, Cowling or Anthony by
name in her email and she merely intended to raise her concerns. Her
only response
to this email, under the same heading was the
following:
“
Dear
Mike
I
really thought that Emanuel was the appropriate person to report this
matter to.
Regards
Petro"
However,
Nortje conceded under cross examination that the persons who would be
identified as responsible for the irregularities
mentioned in her
letter would be Cowing and Kidd. She said that she had sent it to
“senior officials at the University”
and to the equity
manager and HR director, and agreed that it was not described as a
protected disclosure. She could not explain
why Mbongwe would have
passed the email on if he had agreed with her before she sent it to
him that it would be kept confidential.
Noel also
perceived Nortje’s actions in sending the email to merely be
clarification of the appointment procedure because
some students had
expressed unhappiness about more qualified persons not being
appointed.
[46]
Professor Kidd testified that even though
names were not mentioned it was clear given the timing that Easthorpe
was the person being
referred to and that he and Prof Cowling were
responsible for the appointment. In addition shortly before the email
some students
had approached him to say that they had been advised
that there were certain irregularities relating to law school
appointments.
Although they were reluctant to divulge the source of
their information and he had not yet received the forwarded email he
had
heard about it and surmised that Nortje was responsible because
he knew that she had an issue with Easthorpe on account of Easthorpe

been appointed to a position of greater responsibility than Nortje.
In his view, it was significant that prior to Easthorpe’s

appointment there had been numerous blue form appointments in the
years leading up to her appointment of people with similar
qualifications
but it was only when Easthorpe was appointed that an
issue was raised about these type of appointments.
[47]
In his view, it was also quite improper for
these matters to be raised with the LSC whose function was to hear
concerns and grievances
of students not of staff members. If Nortje
had a problem with staff appointments she ought to have raised it
with him as her line
manager and he could have explained it to her
that it was above board. In his view in the absence of any basis for
Nortje to reasonably
believe that the complaints were true, he could
only believe they were motivated by malice. Had Nortje wished to
verify if the
appointment was irregular she could have asked him or
approached someone in Human Resources. Similarly, if she had any
concerns
about allegations of cheating those could be raised with the
management of the faculty.
The
Ijumba and McCracken reports
[48]
A preliminary report on problems in the
faculty of Law at the Pietermaritzburg campus was issued on 22 April
2008 by Prof N Ijumba,
the Dean of the Faculty of Engineering (‘the
Ijumba report’). The report had been requested by Employee
Relations,
and essentially deals with her complaints about the
faculty and vice versa. It was prompted by the chain of events set
off by her
communication to Mbongwe in February.
[49]
The Ijumba report recommended yet a further
investigation which was chaired by Prof D McCracken of the Faculty of
Humanities, Development
and Social Studies, the result of which
became known as the McCracken report. The principal issues canvassed
in that report with
those on which no conclusion had been reached by
Prof Ijumba namely, the handling of examinations, favouritism of
students by some
lecturers, and irregular appointment of staff for
the part-time LLB program. In summary, the committee concluded that
the allegations
of impropriety relating to those issues were false.
More specifically, the report found amongst other things that there
was no
evidence that: examination papers had been handled in an
irregular fashion; that there was no favouritism at work in the
awarding
of degrees or appointment of staff and, in particular, that
there was anything untoward in the appointment of Ms Easthorpe. The

report stated:
“
(T)he
committee has established that at the time of her employment Ms
Anthony had completed all the requirements for LLB. The committee

noted the excellent academic record of Ms Anthony. Mr Anthony had not
yet graduated but had fulfilled all the requirements of the

qualification, the graduation, being a symbolic occasion, is not
relevant in this instance…
Can
a student with an LLB but not a Master’s qualification be
appointed to a lecturing position? The answer to that question
is no,
if it is advertised as a permanent or long-term contract. In this
instance, however, someone was helping out on a short-term,
part-time
basis in an emergency. In such circumstances the Dean had little
option but to appoint someone who he knew was capable
of undertaking
the work. Regarding the issues of there being no selection process,
this is not an irregularity, as the appointment
was for a period less
than five months. Regarding the issue of equity: while it is
desirable that equity candidates are given preference,
in such an
emergency the Dean was at liberty to appoint whoever he feels can
handle the immediate demands placed on the teaching
program.
Besides,
Ms Anthony is coloured, she is included as a member of the designated
group. Allegation found to be false.”
[50]
The McCracken report however also expressed
its concern that various documents suggested students had been drawn
into the matter,
which was not desirable and had the potential of
creating serious trouble for the faculty and the University and
undermining the
credibility of faculty management. Accordingly, the
committee recommended that this allegation relating to Nortje was
serious enough
for it to recommend to Employee Relations that
appropriate action be taken. The applicant was critical of the report
because she
claimed that, apart from herself, the only persons who
had been interviewed by the committee were people against whom
allegations
had been made in the disclosures and that the committee
had failed to interview other staff who gave submissions in the 2005
collective
protected disclosure to the Gautschi investigation. Nortje
claimed to be confused about the issues canvassed by the committee
because
they went right back to the protected disclosures made in
2005, which were repeated to Advocate Gautschi in 2006 and she had
never
discussed those issues with Prof McCracken.
[51]
Nortje also raised further developments in
the matter with the Head of Student Affairs, Mr T Wills and the
Assistant Registrar,
Mr S Siboto (‘Siboto’), towards the
end of May 2008. Siboto had asked for affidavits before he could
pursue anything
further. In an email from the Assistant Registrar
dated 22 May 2008, he clarified that as far as he was concerned
Nortje would
be protected in relation to certain documentation she
had previously submitted by Nortje to him and that he would not
furnish information
to the McCracken investigation which had been
submitted to him in confidence. Nortje claimed that the Siboto had
been asked by
the Vice Chancellor, Prof Makgoba, to start gathering
information independently whilst the McCracken investigation was
still underway.
[52]
On 12 August 2008, Nortje received an email
to which was attached the McCracken report dated 22 August. Two days
later Pennyfather
and Prof Kidd came into her office told her to put
everything down and to leave everything except her bag. She was then
given the
letter of suspension and Kidd marched her off to her car
and watched her leave. He further phone the security staff and told
them
she should not be allowed back onto the campus. Kidd maintains
that he and Pennyfather simply accompanied her to her car.
Pennyfather
claimed that the applicant had asked them whether they
intended to “frogmarch” her off the campus and they
advised
her she could raise whatever allegations she wanted to make
in the disciplinary enquiry.
Representations
to the Registrar,Dr E Mneney
[53]
Nortje claimed that the unions decided to
hand a two-page extract taken from their written submissions to the
Gautschi enquiry to
the registrar, Dr E Mneney (‘Mneney”)
because nothing had been done about the issues and because it
concerned the integrity
of degrees. Noel confirmed this in that, they
believed that the registrar was the appropriate person on the next
level to refer
the matter to that stage because nothing had been
achieved. They had specifically requested that the submissions be
treated as
confidential and understood that it amounted to a
protected disclosure. It was incorrect to characterise the document
as having
been authored by Nortje as it had been prepared in
conjunction with both the unions. The topics canvassed in the
document were
headed:
53.1
Systems that impact on the integrity of the
University’s degrees and the fair treatment of all students:
Faculty of Law (Pmb
campus)
53.2
Self-Study Involving Staff Members-cases
where cheating has and could have taken place, thereby bringing the
University and its
degrees into disrepute.
Under the
second heading an allegation of cheating by a particular staff
member, who was a student, were made. A further allegation
was made
about another staff member having access to exam papers. The document
concludes with a recommendation that,
inter alia
, these cases
had to be investigated and administrative staff should be stopped
from registering for degrees in the same faculty
they worked in.
[54]
Despite saying earlier in her evidence that
it was a two-page extract which had been handed to the registrar when
she was shown
the letter from the registrar to Cowling dated 9 May
2007, which refers to a document given to the registrar by Nortje
consisting
of three pages, she then said that the attached document
was only part of the documentary material submitted to the registrar.
Nortje claimed to be shocked that the registrar had given the
document to Cowling, when she ought to have referred them to the
Senate, the executive of the University and the University Council.
Nortje agreed that the complaints made in the document were
raised in
the expectation they would form the basis of an investigation. She
also agreed that the people mentioned in the document
as being aware
of the matter, including herself, would be witnesses to the
allegations made. However, she could not explain why
during her
disciplinary enquiry two of the persons who testified claimed to have
no knowledge of the cheating allegations despite
being identified in
the document as persons having such knowledge. The best explanation
the applicant could come up with was that
both persons were single
mothers who were dependent on their jobs, implying that they were
scared to testify truthfully, but she
admitted she had no evidence to
support this. Nortje was reluctant to concede that she was the real
source of the information in
the document.
[55]
Nortje said that the purpose of providing
the documents to the registrar, which was done in good faith as a
protected disclosure
was a concern about issues of fairness to
students and the integrity of the university’s degrees. In her
view, once the Gautschi
enquiry had failed to address issues the
unions had a responsibility to take them forward and referred them to
the registrar. She
agreed they had also been the subject matter of
the McCracken report, which had found them all to be unfounded
allegations. Nortje
agreed that if allegations turned out to be
unfounded then that could result in disciplinary action against the
person making them.
When pressed as to who was the source of the
information relating to the allegations concerning Easthorpe, the
applicant identified
in general terms the staff members who had
attended a meeting on 17 August 2005 with Prof Ntuli including
persons like herself
who were attending in their capacity as union
representatives, though the allegations relating to Easthorpe were
not actually discussed
at that meeting.
Representations
made to Ms Z Ngema
[56]
Nortje claimed that in February 2008 Ms Z
Ngema (‘Ngema’), a member of the LSC, came to her office
and was sitting in
the corner during a conversation between Nortje
and Ms Mbatha about temporary staff appointments. It was a general
discussion and
no names were mentioned. She denied ever stating in
the presence of Ngema what was set out in the second charge.
[57]
Ngema presented a very different version at
Nortje’s disciplinary enquiry, which she had also recorded in a
written statement
at the time. The gist of her version was that she
had gone to the Law School office to obtain a list of first-year
students to
send out invitations for a cocktail party. Nortje had
printed out the list of students for her and then had told her in
confidential
tones that a secretary had been appointed to lecture
international law and that students were in an uproar about it and
that Nortje
further told her that Easthorpe did not even have an LLB
degree and was appointed only because she was Cowling’s
secretary
and that it was corruption. Nortje advised her to take the
matter to the SRC and tell them that professors Cowling and Kidd were

implicated in the appointment and that a Masters degree was needed
before anyone could lecture on any subject. Nortje had provided
her
with the contact details of SRC Senate members. Ngema queried why
Nortje was raising this because there was another lecturer
who was
still busy with her Masters degree, and Nortje responded that
Easthorpe did not even have her LLB. Ngema said she was under
the
impression that once a student’s academic record stated that
the degree was completed that student had their LLB.
[58]
Nene confirmed that Ngema had related her
encounter with Nortje to himself and Dlamini immediately after she
had been with Nortje.
When Ngema reported this to them they decided
to proceed cautiously because the matter had not been raised by
students.
[59]
Pennyfather had been appointed by Kidd to
investigate what the students had conveyed to Kidd and he confirmed
that Ngema conveyed
her version to him and that they had been advised
to take the matter up with the SRC. He said that Kidd told him that
serious allegations
had been made by member of staff regarding the
appointment of Easthorpe to the part-time lecturing position and
requested his assistance
in investigating the allegations made by the
students. Pennyfather conceded that he was unaware of the stipulation
in the University’s
policy and procedure on the elimination of
unfair discrimination and harassment in terms of which when a member
of staff complainants
about a student they were expected to refer the
matter to the line manager or the Dean of Students/Student
Development. He also
agreed that he had not spoken to Nortje but had
simply investigated what Kidd had asked him to, and that it had not
occurred to
him to speak to her.
[60]
Initially, when he spoke to Ngema and the
other students they were reluctant to identify Nortje by name but her
name came up quite
soon in the discussion. He explained to them that
they would be required to make a written statement because their
complaint could
not be pursued without it. At that juncture in the
discussion, Mr Dlamini and Mr Nene had related the incident that took
place
in the LSC offices, described below. A second meeting was held
at which it was agreed he would draft a statement based on what they

had told him which they could collect on a Friday and return to him
the following Monday. He rejected the suggestion that he had

concocted the version as it appears in the very detailed joint
statement which they signed. Even though he formulated the statement

the content was almost identical to handwritten notes that he had
taken during the meeting with them on 6 March, and as amended
jointly
with them on Monday 10 March 2008. Nene confirmed that the statement
was jointly drafted. Pennyfather claimed that by Monday
they had made
enquiries with the part-time students and found that none of the
claims made by Nortje were true and the students
were not unhappy.
They also believed they had been manipulated because Nortje’s
complaint against Ms Easthorpe had been made
before the latter even
started lecturing.
[61]
Pennyfather volunteered that Dlamini had
been reluctant to sign the document because he did not want anything
to do with the matter
and Nene was a bit hesitant because he wanted
to put it to the SRC before signing it, but Nene was happy to sign it
then and there.
He thought that perhaps they feared victimisation by
the applicant if they signed it. He claimed that Nene had raised the
possibility
but he had indicated to him that in terms of her
functions in the Law School, Nortje could not influence his academic
achievements.
In any event, after discussing it amongst themselves,
all of them had signed the document two days later. Nene did not
recall Dlamini
being reluctant to sign the document and denied that
there was a fear of intimidation occurring if they signed it. He had
no explanation
why Dlamini had not testified at Nortje’s
enquiry. Why he had not attended the disciplinary enquiry. He also
claimed that
they had also worked on document on the computer at the
LSC offices and Pennyfather had nothing to do with the drafting of
it.
[62]
Although Nene seemed at pains to distance
Pennyfather from the compilation of the statement, Ngema’s
recollection was more
along the lines of Pennyfather‘s evidence
as to how the joint statement came to be drafted. She also confirmed
that Nene
and Dlamini had been hesitant about signing the final
document, because they feared Nortje, but she did not know why. She
did not
know that the statement would be used in Nortje’s
enquiry and assumed it would be placed on Easthorpe’s file, but
in
retrospect had no reservations about the statement because she
felt that Nortje had lied to them about the students complaining
and
had manipulated the issue.
Representations
to Nene and Dlamini
[63]
Nortje denied ever meeting with Mr M Nene
(‘Nene’) on 29 February 2008. She claimed that she only
spoke to him sometime
in March when he told her that Mr Pennyfather
(‘Pennyfather’), the Proctor and assistant dean, had been
instructed
to get statements from students against her. She claimed
that Nene had approached her when she was putting a notice on the
notice
board and told her that they were in a predicament because
students were complaining about temporary appointments in the
faculty,
which she already knew about because Ms Govender and Ms
Mbatha were receiving complaints and students had even approached her
with
complaints. She had told them to go to Student Academic Affairs
or the SRC. Student academic Affairs in turn was sending students
to
go directly to the registrar, Meyerowitz. Nortje believed that some
students were too afraid to go to the LSC because the connection

between the LSC and the faculty was too close.
[64]
Nene further told her that some of the
students were called in by Pennyfather and asked if any of them had
discussed anything with
her about the temporary appointments. When he
told her this she questioned why they should be asking about her when
he knew about
the student complaints and he knew that she had not
discussed anything with him about the issue. He then told her that
the students
did not want to sign any document implicating her and
they just wanted to finish their degrees and leave the university.
She advised
him to take this intimidation up with the SRC.
[65]
Nortje also claimed that the SRC president
had phoned her and asked her about any problems in the faculty of law
because students
had been complaining and she had advised him to go
to the registrar because she knew that complaints have been
channelled to the
registrar. The first time she saw the documents
signed by the LSC representatives was during the disciplinary enquiry
in 2009.
[66]
Noel claimed no knowledge of this incident.
[67]
The thrust of Nene’s evidence was
that he and Dlamini had been approached by Nortje when they were
sitting in the LSC offices
on 29 February 2008 and she had asked them
if they were aware that a secretary being made a lecturer. When they
had responded that
they knew about the appointment and that there
appeared to be some justification for it, she had stated that it was
unacceptable
for someone to be appointed without a Master’s
degree and attempted to access University advertisement notices to
demonstrate
this to them. She had further told them that the
international Law students were in an uproar and looking for the LSC
to make a
complaint. He agreed that the exchange did not amount to a
meeting with Nortje as such. He and Dlamini decided that the best
thing
would be to approach Professor Kidd to clarify whether the
allegation was correct. They had approached him with an open mind on

the issue after meeting some students. Kidd had then explained to
them that an urgent situation had arisen owing to the illness
of the
lecturer teaching the course which became known only three days
before the semester began. During their conversation Nortje’s

name was mentioned by Kidd. Having heard his explanation they were
satisfied.
[68]
Nene agreed that it was not unreasonable
for Nortje to believe that an LLM was a requirement, based on the
advertisement for permanent
posts. On the other hand, he pointed out
that lecturers who had completed an LLB but were still busy with
their Master’s
degree were appointed as lecturers and he was
surprised that Nortje would not have been aware of this having been
at the faculty
for some time.
[69]
However, when they investigated the matter
by speaking to students participating in the course they had
discovered that nobody was
agitated or upset in any way or had any
issue with Easthorpe. He then wrote a letter in his capacity as LSC
chairperson to Nortje,
noting the result of their investigations of
her complaint and concluding:
“
None
[of the part-time International law students] had a problem with the
competence of the lecturer for International law, hence
the LSC
refuses to pursue the matter any further unless
1)
actual tangible evidence is presented that
the concerned lecturer has no qualification to occupy such a
position, or is competent
to lecture and
2)
the allegation is brought to the LS C in
writing by students, not a member of staff.
We
again stress that we would be happy to revisit the matter should 1
and 2 be satisfied together. At this stage assurance was given
to the
LSC that the concerned lecturer is being regularly monitored, and
that should there be any problem it should be taken up
with the
appropriate authorities.
In
addition we would like to thank the complainant for raising the issue
with the LSC.”
[70]
Notwithstanding the expression of gratitude
at the end of the letter to Nortje, which was mentioned as a matter
of courtesy, Nene
said that they felt that Nortje had attempted to
manipulate them to agitate over an issue which did not exist. They
also accepted
that the appointment was not improper because it was a
contract appointment to deal with an emergency. Nortje accepted that
her
version was not supported by this account.
Legal
principles
[71]
The objects of the Protected Disclosures
Act 26 of 2000 (' the PDA') are set out in section 2 (1) of the Act:
“
2(1)
The objects of this Act are—
(a)
to protect an employee, whether in the private or the public sector,
from being subjected to an occupational detriment on account
of
having made a protected disclosure;
(b)
to provide for certain remedies in connection with any occupational
detriment suffered on account of having made a protected
disclosure;
and
(c)
to provide for procedures in terms of which an employee can, in a
responsible manner, disclose information regarding improprieties
by
his or her employer's."
[72]
In
order to qualify for the protection and remedies available to an
employee under the PDA, an employee must satisfy this court
that they
have met the requirements of the act. In this instance the alleged
prejudice suffered on account of making a protected
disclosure is
dismissal, which is automatically unfair in terms of s 187(1)(h) of
the LRA. The applicant must also establish that
the communications
made were protected disclosures in the sense that the communication
qualifies as a disclosure in terms of the
definition of a disclosure
in s 1 of the PDA, and that it is also protected within the meaning
of s6 or alternatively s9 of the
PDA, which refer respectively to
disclosures made to an employer and disclosures made to a person or
body other than the employer
in one of the circumstances identified
in s 9. Apart from the procedural requirements which an employee must
satisfy under those
provisions, it is also a requirement of both
sections 6 and s 9 of the PDA that the disclosure must be made in
good faith.
[73]
Further, in
terms of s3 read with s 4(2)(a) of the PDA and s 187(1)(h) an
employee must establish that her dismissal was “on
account,
or partly on account, of having made a protected disclosure”
.
In relation to the last leg, provided the employee sets out
sufficient evidence to raise a credible possibility that her
dismissal
was at least partly on account of making a protected
disclosure, then the employer must prove that this was not the
reason, in
keeping with test for the onus as articulated in
Kroukam
v SA Airlink (Pty) Ltd
[1]
“
[28]
In my view,
section
187
imposes
an evidential burden upon the employee to produce evidence which is
sufficient to raise a credible possibility that an automatically

unfair dismissal has taken place. It then behoves the employer to
prove to the contrary, that is to produce evidence to show that
the
reason for the dismissal did not fall within the circumstance
envisaged in
section
187
for
constituting an automatically unfair dismissal.”
[74]
The test for causation applicable to automatically unfair
dismissals under s 187 of the LRA, has been formulated by the LAC in
the
following terms:
“
[27]
In the …
case of Kroukam v SA Airlink (Pty) Ltd decided in the Labour Appeal
Court (Case No. JA3/2003), Zondo JP found that
the principal or
dominant reason for the appellant’s dismissal “was that
the respondent was not happy with the role
that he was playing in
seeking to represent the interests of the union”. He found that
this rendered the dismissal automatically
unfair.  In the same
case, Davis AJA came to this conclusion as well. I, who was one of
the judges in that appeal, also reached
this conclusion. In other
words,
the
court was unanimous that if the principal or dominant or primary
reason for a dismissal was an employee’s dismissal was
the
activities undertaken by the dismissed employee on behalf of a union,
this rendered the dismissal automatically unfair. This
is the case
even if there are other reasons which may have played a lesser
role
.”
[2]
(emphasis
added)
[75]
However, because s 4(2)(a) deems a
dismissal in breach of s 3 of the  PDA to be automatically
unfair even if the reason for
the dismissal was only
partly
on account of the fact that the employee made a protected disclosure,
the effect of these provisions would appear to dilute the

requirement, as expressed in the
BIFAWU
matter, that the predominant reason for
a dismissal must be the making of a protected disclosure for the
purpose of determining
if a dismissal was automatically unfair under
s187(1)(h) of the LRA.
[76]
In order to constitute a protected
disclosure, the disclosure must concern issues within the ambit of
the definition of a disclosure
in the PDA, and must be made in terms
of one of a number of alternative channels of disclosure. Section 1
of the PDA defines a
disclosure in the following terms:
"(i)
“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:
That
a criminal offence has been committed, is being committed or is
likely to be committed;
that
a person
has failed, is failing or is likely to fail to comply
with any legal obligation to which that person
is subject;
that
a miscarriage of justice has occurred, is occurring or is likely to
occur;
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 No, 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; ...”
(emphasis
added)
[77]
This substantive component of what
constitutes a disclosure for the purposes of the PDA requires the
employee to establish that
they had a reason for believing that the
information they disclose actually shows or supports an inference
that one of the impugned
acts set out in subsections (a) to (f) has
taken place, or that such an act has been covered up or is likely to
be covered up.
Evaluation
Did
the applicant make disclosures of information as defined in the PDA?
[78]
In essence, three types of communication
made by Nortje which, in theory, might have constituted disclosures
under the PDA. These
were:
78.1
the document submitted to X2 in April or
May 2007;
78.2
the communications to Ngema (X3) and Nene
(X4) in February 2008, and
78.3
the email to Mbongwe (X5) on 27 February
2008.
The
communication to the registrar
[79]
The thrust of contentious content of the
document communicated to the registrar in April or May 2007, which
the applicant believes
contributed to her dismissal concerned the
second portion of the document headed ‘Self Study Involving
Staff Members’.
In essence, the complaint about alleged
cheating concerned Easthorpe and the complaint related to a staff
member having access
to exam papers related to Amod. These complaints
were also the subject of the McCracken report which found them to be
unfounded.
The complaints were referred to the registrar before the
McCracken report was concluded. Previously they had been submitted to
Advocate Gautschi and Professors Stanisland and Ntuli. The
applicant's rationale for repeating the complaints to the registrar
was that despite those processes, the complaints had not been acted
upon.
[80]
The
applicant herself declined to provide any information to the
McCracken investigation, despite being invited to do so. She claimed

that the source of her information was other staff members. These
persons failed to come forward at her own disciplinary enquiry
to
testify about the cheating allegations. On a balance of the evidence
presented, there does not appear to have been anything
to support the
allegations conveyed to the registrar on that issue, which might have
formed the basis for Nortje having reason
to believe such impropriety
had taken place. The LAC has accepted that a generous interpretation
of ‘information disclosed
which shows or tends to show’
improprieties is appropriate given the objects of the PDA. It has
also held that an employee
does not have to have personal knowledge
of information in order to have reason to believe that something
irregular has or might
happen.
[3]
[81]
The McCracken report found the complaints
to be without foundation. That in itself would not be sufficient to
deny Nortje a defence
that she had made protected disclosures.
However, the fact that the applicant was unable to produce any
witnesses who could confirm
their own knowledge of the improprieties
or even that they had received such information and conveyed it to
Nortje who acted on
it in good faith that it might be true, casts
serious doubt on whether the allegations did have an independent
source. If they
originated with the applicant then she ought at least
to have testified about what led her to believe such things might
have been
true to establish the reason for her belief, even if she
could not prove it.
[82]
In the circumstances, in the absence of any
evidence of the foundation for her belief, however unreliable or
inaccurate that factual
substratum might have been, I am not inclined
to accept that the applicant had any reason to believe the claims
might be true.
Email
to Mbongwe
[83]
In the email to Mbongwe, the applicant
raised complaints that there had been irregularities and unfairness
in the appointment of
academic staff. Firstly, she contended that the
posts should have been advertised. Secondly, only candidates with LLM
degrees should
have been considered and thirdly, the University’s
employment equity policy was not complied with. The supposition on
which
all these claims of Nortje rested was that, the appointments
should have complied with the same process that was followed in
making
permanent staff appointments even though the posts in question
were fixed term appointments of short duration. There was substantial

evidence to the effect that the so-called blue form procedure was
used for short term academic appointments. Also, even though
the form
referred to compliance with Equity policies, the equity policy was in
fact only applicable to permanent posts and therefore
appointments
made under the blue form procedure could not be in breach of the
policy.
[84]
I am also satisfied that the argument that
a candidate for short term appointments could not be considered to
have a degree until
the degree had been conferred by convocation is a
spurious one, and that a degree is obtained once a student has met
all the requirements
for completing the degree. In this regard, the
reference in the University’s statutes to a person not been
entitled to any
benefits accruing from attaining a degree until the
degree has been conferred by convocation was not intended to refer to
their
eligibility for employment based on their academic
qualifications. Quite apart from the fact that it seems an anomalous
use of
the term benefit to refer to eligibility to apply for
employment, if that were the case, it would wreak havoc with
enrolment of
students for postgraduate studies and would prevent
employment of former students who had completed a degree until after
the academic
year was already underway.
[85]
The first question which arises is whether
Nortje’s belief that even short term academic appointments
should satisfy all the
requirements for making full-time appointments
was a reasonable one when she made it. Nortje acknowledged under
cross-examination
that there was no procedure governing blue form
appointments. It had also been suggested to Kidd under
cross-examination that her
belief was a reasonable one but he thought
it was strange that if she did believe that she had never raised the
issue in relation
to numerous other temporary appointments of a
similar nature made in the Department. As this evidence was only
elicited under cross-examination
of Kidd, it had never been put to
Nortje during her cross-examination, so it might be argued that it
should not carry much weight
on this issue.
[86]
What
had been put to Nortje was that, a number of other appointments of
staff who had not had the degrees conferred by convocation
had
nonetheless been appointed to positions requiring the degrees in
question. Her only response to this was to make a rather weak

suggestion that those cases were distinguishable because they
involved persons applying for positions requiring LLM degrees and

they already had LLB degrees, unlike the appointment she reported on
where the candidate had no degree conferred on her at the
time. It is
the absence of the qualification of academic appointments being
raised as an issue previously, which makes the genuineness
of her
belief in the strained interpretation of the University’s rules
which she and Lumina claimed to adhere to, harder
to accept as
anything more than a contrivance to cast doubt on the regularity of
Easthorpe’s appointment in particular, rather
than a
bona
fide
but mistaken opinion
[4]
.
In this regard, it is true that applicant’s complaint
about lack of qualifications was raised in relation to two other

appointments as well, but in the case of those appointees the
applicant did not take the extra step of attempting to portray
student
discontent as well.
[87]
If the applicant had shown a consistent
concern with blue form appointments previously and had also raised
her worries about unqualified
lecturers when other persons were
appointed  to jobs before their degrees had been formally
conferred, there might be more
reason to believe that she had
genuinely, if mistakenly, believed Easthorpe’s appointment was
irregular and that her interest
in raising it as an issue was purely
a matter of the university’s academic reputation and compliance
with standards which
was at stake.
[88]
Even though Nortje’s complaint to
Mbongwe was a distinct communication, the assessment of whether it
was reasonable and
bona fide
cannot be disassociated from her representations to the members of
the Law students Council. Although the latter communications

allegedly originated from student complaints, the central theme of
those complaints was the fact that Easthorpe lacked the necessary

qualifications to lecture.
Communications
to Ngema and Nene
[89]
If the representations of Nortje at the
time were to be believed, a crisis was brewing in the part-time
International Law class
because of dissatisfaction with Easthorpe. On
the strength of her representations they went to discuss the matter
with the deputy
dean. It was only on further investigation that they
found that the claim those students were “in an uproar”
about
Easthorpe’s appointment was unfounded.
[90]
Nortje herself produced no independent
evidence to corroborate her version that she was merely the
well-meaning messenger conveying
information received by her. It is
also noteworthy that Nortje raised the issue of students being in an
uproar before Easthorpe
had even commenced lecturing, which made it
even less probable that the issue could have originated with students
in the International
law class. Although Nortje tried to suggest that
the student leaders had been pressurised to make statements
implicating her, apart
from some aspects of Nene’s evidence
where he sought to downplay the amount of interaction between
themselves and Pennyfather
in finalising their statement, I am
satisfied on the probabilities that the statement which was finally
drawn up reflected their
own contemporary recollection of the events
and that their sense they had been used by Nortje was genuine.
[91]
On balance, the evidence tended to show
that the applicant had played the role of a
provocateur
who was attempting to stimulate discontent where there was none. It
is reasonable to assume that she believed that if she could
portray
that students were also angry, it would raise the stakes around
Easthorpe’s appointment and create a semblance of
independent
support for the complaint which she had raised with Mbongwe.
[92] In
Radebe
the LAC stated
:
“
There
is further, in my view, an overlap when determining whether the
employee making the disclosure was acting in good faith and
further
whether he had the requisite reason to believe when making a
disclosure that improprieties had been committed or were continuing.

Honesty plays a pivotal role in both situations. Whilst good faith
and honesty may conceivably amount to the same thing, I am of
the
view that a case by case approach is the proper one for a court
considering these issues. Factors such as reckless abandon,
malice or
the presence of an ulterior motive aimed at self advancement or
revenge, for instance, would lead to a conclusion of
lack of good
faith
.
A clear indicator of lack of good faith is also where disingenuity is
demonstrated by reliance on fabricated information or information

known by the employee to be false
.
The absence of these elements on the other hand is a strong indicator
that the employee honestly made the disclosure wishing for
action to
be taken to investigate it.”
[5]
(emphasis
added)
[93]
In this instance, the only identifiable
source of the information about part-time students complaining was
Nortje herself and the
information she provided was false. Nortje was
so obsessed with the Easthorpe appointment that she was not satisfied
with lodging
a complaint about her own alleged misgivings but sought
to stimulate similar thoughts in others even if it meant providing
them
with false information.
[94]
Clearly, apart from not being raised with
her line manager, the information conveyed to the LSC representatives
was false, and Nortje
knew that. Such statements could never be the
basis for claiming a protected disclosure.
Reason
for the applicant’s dismissal
[95]
Considering all the allegations of
impropriety related by the applicant, it is difficult to find that
any of them satisfy the requirements
of constituting protected
disclosures. Consequently, her dismissal cannot in principle have
been partly on account of making any
of them.
[96]
In any event, if I am wrong in concluding
that some of them were not protected disclosures, it is still
necessary to consider if
the mere fact they were made means that her
dismissal was partly on account of making them. Although Nortje was
found guilty on
all four charges, it was her conduct in relation to
lodging the complaint with Mbongwe and more particularly the role she
played
in trying in bad faith to galvanise the LSC leadership based
on false information that clearly stood out as the most objectionable

forms of misconduct. Her conduct in relation to the LSC students
alone more than warranted dismissal. It was by its very nature

designed to try and stimulate discontent among students and was
grossly disloyal to the University. It is difficult to understand
how
the University could have been expected to retain her services in any
capacity after such conduct, even if all her other claims
had indeed
been protected disclosures.
[97]
Consequently, even if any of her other
statements made could conceivably be construed as protected
disclosures, it cannot be said
her dismissal would have been partly
on account of them, because her misconduct under charges 2 and 3
eclipsed the significance
of her other alleged misconduct on the
remaining charges completely, to the extent that it is difficult to
see how they would have
played any material role in deciding to
dismiss her.
[98]
On the basis of my own findings, namely
that the applicant failed to establish that she had made protected
disclosures, I am also
satisfied that solely on the second and third
charges which she was guilty of, the applicant’s dismissal was
appropriate.
Quite apart from the inherent disloyalty of her conduct
in relation to those charges, there was no prospect of her adjusting
her
behaviour in my view, especially given her fractious history with
the University.
[99]
The applicant’s claim of a
procedurally unfair dismissal related more to her perception of how
she was escorted from the campus
when she was suspended. While I
cannot say on balance that she was ‘frogmarched’ off the
premises, those events do
not have a direct bearing on the fairness
of the disciplinary enquiry and there was no other factual basis
advanced to demonstrate
that she had suffered any impediments in the
presentation and preparation of her defence. Consequently, I do not
think the claim
of procedural unfairness has any merit.
[100]
In conclusion, I believe the
applicant’s dismissal for misconduct was substantively and
procedurally fair.
Costs
[101]
On the question of costs, this would be a
case where ordinarily I would be inclined to award costs because of
the way the applicant
went about trying to ferment discontent in
circumstances where she could not claim her intentions were
bona
fide.
On the other hand, I accept
that the applicant might genuinely have believed in other respects
that she had a moral or even
legal duty to speak out on any perceived
impropriety even if she was became a zealot in her quest to find
fault and was injudicious
and reckless in her criticisms of the
university. In the circumstances, I am disinclined to order costs
against her.
Order
[102]
The applicant’s automatically unfair
dismissal claim is dismissed and I find that her dismissal was
substantively and procedurally
fair.
[103]
No order is made as to costs.
_______________________
R
LAGRANGE, J
Judge of
the Labour Court of South Africa
Appearances:
For the
Applicant:      P Hunt instructed by Randles
Inc C/O Webber Attorneys
For
the Respondent: M Maeso of Shepstone & Wylie
[1]
[2005]
12 BLLR 1172
(LAC)
at 1224.
[2]
BIFAWU
& another v Mutual and Federal Insurance Company Ltd
[2006] 2 BLLR 118
(LAC)
a
t 126-7.
[3]
Radebe & another v
Premier, Free State Province & others
(2012) 33 2353 (LAC)
at
2371, [36]
[4]
A disclosure of
‘information’ has been held by the SCA to include a bona
fide opinion in
City
of Tshwane Metropolitan Municipality v Engineering Council of SA &
another
[2007] ZALC 74
;
[2010]
3 BLLR 229
(SCA)
at
245-6,
[41]
.
[5]
At
2371,[35].