Gallocher v Social Housing Regulatory Authority and Another (J1485/2019) [2019] ZALCJHB 162; (2019) 40 ILJ 2723 (LC) (3 July 2019)

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[2019] ZALCJHB 162
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Gallocher v Social Housing Regulatory Authority and Another (J1485/2019) [2019] ZALCJHB 162; (2019) 40 ILJ 2723 (LC) (3 July 2019)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: J 1485 / 2019
In
the matter between:
RORY GALLOCHER

Applicant
and
SOCIAL HOUSING
REGULATORY AUTHORITY

First Respondent
MINISTER
OF HUMAN SETTLEMENTS

Second Respondent
Heard:
28 June 2019
Delivered:
3 July 2019
Summary:
Jurisdiction – Labour Court does have jurisdiction to
consider an urgent application to intervene in the case of suspension

of employee – exceptional and compelling reasons however
required – exceptional circumstances shown
Urgency
– applicant must establish compelling considerations of urgency
– urgency shown
Suspension
– whether suspension lawful – principles considered –
decision to suspend employee taken at a council
meeting where
required quorum not established and regulatory procedures not
complied with – no valid decision taken to suspend
the employee
– suspension unlawful
Occupational
detriment – principles considered – on the facts, the
employee’s suspension constitutes occupational
detriment –
urgent intervention to uplift suspension justified
Costs
– principles considered – no order as to costs made
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
The applicant has brought an urgent application to declare his
suspension
by the first respondent on 20 June 2019 to be unlawful and
thus invalid. The applicant has also raised a complaint that his
suspension
constitutes an occupational detriment and for that reason
as well should be uplifted.
[2]
Ordinarily,
I would be reluctant to entertain these kind of applications, as I
have done on numerous occasions in the past, considering
the fact
that a suspension can be properly challenged in terms of the unfair
labour practice jurisdiction and prescribed dispute
resolution
processes under the Labour Relations Act (‘LRA’),
[1]
and that urgent applications are often abused by litigants who seek
to bypass these prescribed dispute resolution processes.
[2]
[3]
The simple
point is that as a matter of general principle the proper prescribed
dispute resolution processes prescribed by the LRA
must be
followed.
[3]
However, this Court
can nonetheless intervene, provided an applicant can show
extraordinary and compellingly urgent circumstances.
In
Booysen
v Minister of Safety and Security and Others
[4]
,
it was as follows:
‘…
such an
intervention should be exercised in exceptional cases. It is not
appropriate to set out the test. It should be left to the
discretion
of the Labour Court to exercise such powers having regard to the
facts of each case. Among the factors to be considered
would in my
view be whether failure to intervene would lead to grave injustice or
whether justice might be attained by other means.
The list is not
exhaustive.’
[4]
The simple question that must thus be answered in this application is
whether the applicant has made out a proper case of compellingly
urgent and extraordinary circumstances to justify intervention
at
this stage. If not, that must be the end of this matter for the
applicant, and the applicant is compelled to pursue his suspension
as
an unfair labour practice in the ordinary course. In seeking to
advance a case of compellingly urgent and extraordinary
circumstances,
the applicant relies only on two issues. The first is
that the decision taken by the first respondent to suspend the
applicant
was inquorate and thus invalid. The second is that the
applicant’s suspension in fact constituted an occupational
detriment
which would justify such kind of intervention.
[5]
The respondents opposed the application. The respondents also raised
a
number of objections
in limine
, being that this Court did
not have jurisdiction to entertain this application, and that the
matter was not urgent. A non-joinder
point was also raised, but this
was not pursued when the applicant abandoned its prayer for a costs
order against the council members
of the first respondent.
[6]
As the
applicant is seeking final relief, the applicant must satisfy three
essential requirements which must all be shown to exist,
being:
(a)
a clear right;
(b)
an injury actually committed or reasonably apprehended; and
(c)
the absence of any other satisfactory remedy.
[5]
[7]
Before deciding the merits of the applicant’s application, I
will
first deal with the jurisdictional and lack of urgency issues
raised by the respondents.
Jurisdiction
[8]
The Court
in
Gcaba
v Minister for Safety and Security and Others
[6]
said that jurisdiction means: ‘…
the
power or competence of a court to hear and determine an issue between
parties …
’.
In the case of applications such as the current application, in which
urgent intervention in the suspension of an employee
is sought, the
Labour Court has the jurisdiction in terms of section 157,
[7]
and the competence and power in terms of Section 158,
[8]
to do this. In
Booysen
supra
[9]
,
the Court said:
‘…
. the
Labour Court has jurisdiction to interdict any unfair conduct
including disciplinary action. …’
[9]
Whether the
Labour Court should ultimately decide not to intervene, but dismiss
the application because the applicant should have
followed the
dispute resolution process prescribed by the LRA and not burden this
Court with the matter at this stage, is not an
issue of jurisdiction.
It is simply a decision made by the Labour Court to the effect that
the applicant has a bad claim. It must
also be considered that in
order for the Court to decide that the applicant’s claim is
bad, it has to follow that the Court
must have jurisdiction to do
so.  In
Makhanya
v University of Zululand
[10]
it was held as follows:
‘…
I
have pointed out that the term "jurisdiction", as it has
been used in this case, and in the related cases that I have

mentioned, describes the power of a court to consider and to either
uphold or dismiss a claim. And I have also pointed out that
it is
sometimes overlooked that to dismiss a claim (other than for lack of
jurisdiction) calls for the exercise of judicial power
as much as it
does to uphold the claim. ...
’
[10]
In simple terms, the respondents’ jurisdictional objection is
founded on a contention
that the applicant has a bad claim, which
always requires a consideration of the merits of the claim, which
cannot happen if the
Court does not have jurisdiction to do so. There
is accordingly no merit in the respondents’ jurisdictional
objection. This
Court clearly has jurisdiction to entertain the
applicant’s application.
Urgency
[11]
In
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[11]
the Court dealt with Rule 8, being the Rule applicable to urgent
applications in the Labour Court, as follows:
‘
Rule 8 of
the rules of this court requires a party seeking urgent relief to set
out the reasons for urgency, and why urgent relief
is necessary. It
is trite law that there are degrees of urgency, and the degree to
which the ordinarily applicable rules should
be relaxed is dependent
on the degree of urgency. It is equally trite that an applicant is
not entitled to rely on urgency that
is self created when seeking a
deviation from the rules.’
[12]
I have
dealt with the general requirements for urgency in detail in the
judgment of
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another
[12]
,
and said:
‘
What would an
applicant who seeks to make out a case of urgency then have to show?
In
Mojaki v Ngaka Modiri Molema District Municipality and Others
the Court referred with approval to the following
dictum
from
the judgment in
East Rock Trading 7 (Pty) Ltd and Another v Eagle
Valley Granite (Pty) Ltd and Others
:
‘…
. An
applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant must

state the reasons why he claims that he cannot be afforded
substantial redress at a hearing in due course. The question of
whether
a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence of
substantial
redress in an application in due course. The rules allow
the court to come to the assistance of a litigant because if the
latter
were to wait for the normal course laid down by the rules it
will not obtain substantial redress.’’
[13]
In
Northam
Platinum
[13]
I also referred to the consideration that where an applicant seeks
final relief, the Court must be even more circumspect when deciding

whether or not urgency has been established, and that, in simple
terms, the applicant must make out an even better case of urgency.

Another consideration is possible prejudice the respondent might
suffer as a result of the abridgement of the prescribed time periods

and an early hearing or determination.
[14]
[14]
Further,
urgency must not be self-created by an applicant, as a consequence of
the applicant not having brought the application
at the first
available opportunity.
[15]
In
other words, the more immediate the reaction by the litigant to
remedy the situation by way of instituting litigation, the better
it
is for establishing urgency.
[16]
But the longer it takes from the date of the event giving rise to the
proceedings, the more the urgency is diminished. In
short, the
applicant must come to Court immediately, or risk failing on
urgency.
[17]
[15]
Applying the above principles to the facts
in casu
, the first
consideration is that the applicant was suspended on 20 June 2019.
His suspension was not preceded by any process that
could have
forewarned him of his possible suspension. As such, and for all
intents and purposes, this is the date when the dispute
susceptible
for referral to this Court arose. It must also be considered that the
actual suspension letter was only issued to the
applicant the
afternoon of 20 June 2019. It took the applicant only four days,
being until 24 June 2019, to file the urgent application.
Considering
that 20 June 2019 was a Friday and there was an intervening week end,
I consider this to be prompt and immediate action,
taken at the very
earliest opportunity. The first test for urgency is thus successfully
passed.
[16]
This leaves
only the issue of substantial redress in due course. It is of course
so that the applicant has pursued an unfair labour
practice dispute
based on an unfair suspension to the CCMA, on 23 June 2019. This may
well afford the applicant, in general, substantial
redress in the
ordinary course, in the form of the uplifting of his suspension. If
the applicant was only challenging the fairness
of his suspension, I
may well have declined to entertain the matter because of this. But
the applicant has contended that the actual
decision to suspend him
was taken by the first respondent’s council when it was
inquorate, thus rendering it invalid. This
is not an issue that would
be dealt with in an unfair suspension dispute. The issue of whether
the applicant’s suspension
was lawful is an issue distinct and
separate from whether it was fair, and in this regard, there is not
another mechanism to obtain
substantial redress in due course.
[18]
In
SA
Municipal Workers Union on behalf of Matola v Mbombela Local
Municipality
[19]
the Court considered a situation where an employee was suspended
without compliance with a specifically prescribed process in a

statutory regulation, and accepted this established urgency. The
Court said the following:
[20]
‘…
. In
failing to comply with the requirements of regulation 6 the
respondent infringed on a clear right of the applicant not to be

suspended without a prior hearing.
The
harm that the applicant suffers pending the finalisation of the
disciplinary hearing is not financial because he receives his
salary
during the suspension. The irreparable harm that he suffers has to do
with his dignity and freedom to work. The impact of
the suspension on
the freedom to work and dignity of the suspended employee was stated
in
Minister of Home Affairs & others v Watchenuka &
others
, in the following terms:
'The freedom to engage in
productive work — even where that is not required in order to
survive — is indeed an important
component of human dignity, as
submitted by the respondents' counsel, for mankind is pre-eminently a
social species with an
instinct for meaningful association.
Self-esteem and the sense of self-worth — the fulfilment of
what it is to be human —
is most often bound up with being
accepted as socially useful.'
[17]
Also, a further central element to the applicant’s case is the
issue of an occupational
detriment. The applicant has explained in
the founding affidavit that if his suspension is not immediately
uplifted, the individuals
that orchestrated his suspension to get him
out of the first respondent would have succeeded, and they would be
in a position to
in essence sweep all the irregularities and unlawful
conduct he complained of under the carpet. In this regard, it must be
considered
that the applicant is the CEO of the first respondent and
a member of the council, which is about as senior as one can get, and

he would be directly responsible to protect the interests of the
first respondent. I accept that this is also a consideration that

mitigates strongly against proper substantial redress being available
in due course. Further, an occupational detriment carries
with it an
inherent component of urgency, if it exists.
[18]
I am aware
of the judgment in
Maqubela
v SA Graduates Development Association and Others
[21]
where the Court, in what was on face value an application quite
similar to the application
in
casu
,
dismissed the application to uplift a suspension, and held:
‘…
it
is my view that the applicant exaggerated his importance to the first
respondent and in relation to the AGM. Furthermore, whether
the AGM
is to proceed or not cannot in any manner make the application
urgent. The applicant has not persuaded the court that sufficient

grounds exist which necessitate a relaxation of the rules and
ordinary practice. In my view, as a result of the applicant's sense

of self-importance, he created the urgency. Having referred a dispute
to the CCMA, he is in a position to obtain substantial relief
at a
later stage as already indicated. Obviously any substantial relief
would be dependent on the merits of his case. …’
However,
in my view, and for the reasons fully elaborated on below, this
ratio
in the judgment in
Maqubela supra
is entirely distinguishable on the facts of the application now
before me, and cannot apply.
[19]
In my judgment, and overall considered, this is a case where justice
demands that the application
be considered as one of urgency. The
nature of the allegations made by the applicant are such that it
cannot be left unattended
until the matter may one day be considered
in the ordinary course. By then it may well be too late. I therefore
consider that the
requirements of urgency have been satisfied in this
case, and I determine that the application be heard as one of
urgency.
[20]
I will now turn to the merits of the matter, by first setting out the
relevant facts.
The
relevant facts
[21]
Because the
applicant is seeking final relief in motion proceedings, any factual
disputes between the parties must be determined
on the basis of the
judgment of
Plascon
Evans Paints v Van Riebeeck Paints.
[22]
In
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and
Another
[23]
this test was summarized as thus:
‘…
it is the
facts as stated by the respondent together with the admitted or
undenied facts in the applicants' founding affidavit which
provide
the factual basis for the determination, unless the dispute is not
real or genuine or the denials in the respondent's version
are bald
or uncreditworthy, or the respondent's version raises such obviously
fictitious disputes of fact, or is palpably implausible,
or
far-fetched or so clearly untenable that the court is justified in
rejecting that version on the basis that it obviously stands
to be
rejected.’
[22]
Where it
comes to what can be considered to be ‘admitted facts’ in
the context of this test, the Court in
Gbenga-Oluwatoye
v Reckitt Benckiser SA (Pty) Ltd and Another
[24]
said the following:
‘
The appellant
approached the Labour Court by way of urgent application. The general
rule applicable to the resolution of genuine
disputes of fact in
applications in which final relief is sought is stated in
Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
,
namely that —
'where there is a dispute
as to the facts a final interdict should only be granted in notice of
motion proceedings if the facts
as stated by the respondents together
with the admitted facts in the applicant's affidavits justify such an
order. ... Where it
is clear that facts, though not formally
admitted, cannot be denied, they must be regarded as admitted'.
[23]
It is
equally clear from the
Plascon
Evans
principles as set out above that disputes of fact must be bona fide
and real, so as to constitute genuine disputes of fact that
must be
determined in favour of a respondent.  In this respect, and in
SA
Football Association v Mangope
[25]
the Court held:
‘…
A real
dispute of fact will not arise therefore if the respondent relies
merely on a bare denial of the applicant's allegations
or simply puts
the applicant to the proof of allegations and in effect indicates no
intention to lead evidence disputing the truth
of the applicant's
allegations. Bare denials will not suffice to give rise to a dispute
of fact where the facts averred fall within
the knowledge of the
denying party and no basis is laid for disputing the veracity or
accuracy of the averment. There is accordingly
a duty upon a legal
adviser who settles an answering affidavit to ascertain and engage
with facts which his or her client disputes
and to reflect such
disputes fully and accurately in the answering affidavit. If that
does not happen, the court may well take
a robust approach and grant
the applicant relief …’
[24]
Applying
all the aforesaid principles, it must be said that the respondents’
answering affidavit on several occasions comes
up short in
establishing a genuine factual dispute, to the extent of discounting
the applicant’s version. A number of essential
contentions in
the founding affidavit are simply met with bald denials. One example
of this is the applicant’s case and explanations
in the
founding affidavit as to what happened in the council meetings in
April, May and June 2019. Another example is where the
applicant in
some detail explained why that which was contained in a tip-off
report of Khulile Boqwana (‘Boqwana’)
was false.
[26]
Several of the pertinent allegations of the applicant regarding
events involving Boqwana and council members are met with a statement

that the deponent has no knowledge thereof, and the applicant is put
to the proof. These failues, as I see it, are such that it
cannot
cause a factual dispute determined in favour of the respondents in
terms of
Plascon
Evans
.
The respondents must at least engage the applicant and provide some
particularity as to the basis for the denials or opposition.
[27]
What is critical is that all council meetings are formally minuted,
and all the respondents had to do is put up these minutes,
which they
never did. In my view, the following
dictum
from
the judgment of the Constitutional Court in
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[28]
,
properly describes the approach upon which I will decide what
constitutes the proper factual matrix that must form the basis of
my
decision,
in
casu
:
‘…
Ordinarily,
the Court will consider those facts alleged by the applicant and
admitted by the respondent together with the facts
as stated by the
respondent to consider whether relief should be granted. Where,
however, a denial by a respondent is not real,
genuine or in good
faith, the respondent has not sought that the dispute be referred to
evidence, and the Court is persuaded of
the inherent credibility of
the facts asserted by an applicant, the Court may adjudicate the
matter on the basis of the facts asserted
by the applicant.'
[25]
The first
respondent is an organ of state. It was established in terms of
section 7 of the Social Housing Act (‘SHA’).
[29]
Its purpose is to support and facilitate the development of social
housing throughout the entire country, as a regulatory authority,

aimed at low and medium income households. It is also an entity as
contemplated schedule 3A of the Public Finance Management Act

(‘PFMA’).
[30]
[26]
In terms of section 8(1) of the SHA, the first respondent consists of
a council appointed
in terms of section 9, a chief executive officer
(CEO) appointed by the council with approval of the minister who is
responsible
for the day to day management of the affairs of the first
respondent, and a corporate services manager (CSM) appointed by the
CEO
who is responsible for the financial management of the first
respondent. In terms of section 8(2), both the CEO and CSM are
executive
members of the council of the first respondent as well. In
terms of section 10, the CEO appoints the staff of the first
respondent.
[27]
In terms of section 9(1) of the SHA, the council shall have a minimum
of 7 and a maximum
of 12 members. Currently, the council of the first
respondent consists of 11 members. The applicant as CEO is an
ex
officio
member, as well as the CSM, Ms A Puoane. The chairperson
of the council is Mr S Ganda. The remaining 8 members of the council
are
Mr K Sebata, Ms N Ntshogwana, Mr I Kotsoane, Ms K Kwinana, Adv M
Mdludlu, Mr P Ximiya, Mr M Mexenge and Mr I Higgins.
[28]
The SHA provides in section 9(5) that the minister may terminate the
membership of a council
member, but the SHA does not provide for the
suspension of a member. In terms of section 9(11), the quorum for any
council meeting
is 50% plus 1.
[29]
The first respondent has also adopted a Charter, with effect from 1
November 2017, which
regulates all the functions, powers and duties
of the council of the first respondent (referred to in this judgment
as ‘the
Charter’). The Charter is applicable to members
of the council, and the various subordinate committee members (clause
1.2).
In terms of clause 1.1, the purpose of the Charter was to set
out the demarcation of the roles, functions, obligations, rights,

responsibilities and powers of the council, the powers delegated to
committees, the processes and practices of the council in respect
of
its duties, functions and responsibilities, and the parameters within
which the council will operate and ensure the application
of good
corporate governance. It is much like the MOI of a private
corporation.
[30]
Of relevance to the matter at hand, is firstly clause 1.4.5 of the
Charter, which provides
that council members carry a fiduciary
responsibility and owe a duty of care to the first respondent. Next,
clause 1.4.11 provides
that the council shall ensure that the first
respondent complies with all relevant laws, regulations and codes of
good business
practice. In terms of clause 1.4.13, the responsibility
for the day to day management of the first respondent shall vest in
the
CEO, which in this instance is the applicant. The CEO is
accountable to the council for a variety of operational and policy
issues
(clause 1.5.3.3).
[31]
Clause 1.9 regulates the decision making authority of the council.
The council, in terms
of this clause has the authority on policy and
regulatory matters, which includes to appoint and discharge senior
management, and
to determine the remunerations and employment
conditions of senior management. The authority of the council is
exercised at regular
council meetings, which must take place on at
least a quarterly basis (clause 1.14.1). Special meetings may be
called with the
approval of the chairperson in order to dispense with
urgent matters should the need arise. In line with the SHA itself,
the quorum
for a council meeting shall be 50% plus 1 (clause 1.14.4).
[32]
Clause 1.14.5 reads:
‘
A decision taken
or act authorised shall not be invalid merely because:-
1.14.5.1. At the time,
the decision was taken or the act was authorised there was a casual
vacancy on Council; or
1.14.5.2 A person not
entitled to, sat as Member of Council.’
However, clause 1.14.6
reads:
‘
The decision or
act shall be authorised if:-
1.14.6.1 By a majority of
Council members who were present and who were entitled to sit as
members; and
1.14.6.2 The Members
constituted a quorum.’
[33]
The procedure that must be applied where it comes to meetings of the
council is regulated
by clause 1.15 of the Charter. Clause 1.15.2
requires prior notice of a council meeting of at least 14 days,
unless exceptional
circumstances dictate otherwise. Also, the notice
shall be accompanied by an agenda, unless the chairperson decides, by
exercising
a discretion based on confidentiality, that it should not
be provided. Also, and in terms of clause 1.15.7, a council member
may
not vote nor be counted in the quorum on any matter in which such
member has an interest. Lastly, and in terms of clause 1.15.9,
a
minute shall be kept of all council meetings and the decisions taken
therein.
[34]
The first respondent also has its own internal disciplinary code and
procedure, applicable
to all employees of the first respondent. This
disciplinary code and procedure provides, in clause 3.5 thereof, for
the suspension
of employees on full pay pending the conclusion of a
disciplinary investigation. The disciplinary code also provides that
an employee
will be given the opportunity to motivate why he or she
should not be suspended, but the first respondent’s management
will
have the full discretion to decide whether or not to suspend.
[35]
Turning then specifically to the applicant, he was appointed as CEO
of the first respondent
with effect from 1 February 2016, on a 5 year
contract ending on 31 January 2021. He is a full time employee of the
first respondent,
in terms of his contract of employment.
[36]
What does appear to be common cause between the parties is that prior
to the appointment
of the applicant, the first respondent was having
difficulties with irregular expenditure and corruption, and the
minister did
second officials from the ministry to assist the first
respondent. It is disputed as to whether the first respondent was
placed
under actual administration, but nothing turns on this. What
is however common cause is that after the appointment of the
applicant,
there was a marked general improvement in all of the
spheres of operation of the first respondent.
[37]
According to the applicant, and when he sought to implement a
turnaround strategy, he encountered
resistance from a long standing
senior employee of the first respondent, being Boqwana, the executive
for compliance, accreditation
and regulation. Boqwana had a close
relationship with a number of members on the first respondent’s
council. Boqwana often
defied and opposed the applicant’s
decisions where it came to operations at the first respondent.
[38]
The applicant ultimately resorted to suspending Boqwana pending
disciplinary proceedings
for misconduct. Boqwana challenged his
suspension as an unfair suspension (unfair labour practice) to the
CCMA, and this dispute
was ultimately set down for arbitration on 24
June 2019. The applicant was to be the principal witnesses for the
first respondent
in this arbitration, and attorneys had been
instructed to attend to the matter.
[39]
In addition, the actual disciplinary proceedings against Boqwana took
place in 2019, and
was presided over by an independent chairperson
from Tokiso. The disciplinary hearing concluded on 27 March 2019. The
chairperson,
in a written finding dated 2 May 2019, recommended the
summary dismissal of Boqwana. In short, the reasons given for this
finding
were that Boqwana made allegations of being victimised and
bullied by the applicant when there was no basis for doing so, the
conduct
of Boqwana was a serious and wilful refusal to comply with
reasonable instructions by the applicant and posed a serious and
deliberate
challenge to his authority, that Boqwana was not willing
to work according to the standards laid down by the applicant as CEO,
and that the trust relationship had been completely destroyed. The
written finding was comprehensive, and fully motivated the
conclusions
arrived at.
[40]
The applicant as CEO is not entitled to discharge a senior member of
management, without
this being approved by the council. As such, the
applicant circulated the disciplinary hearing outcome to all the
council members,
and consulted the Human Resources and Remuneration
Committee (‘HRRC’) of the first respondent. The HRRC
endorsed the
findings of the independent chairperson.
[41]
The next step would be for the disciplinary hearing outcome to be
formally tabled before
the council for consideration. The applicant
on numerous occasions tried to get the chairperson, Ganda, to place
this disciplinary
finding on the agenda of a council meeting, without
success. In particular, the applicant was told the agenda for the
meeting on
10 May 2019 was already too long. The applicant tried
again for the meeting on 30 May 2019, and was told that there was an
earlier
resolution that the disciplinary outcome would only be
considered at the next ordinary council meeting, which was only
scheduled
for 24 July 2019. In a telephone conversation with Ganda on
18 June 2019, the applicant tried to convince Ganda to table the
disciplinary
outcome at a special council meeting, but Ganda refused.
It was clear that Boqwana was being protected.
[42]
The protection of Boqwana as aforesaid, has a particular context.
Following the suspension
of Boqwana, it paved the way for the
applicant to in fact receive reports of several incidents of alleged
corruption involving
Boqwana and two council members, being Moroka
and Kwinana. The applicant investigated these allegations, and found
substance in
it. The applicant then formally reported these
irregularities, and commissioned a forensic investigation to be
conducted by a third
party, Nexus. The applicant also reported his
findings in his third quarter fraud and corruption supplementary
report of 29 January
2019 to the risk committee and the council. It
may be added that Nexus advised on 29 May 2019 that the investigation
was 60% complete,
and even at that uncompleted stage, it was apparent
that there was substance in the corruption allegations.
[43]
Because the applicant kept the council appraised of the aforesaid
investigation, individual
council members were fully aware that some
of them were implicated. As a result, the applicant was then targeted
by some individual
council members (Moroka and Kwinana) with the view
of getting him suspended. These actions were fully set out in a
formal grievance
submitted by the applicant to the council on 24
April 2019 to deal with this conduct, and I do not intend to repeat
all of this
in this judgment. But of importance to the current
matter, the applicant specifically, in his grievance, referred to
conduct by
Kwinana, who had stated, in front of other staff, that the
‘
misconduct and insubordination of the CEO
’ will
be dealt with, and she also made several false allegations against
the applicant. The applicant indicated in the grievance
that he was
being intimidated and victimized by Kwinana. The applicant also
referred in his grievance to irregular conduct of Kwinana
relating to
the Soweto City Project. The applicant’s grievance was tabled
at a council meeting on 26 April 2019, but not
considered. To date,
it has not been dealt with.
[44]
In a council meeting held on 10 May 2019, the council secretary,
Tshifhiwa Rasiluma (‘Rasiluma’),
informed the council
that
inter alia
Kwinana was directly implicated in the
investigation into corruption that was ongoing at the time, and
indicated how she was involved.
This was done by disseminating to the
council a draft affidavit by the applicant made as part of the
investigation. It was in fact
resolved that the council should
recommend to the minister that Kwinana be suspended as a member of
the council. Despite this resolution,
Ganda ensured it was never
implemented.
[45]
In contrast to all the above, and at the beginning of April 2019, and
despite being the
subject of pending disciplinary proceedings at the
time (pursuant to which he was ultimately summarily dismissed),
Boqwana lodged
a ‘tip-off’ of his own concerning alleged
fraudulent and corrupt activities at the first respondent. This
tip-off related
to a number of service providers in respect of which
irregularities are alleged. Not all of these issues raised by Boqwana
related
to the applicant. But where the applicant was brought into it
was where allegations were made about ‘false’ reporting

by ‘management’ to the council and of payments made on
projects that did not meet the contractual conditions. It is
also
stated that the CEO appointed himself, without the knowledge of the
council, as acting executive manager of compliance, accreditation
and
regulation, which contravened the principle of segregation of duties.
It was also stated that executive management is ineffective,
and
approved polices were not being implemented.
[46]
The applicant dealt with this tip-off by Boqwana insofar as it
implicated him. He prepared
a comprehensive answering report to the
council, which he tabled on 10 May 2019, which addressed in detail
all the issues raised
by Boqwana. This answering report was provided
to the council members. The applicant also provided a comprehensive
answer to allegations
by Boqwana about impropriety on the Little
Manhattan Project, being the basis of the most serious allegation by
Boqwana referring
to the applicant, so as to demonstrate that there
was no substance the allegation. This second report was also provided
to all
the council members on 27 May 2019. The applicant was given no
feedback on any of these reports submitted by him, and it appears

they were never even considered
[47]
On 18 June 2019, the council members were informed by e-mail by Ganda
of a special council
meeting to be held on 20 June 2019. The agenda
items were reflected as the ‘
defiance of the CEO and CSM
against resolution/instructions of the Council
’ and the
‘
allegations of bullying and harassment made by the Company
secretary against the CEO
’.
[48]
This special meeting then took place on 20 June 2019. It was attended
by all the council
members, save for Higgins, who tendered an
apology. Despite what is reflected in the meeting agenda, it was
indicated when the
meeting commenced that the tip-off report by
Boqwana would be discussed and considered in the meeting, to which
the applicant objected,
as it was not on the agenda. The applicant
also raised that this could not be discussed without considering the
reports he had
submitted in answer thereto. The applicant also
indicated that the disciplinary outcome recommending the dismissal of
Boqwana had
not even been discussed and should also be discussed.
However, it was indicated that the meeting would proceed to consider
the
tip-off by Boqwana only, and the dismissal report of Boqwana
could not be considered because it was not on the agenda. The
applicant
and the CSM was instructed to leave the meeting, because
they were involved. Two other council members, Ximiya and Mxenge,
also
left the meeting, leaving only 6 council members remaining in
attendance, which included Kwinana.
[49]
The Boqwana tip-off was then discussed ‘in camera’ by
these 6 council members,
and a resolution was passed that same day
that the applicant be suspended. This suspension was never discussed
with the HRRC before
it was effected or considered. There was no
indication in the agenda that the applicant’s suspension would
even be considered.
In the end, the reason given for the suspension
had nothing to do with the two items actually reflected on the agenda
of the special
meeting of 20 June 2019, but was squarely only based
on the tip-off report by Boqwana.
[50]
One final factual consideration remains. With the applicant being
suspended, he was also
instructed not to attend the CCMA case of
Boqwana relating to his alleged unfair suspension, which was to take
place on 24 June
2019. The first respondent also summarily terminated
the mandate of the attorneys instructed to attend to the matter on
that date,
on behalf of the first respondent. This caused a state of
affairs that as a matter of common sense would substantially advance
an outcome in favour of Boqwana, and thus facilitate his return to
work.
Was
the suspension valid / lawful?
[51]
The
applicant raised a number of reasons why his suspension should be
considered to be unlawful. One of these reasons must be immediately

disposed of, which the applicant in essence conceded in argument in
Court. The issues as to whether the suspension of the first

respondent was in compliance with its disciplinary code and/or the
applicant was given a fair and proper opportunity to make
representations
prior to suspension is not an issue that should
burden this Court at this stage. These are issues squarely reserved
for determination
by an arbitrator when deciding an unfair labour
practice dispute in terms of the normal dispute resolution processes
under the
LRA.
[31]
This issue
will thus play no role in my deciding whether the applicant’s
suspension was unlawful.
[52]
The second issue raised is that the council did not have the power to
suspend the applicant,
and this could only be done by the minister. I
disagree. The minister must only approve the appointment of a CEO. If
the minister
also had to approve the dismissal of the CEO, the SHA
would in my view have specifically said so. The fact is that the
dismissal
of the CEO as a full time employee of the first respondent
is a matter best considered, and then decided, by the council in
discharging
its functions under the SHA. The Charter, in my view,
specifically gives it this power. I say this because considering the
Charter
provides for the power of the council to discharge senior
management, then surely, even though suspension is not specifically
mentioned,
it must contemplate suspension as well. My view in this
regard is cemented by the fact that suspension is part of the process
that
leads of disciplinary action, is provided for the first
respondent’s disciplinary code, which code the council is
ultimately
responsible in giving effect to. There is accordingly no
substance in the contention that the council did not have the power
to
suspend the applicant.
[53]
The final
challenge by the applicant where it comes to the lawfulness of his
suspension is aimed at an attack on the validity of
the decision to
suspend him in the first place. He has argued that the decision to
suspend him was only competently taken by 5
of the members of an 11
member council, thus making the decision invalid, because it was
inquorate. This would a situation similar
to suspensions in the
public service where the right to suspend is subject to compliance
with a statutory prescribed process, which
is then not followed by an
employer. In such cases, it is now trite that this is an issue that
goes to the very validity of the
suspension itself, and has nothing
to do with considering the fairness thereof. As said in
Manamela
Ida v Department of Co-Operative Governance, Human settlements and
Traditional Affairs Limpopo Province and Another
[32]
:
‘
A suspension would
be unlawful in instances where the right or power of an employer to
effect a suspension is prescribed by specific
regulation and these
regulations are not complied with by the employer.  The
unlawfulness is founded in the employer not complying
with its own
rules. …
the issue of
the lawfulness of the suspension must be based solely on the
provisions of the regulatory provisions themselves, as
defined
therein, and thus only concern the interpretation and application of
the actual regulatory provisions in order to assess
and determine
compliance by the employer.
’
[54]
An example
of relevance to the current matter before me can be found in
Mbatha
v Ehlanzeni District Municipality and Others
[33]
which concerned a delegation of the power to suspend and institute
disciplinary proceedings to the mayor, when this power was not

capable of being so delegated. The Court said:
[34]
‘…
My
considered opinion is that the power to discipline the municipal
manager must reside exclusively in the council. I conclude therefore

that this power to discipline a municipal manager is vested in the
council alone and is not capable of being delegated to an executive

mayor. The purported delegation of disciplinary powers of the council
was consequently unlawful for want of legality. …’
[55]
Another
example is
SA
Municipal Workers Union on behalf of Mathabela v Dr J S Moroka Local
Municipality
[35]
where the Court considered a regulation that a suspension period can
only be for 60 days, and held that an extension of suspension
beyond
that period was invalid, finding as follows in uplifting the
suspension:
[36]
‘
The applicant was
suspended on 23 July 2010 and the enquiry commenced within 60 days
thereof, but it was only on 12 October 2010
that the employer asked
the chairperson of the enquiry to extend the suspension which he did.
Accordingly, the suspension period
of 60 days had expired by the time
the chairperson made this ruling and he could not have been acting in
terms of the powers given
him under clause …’
[56]
Therefore,
and as far as I am concerned, a decision taken at an inquorate
meeting of the first respondent’s council to suspend
the
applicant will attract the consequence of it being invalid. In
Onshelf
Trading Nine (Proprietary) Limited v De Klerk NO and Others
[37]
the Court dealt with a situation where the councillors present at a
council meeting did not constitute a quorum and said:
‘…
the
meeting at which the decision in question was taken did not
constitute a
quorum
and that the decision by the Council was
for that reason invalid. It follows that the decision should be set
aside …’
Similarly, and in
Ngcwase
and Others v Terblanche, NO and Others
[38]
the Court dealt with a meeting of a school board that did not
constitute a quorum and held:
‘…
in view
of the fact that the Court
a quo
correctly held that the
termination of Phaliso’s nominated membership to the
Emadlelweni Combined School Committee was unlawful,
it necessarily
follows that third respondent’s replacement of him was unlawful
and that third respondent’s appointment
as a nominated member
to fourth respondent school board was also unlawful.’
[57]
The
consequences of an inquorate meeting on the validity of a decision
taken at such meeting was specifically considered by the
Labour Court
in the decision
Independent
Municipal and Allied Trade Union and Another v City of Matlosana
Local Municipality and Another
[39]
where it was held:
‘…
the
failure to reach a quorum means that no lawful decisions can be
taken. The council is not properly constituted. Section 35(1)
of the
Structures Act also shows the premium which the legislature places on
the quorum requirement. …’
[58]
Turning to the facts
in casu
, it was common cause that only 6
council members remained in the special meeting on 20 June 2019 to
discuss the applicant’s
suspension and the reasons for it. On
face value, this still constitutes a quorum, being 6 out of 11
members. But the problem comes
in where it concerns Kwinana, as one
of these members. She, in my view, undoubtedly had a horse in the
race. She was the one directly
implicated in the allegations of
bullying, harassment and victimisation raised by the applicant in his
grievance. She was also
directly implicated in the investigation
concerning allegations of corruption, being spearheaded by the
applicant. Good and proper
governance dictated that she should not be
involved in any decision to suspend the applicant, because her
partiality was seriously
in question. She had a lot to gain by the
suspension of the applicant. The fact that she remained in the
meeting and voted on the
suspension was irregular, and contrary to
the provisions of the Charter.
[59]
I believe
that the objectives as defined in the Charter of the first respondent
contemplated that in a situation such as this, a
council member that
is in any manner implicated or has an interest in the subject matter
of a council decision, should not participate
in the decision making
relating to that issue. After all, justice and fair play must not
only be done, but be seem to be done,
in cases such as these. The
Charter, as quoted above, specifically provides for the recusal of
such a council member from decision
making in such cases. In
Blythe
v The Phoenix Foundry, Ltd., Wilson & Muir
[40]
the Court dealt with a situation where a quorum of two directors was
considered sufficient, but these directors would each benefit
from a
decision regarding a pay increase. The Court held:
[41]
‘…
that
a quorum of directors meant a quorum competent to transact and
vote on the business before the board, and therefore that a
resolution
passed at a meeting of three directors, two of whom were
interested in the subject-matter of the resolution, was invalid
.’
[60]
I thus conclude that Kwanini was prohibited from sitting at the
council meeting on 20 June
2019 and bringing out a vote in favour of
suspending the applicant. That being the case, there were only 5
members of the council
entitled to vote on this, and thus the council
meeting was inquorate. Consequently, a valid resolution could not be
adopted to
suspend the applicant, and the decision taken to suspend
him was unlawful.
[61]
The respondents tried to overcome this
difficulty by seeking to rely on clause 1.14.5, referred to above,
which provided that a
decision taken by the council shall not be
invalid just because a person was not entitled to sit as a member of
the council. This
argument is in my view contrived, and without
merit. This provision cannot serve to remedy a meeting that is
inquorate in the first
place. This is evident from clause 1.14.6,
immediately following on the clause relied on by the respondents,
which provides that
a decision shall be authorized if a majority of
members present were entitled to sit as members, and there was a
quorum. It is
in my view clear what clause 1.14.5 is actually aimed
at. It is intended to provide that decisions of the council cannot be
attacked
just because a council member was not competent to sit at
the meeting, but this is always subject to the proviso that there at
least was a proper quorum of other competent members. To ascribe to
the argument of the respondents would make a mockery of the

requirement to have a quorum, which is not only provided for in the
Charter, but specifically prescribed in the SHA itself.
[62]
Added to the above, the manner in which the
special meeting of 20 June 2019 came about and how the suspension of
the applicant even
came to be discussed at that meeting, is
questionable. It remained completely unexplained by the first
respondent why it was necessary
to convene an urgent meeting of the
council to discuss the applicant, on two days’ prior notice,
when 14 days’ notice
is ordinarily required. Considering that
the Charter provides that a departure from this prescribed notice
period requires ‘exceptional
circumstances’, the
respondents should have provided an explanation as to what these
exceptional circumstances were, but
it did not do so. The Charter
also prescribes that the subject matter for discussion at the meeting
should be set out in the agenda.
The agenda in this case specifically
only referred to allegations of refusing to obey council instructions
and bullying of the
secretary as the topics for discussion at the
meeting. There was no mention of the Boqwana tip-off report. But even
more importantly,
there was never any indication that the actual
suspension of the applicant would be discussed. All of these failures
fly directly
in the face of what the Charter requires for valid and
proper decision making by the council. Due to these failures as well,
the
applicant’s suspension must be considered to be unlawful.
[63]
It is also not lost on me that the applicant
had been trying, unsuccessfully, to get the issue of the dismissal of
Boqwana before
the Council since beginning May 2019, despite Boqwana
having been properly charged, disciplined, and an external
disciplinary enquiry
chairperson having recommended his summarily
dismissal (which was decision was also supported by the HRRC), but
where it came to
the applicant, he was swiftly dealt with.
[64]
In sum, I am satisfied that the decision taken by the council on 20
June 2019 was irregular,
unlawful and thus invalid. The agenda of the
meeting on that day, insofar as it concerns the issue of the
suspension of the applicant,
simply did not include the applicant’s
suspension based on the Boqwana tip-off report. The extreme short
notice was not properly
explained, as required. The meeting itself
was inquorate in that of the 6 members present in the meeting, only 5
could competently
vote in favour of suspending the applicant, when at
least 6 votes were needed. Because the decision to suspend the
applicant was
unlawful, the suspension itself was unlawful, and as
such cannot be allowed to stand.
Was
the suspension an occupational detriment?
[65]
In addition
to the above, the applicant has another string to his bow. As touched
on above, the applicant has said that he has been
visited with an
occupational detriment, in that his suspension was motivated by his
disclosure of corruption on the part of members
of the council and
other senior employees of the first respondent. This is a case
founded on the Protected Disclosures Act
[42]
(the ‘PDA’), which provides that ‘
No
employee may be subjected to any
occupational
detriment
by
his or her employer on account, or partly on account, of having made
a protected disclosure’
.
[43]
An enquiry into the application or not of the PDA entails the
following, as enunciated in
TSB
Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey
[44]
as follows:
‘…
the
proper approach to the primary question in this appeal is: first to
determine whether the various disclosures of information
constitute
disclosures as defined in s 1 of the PDA; secondly, to decide if the
disclosures are protected disclosures, as contemplated
in s 1,
read with s 6 of the PDA; and thirdly, whether Dorey was subjected to
an occupational detriment (discipline
and
dismissal) by RCL on account, or partly on account, of having made a
protected disclosure. The last enquiry requires careful
consideration
of the evidence regarding the reason for the dismissal to establish
if the disclosure causally accounted or partly
accounted for the
dismissal.’
The
applicant bears the
onus
in this enquiry.
[45]
[66]
Starting with the concept of a ‘disclosure’, Section
1(1)(i) of the PDA defines
the term 'disclosure' as follows:
‘
Any disclosure of
information regarding any conduct of an employer, or an employee of
that employer, made by any employee who has
reason to believe that
the information concerned shows or tends to show one or more of the
following:
(a)
That
a criminal offence has been committed, is being committed or is
likely to be committed;
(b)
that
a person has failed, is failing or is likely to fail to comply with
any legal obligation to which that person is subject;
(c)
that a miscarriage of justice has occurred, is occurring or is
likely to occur;
(d)
that
the health or safety of an individual has been, is being or is likely
to be endangered;
(e)
that
the environment has been, is being or is likely to be damaged;
(f)
unfair
discrimination as contemplated in the
Promotion of Equality and
Prevention of Unfair Discrimination Act, 2000
(
Act
4 of 2000)
;
or
(g)
that any matter referred to in paragraphs
(a)
to
(f)
has been, is being or is likely to be deliberately concealed.’
[67]
Did the
applicant make such a ‘disclosure’? In my view, indeed
so. After the applicant suspending Boqwana, it opened
the way for
information of corrupt activities to come forward, considering that
Boqwana was in effect in charge of regulation and
compliance. This
information concerned corruption on the part of at least two council
members, including Kwinana, as well as Boqwana
himself. The nature of
these activities were set out in a variety of reports submitted by
the applicant to the council. Having
read these reports, I am
satisfied that it contains sufficient particularity as to why the
information conveyed therein would competently
qualify as a
‘disclosure’ under both sections 1(1)(i)(b) and
1(1)(i)(c) of the PDA. In simple terms, what the information
must be
about in the case of the application of the PDA, is described in
Nxumalo
[46]
as follows:
‘…
Accordingly,
it is only the disclosure of information that either discloses or
tends to disclose forms of criminal or other misconduct
that is the
subject of protection under the PDA.
[68]
Next, would
the disclosure be a protected disclosure? In deciding this, the Court
in
Palace
Group Investments (Pty) Ltd and Another v Mackie
[47]
gave the following guidance:
‘…
not all
disclosures are protected in the sense of protecting the employee
making the disclosure from being subjected to an occupational

detriment by the employer implicated in the disclosure. A protected
disclosure is defined as a disclosure made to the persons/bodies

mentioned in ss 5, 6, 7, 8 and 9 and made in accordance with the
provisions of each of such sections. In terms of s 6, for a
disclosure
to fall within the ambit of a protected disclosure it must
have been made in good faith. It is clear that before other
provisions
of the PDA can come into play, the disclosure allegedly
made must answer to the definition of that term as set out in the
definitions
section …’
[69]
In this
instance, it is common cause that the applicant made the reports
about corrupt activities to the council, as representatives
of his
employer, the first respondent, in the course of discharging the
duties and obligations imposed on him as CEO by the SHA
and the
Charter. Because it is thus a disclosure to his employer, section
6(1) of the PDA finds application. In
John
v Afrox Oxygen Ltd
[48]
the Court said:
‘
In
this matter, the appellant made the disclosure only to her employer
and, as such, in my view, it is only s 6 of the PDA that
is relevant
…’
Having
so held, the Court then concluded:
[49]
‘
In
the circumstances, for the disclosures made by the appellant to
qualify as protected disclosures as stated earlier, the appellant
had
to have reason to believe that the information she disclosed, at the
very least, tended to show that an impropriety has, is
being, or may
be committed, or that the respondent has, is failing, or may in the
future fail to comply with its legal obligation.
Furthermore, that
the appellant acted in good faith when she made the disclosures and
in doing so followed procedures either prescribed
or authorised by
the employer …’
[70]
In
casu
,
there can be little doubt that the applicant had proper reason to
believe that impropriety exists in the conduct of certain council

members and senior management in the first respondent, which in
essence involved corruption. This belief is substantiated by the
fact
that the applicant appointed independent investigators whom even on a
prima
facie
basis confirmed in writing that there was substance to the
applicant’s concerns that he required to be investigated. At
the time when the applicant made these reports, there were no
complaints of disciplinary proceedings or possible action against
him
pending, so it simply cannot be said that he did what he did as a
result of some of other form of ulterior motive or revenge
or
retribution against anyone. As said in
TSB
Sugar supra
:
[50]
‘…
The
bona fides of the disclosure must be assessed at the time it was made
…’
[71]
In
my view, the applicant made the reports out of what he considered to
be his duty under the SHA and the Charter, without any ulterior

motive attached to it.
[51]
Simply put, there was nothing in it for him to make the disclosures,
other than doing what he was legally required to do.
[52]
In this regard, he was actually correct in reporting the impropriety,
as there was substance in it.
[53]
Considering the background of the first respondent being the victim
of extensive past corruption and irregularity, and the applicant

being appointed as CEO to bring matters back in line, he must allowed
to vigorously root out corruption wherever he may find it,
without
fear or favour. This is what he did. He also did not go about it in a
clandestine manner, but properly reported all his
activities and
findings to the council as required by its own processes. When he was
met with harassing and victimizing conduct
by
inter
alia
Kwinana, he raised a proper grievance in terms of the prescribed
process, again highlighting what was legitimate concerns he had.
In
Radebe
and Another v Premier, Free State Province and Others
[54]
the Court gave the following instructive views as to how
bona
fides
can be inferred:
‘…
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.’
The
Court concluded:
[55]
‘
Simply
stated if an employee discloses information in good faith and
reasonably believes that the information disclosed shows or
tends to
show that improprieties were committed or continue to be committed
then the disclosure is one that is protected. The requirement
of
'reason to believe' cannot be equated to personal knowledge of the
information disclosed …’
[72]
The
language used by the applicant in his reports are not indicative of
an employee that has an axe to grind with certain individuals
at the
first respondent, or the first respondent as employer itself. I am
satisfied that the content of the reports made and the
language used
herein is consistent with an employee that is simply highlighting
irregularities and corruption he found, reporting
it to the relevant
authority in the employer, and tasking an investigation of it. In
fact, and in the initial report, the applicant
did not even name the
possible perpetrators. Even in the grievance the applicant submitted,
the applicant did not confrontationally
engage with any individual
concerned that perpetrated what he considered to be unacceptable
conduct towards him. The applicant
always played the facts, and not
the person. His approach was one seeking intervention by the first
respondent as his employer,
and asking that steps be taken to resolve
the obvious and serious difficulties he was experiencing.
[56]
[73]
Therefore,
I am satisfied that the applicant in this instance made protected
disclosures to the first respondent as contemplated
by the PDA. The
only question that remains is whether the applicant was then visited
with an occupational detriment as a result
of the same. There is no
doubt that the applicant’s suspension,
[57]
if there is a proper nexus between that act by the first respondent
and the protected disclosure, would constitute an occupational

detriment. In
TSB
Sugar supra
[58]
the Court dealt with this consideration as follows:
‘…
The
phrase ‘on account of’ means ‘owing to’, ‘by
reason of’ or ‘because of the fact that’.
The
phrase is used to introduce the reason or explanation for something —
for the purposes of the present discussion, the
reason or explanation
for the
occupational detriment. The word ‘partly’
means ‘not completely’, ‘not solely’, ‘not
entirely’
or ‘not fully’. A finding that an
employee was subjected to an occupational detriment
on account of
having made a protected disclosure will be based on a conclusion that
the sole or predominant reason or explanation for the occupational

detriment was the protected disclosure; whereas a finding that an
employee was subjected to an occupational detriment
partly on
account of
having made a protected disclosure will be to the
effect that the protected disclosure was one of more than one reason
for the
occupational detriment
.
Section
3 of the PDA thus casts the net wide. If there is more than one
reason for a dismissal, the PDA will be contravened if any
one of the
reasons for the dismissal is the employee having made a protected
disclosure. The wide scope of protection is consistent
with the
purposes of the PDA which addresses important constitutional values
and injunctions regarding clean government and effective
public
service delivery.’
[74]
The Court
in
Matlosana
Local Municipality supra
[59]
gave the following useful guidance in the conducting the enquiry as
to whether there was a sufficient nexus between the protected

disclosure and the act by the employer against the employee:
‘…
Thus,
what I am required to establish is the 'proximate cause' of the
disciplinary enquiry. It is clear that a disciplinary enquiry
against
an employee need not necessarily be the direct result of a
disclosure. I propose that a useful and practical approach is
to
consider factors such as (i) the timing of the disciplinary enquiry;
(ii) the reasons given by the employer for taking the disciplinary

steps; (iii) the nature of the disclosure; (iv) and the persons
responsible within the employer for taking the decisions to institute

charges. …’
[75]
Applying the above, there are a number of issues that stand out
in
casu
. The first is the whole situation with Boqwana. I accept
that Boqwana was a long standing and senior employee of the first
respondent,
who had a close relationship with certain members of the
council, and who was implicated in corruption in the investigations
pursued
by the applicant. Boqwana was subjected to disciplinary
action, his summary dismissal was recommended by an external
chairperson
and supported by the HRRC. However, it became an
impossible task for the applicant to put this recommendation before
the council
to finally effect such a dismissal. I simply cannot
understand why something so clear and obvious could not have been
dealt with
in any of the several council meetings held since May
2019. The explanation offered in the answering affidavit that some
unknown
procedures were not followed, and thus it could not be
considered, is completely unacceptable. It must be more than pure
coincidence
that this very same person’s purported tip-off then
leads to the suspension of the applicant before the dismissal can be
effected.
[76]
It is highly probable that Boqwana was being protected by members of
the council. But the
applicant did not relent, he pressed the issue,
and it appears that it was at least indicated that the issue of the
disciplinary
report of Boqwana would be discussed at the general
council meeting on 24 July 2019. The only manner to avoid this from
ultimately
happening is to get rid of the applicant, and his
suspension would achieve this objective. My view in this regard is
cemented by
the fact that the applicant was suspended shortly before
the unfair labour practice case of Boqwana about his suspension was
set
down in the CCMA, coupled with the instruction that the applicant
(as the main witness in those proceedings) was not allowed to
attend
the arbitration and the attorneys attending to the matter being
summarily discharged. This is inexplicable conduct on the
part of the
first respondent and in my view directly linked to prevent the
applicant from dealing with unlawful conduct and corruption.
[77]
Similarly, the applicant’s complaints as to corruption on the
part of Kwinana came
before the council on 10 May 2019, and it was
resolved that her suspension from the council be recommended to the
minister. Again,
this resolution was never implemented. The
applicant, considering the diligent manner in which he discharged his
duties to that
point, would no doubt pursue the implementation of
this resolution as well. Again, his suspension would be the easiest
avenue available
to stop this from happening.
[78]
What is ironic is that the corruption reports, the applicant’s
grievance, and the
disciplinary finding relating to Boqwana, were
never dealt with by the council, despite the applicant’s best
efforts to secure
this. But inexplicably, when Boqwana makes a
‘tip-off’ implicating the applicant in alleged
impropriety, considering
that at that point he was a suspended
employee subject to a disciplinary process (which properly led to his
dismissal), an urgent
special council meeting is convened on two
days’ notice to deal with the applicant. This smacks of
mala
fides
. Worse still, the meeting agenda (as discussed above) does
not even provide for the discussion of the Boqwana tip-off and
suspension
of the applicant. And when the Boqwana tip-off is
discussed, the comprehensive answers provided by the applicant are in
essence
ignored. But the icing on the cake must be where the first
respondent in the answering affidavit glibly states that it cannot
consider
the disciplinary outcome report of Boqwana because it was
not listed on the agenda, but the council then considered the tip-off

report by Boqwana without it being on the agenda.
[79]
In the end, the timing of the applicant’s suspension must be
more than simple coincidence.
There is, all considered, no
justifiable reason for his suspension considering: (1) what was on
the agenda for the meeting on 20
June 2019; (2) the tainted and
suspect source (from Boqwana) of the tip off report on which the
first respondent ultimately relied
to the exclusion of the answers
provided by the applicant; and (3) the failure by the first
respondent to provide any reasonable
explanation to justify the
suspension of the applicant. I accept, as I have said before, that
since this suspension was a holding
operation suspension pending a
disciplinary investigation, there is ordinarily no requirement to
provide reason for suspension.
But what makes this matter different
is that the applicant specifically engaged the defence of a protected
disclosure with proper
motivation why this applies in this case, and
this called for proper engagement by the first respondent to
substantiate, with proper
particularity, why this was not so.
[80]
I am
convinced that was it not for the applicant’s investigation
into corruption on the part of Boqwana and certain members
of the
first respondent’s council (such as Kwinana), and reporting on
the same to the council and/or requiring the council
to take action
on it, he would never have been suspended. There is thus a proper
nexus between the protected disclosures by the
applicant, and
occupational detriment he was visited with in the form of his
suspension. The applicant is thus entitled to approach
this Court for
protection under the PDA, and this would include that his suspension
be uplifted.
[60]
Alternative
remedy and prejudice
[81]
The applicant has no alternative remedy available to him in this
instance. He cannot approach
the CCMA or any of the statutory dispute
resolution bodies established under the LRA, where it concerns his
suspension being unlawful,
as such a case has nothing to do with his
rights under the LRA. As I have said above, this matter has nothing
to do with the fairness
of the suspension, which would have been
another fight for another day in the CCMA, if I found that that
applicant’s suspension
was lawful.
[82]
Also, the
nature of occupational detriments effect on employees is an issue
that cries out for urgent intervention by this Court,
especially
where an employee had not been dismissed.
[61]
There is provision in the LRA for an automatic unfair dismissal claim
where an employee is dismissed due to an occupational detriment,
[62]
but this would not apply in this case. There is no other remedy
available to stop the detriment short of dismissal being visited
upon
an employee, other than by way of immediate intervention by this
Court. Insofar as it can be said that the applicant’s
pending
unfair labour practice dispute referred to the CCMA is an alternative
remedy, it can even be said that approaching this
Court is not
competent without such a referral, making the prior referral
necessary for this application.
[63]
[83]
Turning
then to prejudice, I accept that this consideration favours the
applicant. He would be prejudiced in the conduct of his
duties should
he be excluded from the workplace without cause or reason. Also, and
considering the issue of the occupational detriment,
it may well be
in the interest of the first respondent to have him back at work
discharging his statutory duties and protect the
interests of the
first respondent against what is at least on face value clear
impropriety. Also, the longer this suspension endures,
the more
difficult it would be for a person fulfilling the kind of functions
of the applicant to properly and effectively resume
work. The
situation is exacerbated by the fact that the first respondent’s
council let no grass grow under its feet, and
almost instantaneously
appointed a new acting CEO without even seeking the approval of the
minister. The only possible prejudice
to the first respondent is
having the applicant back at work whilst the investigation into the
tip-off by Boqwana is pending. But
as I have said, I believe that
this report by Boqwana is suspect to say the least, and motivated by
ulterior purposes, and should
not serve as a basis to prejudice the
applicant’s return to work. The simple fact is that the
applicant has done a proper
job until now, and he should be allowed
to continue to do so.
[64]
It
is in the interest of the public and the proper statutory functions
the first respondent is meant to discharge, that the applicant’s

suspension be uplifted. As said in
Radebe
supra
:
[65]
‘…
it
appears justified to award the appellants full relief that restores
the status quo ante between them and their employer which
will go a
long way towards addressing the humiliation they suffered arising
from the
occupational detriment they suffered. Such relief is
justified in view of the fac
t that they blew
the whistle on what was at face value irregular conduct by their
employer and fellow employees. The action taken
against them was
precipitate and totally unjustified. The full redress proposed is
enough to express our displeasure at how the
appellants were treated.
It should also send a clear message to other employers that this
court will not hesitate to come to the
aid of employees who blow the
whistle on unlawful and irregular conduct.
’
Conclusion
[84]
In sum, I am satisfied that the applicant has met the requirements
necessary in order for
him to obtain the relief he seeks.  The
applicant has a clear right to the relief he seeks, has no
alternative remedy available
to him, and considerations of prejudice
favour him.  The applicant’s application must thus
succeed.
[85]
This then
only leaves the issue of costs. In terms of Section 162 of the LRA, I
have a wide discretion where it comes to the issue
of costs. Even
though the respondent was not successful, I do consider that this was
a complex matter and the case advanced by
the respondents was at
least arguable, considering that the applicant had to establish
exceptional circumstances. I also consider
that insofar as it may
have been scarred by what happened, the trust relationship between
the parties must be repaired, and mulching
the first respondent with
a costs order will not assist in achieving this objective.
I
am also mindful of the
dictum
of the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[66]
where
it comes to costs awards in employment disputes before this Court,
and I do not consider there to be sufficient reason to
depart from
this. For all these reasons,
I
exercise my discretion as to costs in this matter by making no order
as to costs.
[86]
For all the reasons as set out above, I make the following order:
Order
1.
The application is heard as one of urgency.
2.
The applicant’s suspension by the first respondent on 20 June
2019 is declared
to be unlawful and to constitute an occupational
detriment.
3.
The first respondent is ordered to uplift the applicant’s
suspension and
allow the applicant to resume his duties with
immediate effect from date of this order.
4.
There is no order as to costs.
__________________
S
Snyman
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:          Adv
M J Van As
Instructed
by;                               Docrat

Inc Attorneys
On
behalf of the Respondents:     Adv T S Madima SC
together with Adv I C Mokwena
Instructed
by:
Knowles

Husain Lindsay Attorneys
[1]
Act 66 of 1995 (as amended).
[2]
See for example
Zondo
and another v Uthukela District Municipality and Another
(2015) 36 ILJ 502 (LC) at para 45;
SA
Municipal Workers Union on behalf of Members v Kopanong Local
Municipality
(2014) 35 ILJ 1378 (LC) at paras 32 – 33;
Madzonga
v
Mobile Telephone Networks (Pty) Ltd
[2016] JOL 37300
(LC)
at
para 63;
Manamela
Ida v Department of Co-operative Governance, Human Settlements and
Traditional Affairs, Limpopo Province and Another
(J
1886/2013) [2013] ZALCJHB 225 (5 September 2013) at para 53
[3]
Gcaba v
Minister for Safety and Security and Others
(2010)
31
ILJ
296 (CC)
at paras 59 – 60;
ADT
Security (Pty) Ltd v National Security and Unqualified Workers Union
and Others
(2015) 36 ILJ 152 (LAC) at paras 30 and 32;
Hendricks
v Overstrand Municipality and Another
(2015) 36 ILJ 163 (LAC) at para 27.
[4]
(2011) 32 ILJ 112 (LAC) at para 54.  See also
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
(2012) 33 ILJ 2033 (LAC) at para 46;
Food
and Allied Workers Union and Others v Premier Foods Ltd t/a Blue
Ribbon Salt River
(2013) 34 ILJ 1171 (LC) at para 15;
Uthukela
District Municipality
(
supra
)
at para 38.
[5]
Setlogelo
v Setlogelo
1914
AD 221
at 227;
V
& A Waterfront Properties (Pty) Ltd and Another v Helicopter and
Marine Services (Pty) Ltd and Others
2006
(1) SA 252
(SCA)
at para 20;
Mere
v Tswaing Local Municipality and Another
(2015) 36 ILJ 3094 (LC) at para 4.
[6]
(2010)
31 ILJ 296
(CC) at para 74.
[7]
Section 157(1) reads: ‘
Subject
to the Constitution and section 173, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction
in
respect of all matters that elsewhere in terms of this Act or in
terms of any other law are to be determined by the Labour
Court
’.
[8]
Section 158(1) reads: ‘
(1)
The Labour Court may (a) make any appropriate order, including (i)
the grant of urgent interim relief (ii) an interdict; (iii)
an order
directing the performance of any particular act which order, when
implemented, will remedy a wrong and give effect to
the primary
objects of this Act; (iv) a declaratory order ….
’
[9]
Id at para 54. See also
Gradwell
(
supra
)
at para 46;
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
(2010)
31 ILJ 112 (LC) at para 18;
Uthukela
District Municipality
(
supra
)
at para 17.
[10]
(2009)
30
ILJ
1539 (SCA)
at para 52. See also
SA
Local Government Bargaining Council v Ally NO and Another
(2016) 37 ILJ 223 (LC) at paras 40 and 42.
[11]
(2010) 31 ILJ 112 (LC) at para 18.
[12]
(2016) 37 ILJ 2840 (LC) at para 21. See also
Maqubela
v SA Graduates Development Association and Others
(2014)
35 ILJ 2479 (LC) at para 32;
Transport
and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others
(2015) 36
ILJ
2148 (LC) at para 11.
[13]
Id at para 23.  See also
Tshwaedi
v Greater Louis Trichardt Transitional Council
[2000]
4 BLLR 469
(LC) at para 11
[14]
Northam
Platinum
(
supra
)
at para 24;
IL
& B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and another;
Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another
1981
(4) SA 108
(C)
at 113D-114C.
[15]
See
Golding
v HCI Managerial Services (Pty) Ltd and others
(2015) 36 ILJ 1098 (LC) at para 24;
National
Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum
Ltd and Western Platinum Ltd and Another
(2014) 35
ILJ
486 (LC) at para 50;
Association
of Mineworkers and Construction Union v Lonmin Platinum (comprising
Eastern Platinum Ltd and Western Platinum Ltd)
and Others
(2014) 35
ILJ
3097 (LC) at paras 30-44.
[16]
See
University
of the Western Cape Academic Staff Union and Others v University of
the Western Cape
(1999) 20 ILJ 1300 (LC) at para 15.
[17]
Northam
Platinum
(
supra
)
at para 26.
[18]
See
Mere
(
supra
)
at paras 2 and 35.
[19]
(2015) 36 ILJ 1341 (LC).
[20]
Id at paras 28 – 29.
[21]
(2014)
35 ILJ 2479 (LC) at para 35.
[22]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E 635C. See also
Jooste
v Staatspresident en Andere
1988
(4) SA 224 (A)
at 259C – 263D;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
at paras 26 – 27;
Molapo
Technology (Pty) Ltd v Schreuder and Others
(2002) 23 ILJ 2031 (LAC) at para 38;
Geyser
v MEC for Transport, Kwazulu Natal
(2001) 22 ILJ 440 (LC) at para 32;
Denel
Informatics Staff Association and Another v Denel Informatics (Pty)
Ltd
(1999) 20 ILJ 137 (LC) at para 26.
[23]
2009 (3) SA 187
(W) at para 19.
[24]
(2016) 37 ILJ 902 (LAC) at para 16.
[25]
(2013)
34
ILJ
311 (LAC)
at para 12.
[26]
This report was the reason given for the applicant’s
suspension.
[27]
Compare
Hudson
and Another v SA Airways SOC Ltd
(2015)
36 ILJ 2574 (LAC) at paras 10 – 11.
[28]
2005
(2) SA 359 (CC)
at para 53.
[29]
Act 16 of 2008.
[30]
Act 1 of 1999. See also section 7(2) of the SHA which makes the PFMA
applicable to the first respondent.
[31]
See the discussion above.
[32]
(J1886/2013) [2013] ZALCJHB 225 (5 September 2013) at para 20. See
also
Matola
(
supra
)
at para 28;
Biyase
v Sisonke District Municipality and Another
(2012)
33 ILJ 598 (LC) at para 20;
Lebu
v Maquassi Hills Local Municipality and Others (2)
(2012) 33 ILJ 653 (LC) at para 17.
[33]
(2008) 29 ILJ 1029 (LC)
[34]
Id at para 22
[35]
(2011) 32 ILJ 2000 (LC).
[36]
Id at para 9. See also
Nyathi
v Special Investigating Unit
(2011) 32 ILJ 2991 (LC) at para 27;
Solidarity
on behalf of Barkhuizen v Laerskool Schweizer-Reneke and Others
(2019) 40 ILJ 1320 (LC) at paras 27 – 28.
[37]
[1997] 1 All SA 682
(W) at 689. See also
Transcash
SWD (Pty) Ltd v Smith
[1994] 1 All SA 163 (C).
[38]
[1977] 4 All SA 214
(A) at 221.
[39]
(2014)
35 ILJ 2459 (LC) at para 58.
[40]
1922
WLD 87.
[41]
Id at 92.
[42]
Act 26 of 2000.
[43]
See section 3 of the PDA.
[44]
(2019)
40 ILJ 1224 (LAC) at para 56. See also
Nxumalo
v Minister of Correctional Services and Others
(2016)
37 ILJ 177 (LC) at para 14.
[45]
Nxumalo
(
supra
)
at para 16.
[46]
(
supra
)
at para 16.  In
Lowies
v University of Johannesburg
(2013) 34 ILJ 3232 (LC) at para 58 the Court described qualifying
information for the purposes of the PDA as ‘
corrupt
or fraudulent activities or misuse of property or mismanagement of
funds …
’.
See also
Communication
Workers Union v Mobile Telephone Networks (Pty) Ltd
(2003)
24
ILJ
1670 (LC)
at
para
21
.
[47]
(2014) 35 ILJ 973 (LAC) at para 15.
[48]
(2018)
39 ILJ 1278 (LAC) at para 22. See also para 24 of the judgment.
[49]
Id at para 25. The Court was referring to section 6(1) of the PDA,
which reads: ‘
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
’.
[50]
Id at para 63.
[51]
See
SA
Municipal Workers Union National Fund v Arbuthnot
2014)
35 ILJ 2434 (LAC) at para 23
[52]
Compare
Communication
Workers Union v Mobile Telephone Networks (Pty) Ltd
(2003)
24
ILJ
1670 (LC)
at
para
21
.
[53]
Compare
TSB
Sugar
(
supra
)
at para 102.
[54]
(2012)
33 ILJ 2353 (LAC) at para 35.
[55]
Id at para 36.
[56]
Compare
Motingoe
v Head of the Department: Northern Cape Department of Infrastructure
and Public Works and Another
(C373/2014) [2014] ZALCCT 71 (12 December 2014) at paras 33 –
34.
[57]
In
Nxele
v National Commissioner: Department of Correctional Services and
Others
(2018)
39
ILJ 1799 (LC) at para 25, the Court said: ‘…
Occupational
detriment
,
in relation to an employee or a worker, means, inter alia, being
subjected to any disciplinary action or being dismissed, suspended,

demoted, harassed or intimidated
’.
See also
Radebe
(
supra
)
at para 77.
[58]
Id at paras 94 – 95. See also
Lowies
(
supra
)
at para 51
[59]
Id at para 77. The Court was dealing with a pending disciplinary
enquiry.
[60]
See section 4(1) of the PDA which reads: ‘
Any
employee who has been subjected, is subject or may be subjected, to
an occupational detriment in breach of section 3, may-
(a)
approach
any court having jurisdiction, including the Labour Court
established by section 151 of the Labour Relations Act, 1995
(
Act
No 66 of 1995)
,
for appropriate relief
’.
[61]
Motingoe
v Head of the Department, Northern Cape Department of Roads and
Public Works and Others
(2014) 35 ILJ 2492 (LC) at para 31;
Nowalaza
and Others v Office of the Chief Justice and Another
[2017] JOL 38064
(LC) at para 49;
Independent
Municipal and Allied Trade Union obo Ngxila-Radebe v Ekurhuleni
Metropolitan Municipality and Another
(J1029/2010)
[2010] ZALC 289
(1 July 2010) at paras 44 – 45.
[62]
See section 187(1)(h) of the LRA.
[63]
See
Van
Alphen v Rheinmetall Denel Munition (Pty) Ltd
(2013) 34 ILJ 3314 (LC) at para 47.
[64]
Compare
Theron
v Minister of Correctional Services and Another
[2007] ZALC 95
;
[2008] 5 BLLR 458
(LC) at paras 36 – 41.
[65]
Id at para 41
[66]
(2018) 39 ILJ 523 (CC) at para 25.