IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2025 -055130
In the matter between:
KARABO MOKALE RAMELA Applicant
and
SATHS CO OPER (N.O) First Respondent
JONT Y TSHIPA (N.O) Second Respondent
THE RO BBEN ISLAND MUSEUM Third Respondent
THE MINISTER OF SPORTS, ARTS AND
CULTURE Fourth Respondent
Heard on: 25 April 2025
Delivered Electronically on: 05 May 2025
JUDGMENT
___________________________________________________________________
LEKHULENI J
Introduction
[1] This is an application brought on an urgent basis in which the applicant seeks
protection in terms of section 4 of the Protected Disclosures Act 26 of 2000 ('the
PDA'). The applicant seeks an order that the court interdict, in the interim, the first to
the third respondent from committing any conduct that causes occupational
detriment to the applicant. In addition, the applicant seeks an order that the court
direct the first and/or the fourth respondents to effect remedial action as enjoined by
the PDA as a mended. The first to the third respondents opposed the applicant's
application. The fourth respondent did not take part in this application. Instead, he
filed a notice to abide by the decision of this Court.
The Parties
[2] The applicant was employed as the Chief Financial Officer ('CFO') of Robben
Island Museum ('RIM ’), the third respondent in this matter. He is currently under
precautionary suspension. The first respondent is Saths Cooper, the chairperson of
the RIM Council or board. The second respondent is Johannes Tshipa employed as
the acting Chief Executive Officer of RIM. Collectively, Mr Tshipa and Mr Cooper are
the applicant's employers and designated as such for any protected disclosures in
terms of the PDA emanatin g from employees such as the applicant. The third
respondent is RIM, a juristic entity and public company incorporated in accordance
with the Companies Act of South Africa, whose offices are located at the Nelson
Mandela Gateway and Clock Tower Building in the V & A Waterfront precinct, Cape
Town.
The Applicant ’s Case
[3] The applicant was initially employed as CFO of RIM during December 2022
on a short -term contract for six months following the departure of the previous CFO,
who resigned suddenly. When the position of CFO was advertised, the applicant
availed himself for t he position and was interviewed by a panel which included the
RIM Council members who bear the overall responsibility and accountability for all
RIM's operational and governance issues alongside the chairperson of the Council of
RIM. The applicant was succ essful in his application and was formally appointed as
the CFO of RIM for a fixed term contract of five years from 01 June 2023.
[4] His appointment coincided with the formulation and execution of a turnaround
strategy for which his primary role as the CFO was critical in the implementation of
such a strategy . According to the applicant , the turnaround strategy with the
organi sational design , development and transform ation process at the centre had the
following objectives : stabilisation of the entity from going concern issues and
reversing the looming retrenchment process. Ensuring that RIM's operations are
sustainable from a financial and non -financial perspective. Restoration of and the
upholding of the financial integrity of RIM.
[5] The applicant pointed out that at the initial council meeting which he attended
following his acting appointment in January 2023, RIM received a letter from the
National Treasury reflecting the outcome of an applica tion that RIM had submitted to
the treasury to condone the irregular procurement of a boat estimated at R90 million
incurred in the financial year 2019/2020 as result of evaluating a bid without the
application of the 90/10 preference point system. Nationa l Treasury declined RIM's
condonation application mainly because RIM did not conduct a determination test or
investigation as prescribed by the National Treasury. The determination test is an
internal investigative report presenting findings on irregular, fruitless and wasteful
expenditure and proposes recommendations for the Council to consider and pass a
resolution thereon.
[6] Pursuant thereto, RIM established a Fraud, Risk and Loss Control Committee
(‘the FRLC Committee ’) to receive the determination test and become the
management and governance structure to deal with matters relating to fraud, l oss
control and risk. The CFO, the applicant herein, was part of the FRLC Committee.
The FLRC Committee requested a senior risk a nd performance manager to prepare
the determination test report for its consideration and recommendation to the Council
of RIM. The report was prepared and finally tabled for recommendation by the RIM
Council.
[7] The Council noted various material deficiencies with the report and
recommended that the report be returned to the committee. It furthermore resolved
that the CFO, the applicant herein, should step in to compile the revised report for
consideration by the Council. Following the Council's resolution, the applicant
gathered more information through the finance team based on payments previously
made to suppliers associated with the boat procurement and completed the revision
of the report. The report was ultim ately tabled with the RIM Council. On 1 August
2023, the Council endorsed the report and furthermore resolved that consequence
management be implemented on individuals mentioned in the determination test
report and still within the employment of RIM.
[8] According to the applicant, the individual staff members implicated were in
senior managerial positions. As a result, senior managers were placed on
precautionary suspension in August 2023, and RIM conducted the ir disciplinary
hearings in January and F ebruary 2024. The applicant served as a key witness to
the disciplinary actions that flowed from the consequences management which the
RIM Council sanctioned.
[9] The applicant notes that the determination test report was also preceded by
two forensic in vestigation reports conducted in 2019/2020 commissioned by the
National Department of Sports, Arts and Culture and the erstwhile RIM Council. That
investigation by Morar Incorporated , found thousands of cases of irregular, fruitless
and wasteful expenditure in RIM. However, in compiling the determination test, the
applicant averred that he did not have access, nor did he have a sight of the prior
forensic investigation reports. Therefo re, the security risks associated with his role in
this process, coupled with the historical profile of the organisation, raised serious
security concerns for him.
[10] The applicant asserted that given the security situation in South Africa today,
he th ought it prudent to be proactive in deposing an affidavit at the South African
Police Services to ensure that precautionary steps are taken by the authorities to
make certain he executes his duties without any fear of harm or intimidation. On 18
December 2 024, he deposed to an affidavit after noting several concerning incidents
and occupational hazards in his endeavours to clean up mismanagement and
corruption within RIM. On 4 February 2025, given the events of that time, he decided
to consult his counsel o n the possibility of bringing an application in terms of the
PDA. According to the applicant, on the same day, he instructed his legal counsel to
assist him in preparing an affidavit for his disclosure to the fourth respondent about
the transgressions he u ncovered in RIM.
[11] On 14 February 2024, he deposed to a supplementary affidavit wherein he
made the alleged disclosure to the Minister of Sports, Arts and Culture. In that
affidavit, he disclosed alleged impropriety at RIM. The applicant complained , among
others, of tickets alleged fraud reported in April 2024 in RIM. The applicant stated
that ticket money meant for RIM was being diverted and siphoned by complicit RIM
employees to different accounts. Pursuant thereto, SNG Grant Thornton was
appointed to investigate the matter . The investigation was on the alleged fraudulent
incident relating to the reusing and rescheduling tickets on the ticket system. The
investigation report by SNG Grant Thornton found that the scanning and reusing of
tickets was linked to 1,982 tickets, res ulting in a revenue loss for RIM of
R752,860.38.
[12] The applicant reported that due to the state of the ticketing system, there is a
high possibility of RIM employees being complicit in illicit activities in the form of
bypassing system controls and exp loiting loopholes for personal or mutual gain with
external parties such as tour operators. The applicant also reported (disclosed) to
the Minister o n forensic investigation about private tours. In this regard, the applicant
stated that payments of bookings made by private tours were deposited in different
bank accounts and not that of RIM. According to the applicant, the investigation of
this fraudulent conduct established that su fficient evidence exists to substantiate the
fraud allegations to which consequence management was recommended.
[13] In his alleged disclosure, the applicant also reported poor management and
collusion within RIM on boat operations to the fourth responde nt. He stated that in
2023, RIM appointed a service provider, Africa Ferry, to assess the ferry operations
at RIM in the following areas: Marine assets (boats) , Marine employees (crew), and
Ferry -related matters, including maintenance and technical issues. According to the
applicant, the report revealed and re -emphasise d poor maintenance and lack of care
for the RIM boats. Following much deliberation of the report at the RIM Council
meeting, the Council resolved to seek a second opinion on the report from t he South
African Navy. As such, the report was never implemented as the Council did not
adopt it.
[14] The applicant asserted in his alleged disclosure that he noted highly
suspicious and collusive behaviour between Falcon Marine and RIM management
staff in ferries and marketing tourism. This began with the arrival of Falcon Marine's
boat, Madiba 1, in October 2023. The arrival of Falcon Marine's boat was at a period
leading to the inaugural RIM Memorial Run in 2023. At that time, the Sikh ululekile, a
ferry boat for RIM, had technical breakdowns. The Acting COO, the senior manager
of ferries, insisted that no RIM boat should be used in the Inaugural Memorial Run
and that an outsourced boat, Madiba 1, would replace the absent RIM boat.
[15] In his report to the Minister, the applicant asserted that he objected to this by
addressing it with his CEO, who engaged the COO privately to request the Navy to
deploy its engineers to repair the RIM boat on time for the event, which they
successfully executed. According to the applicant, since then, there has been more
undue pressure on him to allow the appointment of Madiba 1 onto the panel of
outsourced boats. As a result of the alleged disclosure to the fourth respondent of
alleged malfeasance at RI M, the applicant implored the court to grant the relief
sought in the notice of motion.
The Respondents’ Case
[16] The respondents opposed the applicant's application and asserted that the
applicant did not establish that he made a disclosure and that such disclosure
amounts to a protected one. The respondents averred that the applicant failed to
place both primary and secondary facts in his affidavit to establish a cause of action
and to establish urgency. The respondents pointed out that the information in the
affidavit and supplementary affidavit (the alleged disclosure made to the Minister) do
not meet the definition of a protected disclosure in the PDA. According to the
respondents, the information was already in the public domain and subject to
external investigation. The respondents also posit that the information was alr eady
known to RIM. In the respondents' view, informing anyone about events or incidents
that RIM is already aware of or that are contained in reports RIM commissioned ,
cannot be a disclosure as contemplated in the PDA.
[17] The respondents asserted that on 12 February 2025, RIM addressed a letter
titled notice of intention to suspend. The notice recorded that the purpose of the
letter was to inform the applicant that RIM was considering placing him on
precautionary suspension. Furthermore, the notice stat ed that an investigation was
being conducted on the allegations of serious misconduct against the applicant. The
allegations against the applicant, among others, pertained to fraudulent
misrepresentation of the applicant's professional credentials. The not ice also alleged
that the applicant is not a chartered accountant in good standing registered with the
South African Institute of Chartered Accountants (‘SAICA ’) in that the applicant last
held the designation in 2017 despite listing such credentials in official documents.
[18] The notice also informed the applicant that it was alleged that between 6
January 2025 and 7 February 2025, he was erratically not physi cally present at work
without his line manager's express consent to work remotely or otherwise. While the
recommendations for why the applicant should not be suspended were due on 14
February 2025, on 12 February 2025 at 18h21, the applicant asked that the deadline
for him to deliver his representations on why he should not be suspended should be
extended to 21 February 2025. His request for an extension as requested was
refused. Notwithstanding, RIM was willing to give the applicant an extension until
Tuesday, 18 February 2025, at 08h30 to file his representations. According to the
respondents, it is apparent that the applicant requested this extension because the
applicant was going to use the 12, 13, and 14 February 2025 to prepare the
supplement ary affidavit that he sent to the Minister as an alleged disclosure in terms
of the PDA.
[19] In the respondents ’ opinion, this makes it plain that the alleged protected
disclosure is nothing but a clear strategy by the applicant to avoid the possible
suspension and any disciplinary hearing that may have followed. The respondents
asserted that in the written representations, the applicant attempts to hide under the
blanket of the protected disclosure to say that he should not be suspended and all
discipli nary actions against him should be stopped. In the respondents’ view, the
application is nothing other than an attempt by the applicant to achieve this purpose.
[20] The respondents further stated that topics covered by the applicant in his
alleged disclosure to the Minister, particularly on the boat procurement expenditure,
were known not only by the executive of RIM but also to the public due to being in
the media. T he respondents opined that SNG Grant Tho rnton investigated the
alleged fraud in ticketing. As such, it was not a disclosure as contemplated in the
PDA. The respondents asserted that all the alleged disclosures that the applicant
made were known to them, an d some investigations are underway. As a result, there
is no disclosure as contemplated by the PDA. The respondent s contended that the
information disclosed to the Minister was part of ongoing external investigations and
had already been addressed in media reports. The information was already in the
public domain. It was made in an attempt to avoid disciplinary proceedings. The
respondent s implored the court to dismiss this application with costs.
Principal submissions by the parties
[21] Mr Alcock, the applicant's counsel, submitted that the applicant, even though
already under siege, relied on the PDA giving him a clear right. Counsel asserted
that there is simply no limitation placed on this right. The trigger is only a suspicion of
criminality. Counsel argued that from the tenor of the PDA, what is needed is simply
an apprehension and the conduct does not necessarily have to commence.
[22] In counsel's view, the drafters' intention here was to provide for the negative
sanctioning of n egligent acts in both private and public entities. In augmenting his
argument, Mr Alcock submitted that the PDA specifically requires the disclosure of
any information and, therefore, does not exclude information purely on the basis that
it is already in the public domain or known to key functionaries, as the respondents
suggest. According to counsel, the fact that the applicant is sitting at home instead of
fulfilling his obligations in terms of his employment contract harms his dignity and
professional reputation.
[23] Counsel asserted that there is a real threat that the applicant's professional
standing could be decimated, thus leading to the same occupational detriment the
Act seeks to discourage. Not to mention the very real possibility o f a loss of income
and future employability. Mr Alcock contended that a valid case for the order
requested in the notice of motion has been established. He earnestly urged the court
to grant the relief sought in the notice of motion.
[24] On the other hand, Mr Mndebele, the counsel for the respondents, impugned
the urgency with which this application was brought. Counsel argued that the
applicant does not even begin to state why this matter is urgent and why he will not
obtain substantial r edress at a hearing in due course . According to Mr Mndebele, it is
evident that the applicant seeks to halt the disciplinary hearing that is scheduled to
commence on 7 April 2025. It was the counsel's submission that the disciplinary
process in itself is n ot a harm to the applicant . According to counsel, no employee
has the right not to be disciplined without demonstrating that the disciplinary process
is meritless, as no one knows the outcome of the d isciplinary process.
[25] On the merits, Mr Mndebele arg ued that for an occupational detriment to
exist, there must have been a protected disclosure made in good faith. In counsel's
view, none of these factors are present in this case. Mr Mndebele asserted that the
reading of the affidavits deposed to by the ap plicant and transmitted to the Minister
do not fit the rubric set by the PDA. In the counsel's view, the application doesn't
specify the disclosure. The affidavit and the supplementary affidavit transmitted to
the Minister on 14 February 2025 do not even a llow for the extrapolation of the
disclosure.
[26] At best, counsel argued that the affidavits amount to a narration of facts that
have occurred. In expanding his argument, Mr Mndebele pointed out that before
invoking the protection afforded by the PDA to employees in terms of section 6, the
first hurdle t hat must be crossed is establishing that a disclosure has been made. In
counsel's view, the applicant has not passed this hurdle. Mr Mndebele submitted that
all the information that the applicant allegedly disclosed in the affidavit and
supplementary affid avit is information that is already within the knowledge of RIM or
the RIM Council and, in some instances, even the public at large. Counsel implored
the court to dismiss the applicant's case with costs.
Issues in dispute
[27] Pursuant to the discussion set out above, this court, in my view, is enjoined to
determine the following four disputed issues:
(a) Is the application urgent?
(b) Did the applicant make a protected disclosure envisaged in the PDA?
(c) If so, whether such protected disclosure was made in good faith, or was it a
stratagem to avoid disciplinary proceedings?
(d) Whether the applicant has been subjected to an occupational detriment?
Discussion
[28] For completeness and diligence, I will consider the disputed issues cited
above sequentially .
Urgency
[29] The legal principles applicable to the question of urgency are well -established
in our law . Urgency in applications involves mainly the abridgement of times
prescribed by the rules and, secondarily, the departure from established filing and
sitting times of the court.1 Rule 6(12) of the Uniform Rules of Court confers courts
with a wide discretion to decide whether an application justifies enrolment on the
urgent court roll based on the facts and circumstances of each case.2 An application
is urgent when an applicant cannot obtain substantial redress in due course.3 The
degree of departure from the modes of service and time frame in the U niform Rules
1 See Rule 6(12) (a) and (b) of the Uniform Rules.
2 Mogalakwena Local Municipality v Provincial Executive Council, Limpopo [2014] 4 AII 67 (GP) para
63; Caledon Street Restaurants CC v D’ Aviera 1998 JDR 0116 (SE) at 8.
3 Dlamini v City Manager of the City of Ekurhuleni Metropolitan Municipality [2023] ZAGPJHC 147
para 27.
must be commensurate with the urgency in each case.4 An applicant is not allowed
to create its own urgency.5
[30] In the present matter, I have considered the reasons and circumstances
advanced by the applicant for bringing this application on an urgent basis, and I am
of the opinion that they are deficient and fall short of the threshold set out in Rule
6(12) of the Uniform Rules. This conclusion is borne out by the following reasons:
The applicant averred in his founding affidavit that on 18 December 2024, out of
concern for his safety given his role as a functionary of the third responde nt, he
deposed to an affidavit after noting several concerning incidents and occupational
hazards of his endeavours to clean up mismanagement and corruption within RIM.
At the time of his deposition, he was assisted by legal counsel, as he had come to
unde rstand that his aversion to the wasteful use of taxpayer funds, would likely be
met with considerable resistance.
[31] Subsequent thereto, on 4 February 2025, given the events up to that time, he
consulted his legal counsel on the possibility of bringing an application in terms of
the PDA. On the same day, the applicant instructed his counsel to assist him in
preparing an affidavit for his alleged protected disclosure to the fourth respondent.
On 25 March 2025, the applicant's counsel addressed a letter a nd threatened to
institute an urgent application against the respondents if the respondents did not
take steps to address the applicant's personal safety concerns following his alleged
protected disclosure to the Minister.
[32] Notwithstanding, the applicant did not institute the alleged application.
Notably, the applicant was suspended on 27 February 2025. The applicant did not
launch the intended urgent application more than a month after his suspension. All
indications are tha t the urgent application was triggered by a notice delivered on 15
April 2025 from the second respondent stating his intention to bring disciplinary
proceedings against the applicant. Clearly, the applicant waited for two months and
only brought this appli cation on 22 April 2025 on an urgent basis.
4 Republikeinse Publikasie (Edms) Bpk v Afrikaanse Pers Publikasie (edms) Bpk 1972 (1) SA 773 (A)
at 782A -G.
5 Venter v El s 2024 (4) SA 305 (WCC) par a 19.
[33] In my view, the urgency with which this application was brought was entirely
self-created. It is apparent that the primary rationale for the applicant's submission of
this application on an urgent basis is to circumvent the disciplinary proceedings that
have been instituted by the respondent s, which are scheduled to take place on 7
May 2025. This cause of act ion may be perceived as an attempt to delay or disrupt
the necessary consequence management and accountability process. I must stress
that the Labour Court has jurisdiction to interdict any unfair conduct including
disciplinary action. However, such an int ervention should be exercised in exceptional
cases .6
[34] Demonstrably, the applicant herein is trying to thwart the right of the third
respondent to discipline him. As I see it, even an employee who has made a
protected disclosure is not immune from being disciplined. To ensure that employers
retain the right to implement disciplinary measures against employees who have
made protected disclosures under the PDA, significant amendm ents were made to
the Labour Relations Act 66 of 1995 (‘LRA’) in 2015. These amendments were
enacted through Section 32 of the Labour Relations Amendment Act 6 of 2014,
which introduced sections 188A(11) and (12) into the framework of the LRA. This
legisla tive change underscores the balance between protecting employee rights and
maintaining employer oversight in the workplace.
[35] Section 188A(11) of the LRA reinforces the protection offered by the PDA to
whistleblowers by providing that if an employee a lleges, in good faith, that holding a
disciplinary inquiry contravenes the PDA, the employee or employer may require that
an arbitrator conduct such a disciplinary inquiry. This section was introduced to
protect an employee who has, in good faith, made a p rotected disclosure and feels
that a disciplinary hearing that the employer is embarking on is an occupational
detriment.
[36] The applicant w as required by Rule 6(12)(b) of the Uniform Rules of Court to
set forth explicitly in his founding affidavit the circumstances which he averred
6 Booysen v Minister of Safety and Security [2011] 1 BLLR 83 (LAC) para 36.
rendered this matter urgent and the reasons why he claim s that he would not be
afforded substantial redress at a hearing in due course.7 In summa ry, the applicant
has failed to provide a full explanation, let alone a reasonable explanation, for his
delay in instituting this application. The urgency asserted by the applicant is entirely
a self -created urgency.8 There is no justification for the applicant’ s failure to bring
this application earlier.
[37] Accordingly, the applicant ’s application must ordinarily fail due to his decision
to wait from December 2024 and only approach this court in April 2025 on an u rgent
basis for the relief sought in the notice of motion.
[38] Ordinarily, the above finding on urgency would lead to the applicant's
application being struck off the roll. However, I will address the remaining issues in
dispute for completeness and certainty.
Did the applicant make a protected disclosure envisaged i n the PDA?
[39] The PDA regulates the protected disclosures. According to the Act,
‘disclosure ’ means ‘any disclosure of information regarding any conduct of
an employer , or of an employee or of a worker of that employer , made by
any employee or worker 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 individua l has been, is being or is likely to be
endangered;
(e) that the environment has been, is being or is likely to be damaged;
7 Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers)
1977 (4) SA 135 (W) at 137E -G.
8 Big Blue Marketing CC v King Sabata Dalindyebo Local Municipality 2017 JDR 0302 (ECM) para 10;
Windsor Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd 2013 J DR 1989 (ECM) para 9.
(f) unfair discrimination as contemplated in Chapter II of the Employment
Equity Act, 1998 (Act No. 55 of 1998), or 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 .’
[40] The preamble of the PDA provides the mechanisms or procedures in terms of
which employees or workers may, without fear of reprisal, disclose information
relating to suspected or alleged criminal or other irregular conduct by their employers
whether in the private or public sector. Every employer and employee have a
responsibility to disclose criminal and any other irregular conduct in the workplace.
The preamble of the PDA notes that every employer has a responsibility to take all
necessary steps to ensure that employees who disclose such information are
protected from any reprisal because of such disclosure.
[41] The protection granted to an employee making a protected disclosure is set
out in section 3 of the PDA. In terms of this section , no employee may be subjected
to any occupational detriment by his or her employer on account or partly on
account of having made a protective disclosure. It is, however, also clear from the
provisions of the PDA that the protection afforded by the PDA is not unconditional
and that certain requirements must be met before an employee may be entitled to
the protection afforded by the PDA.9 The protection afforded to an employee must,
therefore, be understood by reference to the definition sections, which def ine what is
a disclosure and what constitutes a protected disclosure. These sections should also
be understood against the general purpose of the PDA, which is to encourage a
culture of whistleblowing. The fostering of a culture of disclosure is a constitu tional
imperative as it is at the heart of the fundamental principles aimed at the
achievement of a just society based on democratic values.10
[42] Before invoking the protection afforded by the PDA to employees, the
employee must first establish that a d isclosure has been made. To enjoy protection,
the employee who made the disclosure must bona fide have believed that the
9 Randles v Chemical Specialities Ltd [2011] JOL 26803 (LC) para 21.
10 Potgieter v Tubatse Ferrochrome (2014) 35 ILJ 2419 (LAC) para 14.
information disclosed was true. The employee must prove that he had reason to
believe that the employer had or was about to commit a cr iminal offence, was
evading a legal obligation, was perpetrating or about to perpetrate unfair
discrimination or a 'miscarriage of justice' or was endangering the health and safety
of any person or the environment. The disclosure is protected only if made in good
faith to a legal advisor, a member of Cabinet or the executive Council of a province,
or to an employee of the employer concerned.11
[43] In the present matter, the applicant asserts that he has made a protected
disclosure to the Minister of Arts, Culture and Recreation. The disclosure relates to
alleged wrongdoing in the administration of RIM. I must record that the issues raised
by the app licant in his affidavit made to SAPS for the purposes of a threat
assessment report and the subsequent supplementary affidavit made to the Minister
as a disclosure in terms of the PDA raises issues of very serious concerns. However,
those issues are in the public domain and in the knowledge of RIM. In fact, the RIM
Council has taken measures to address these problems. Several investigations are
currently underway to address th ese issue s. It is anticipated that the underlying
misconduct will be exposed and t hat those i mplicated will be held accountable for
their actions.
[44] I do not intend to deal with all issues raised (alleged disclosures); however,
the investigations of the alleged malfeasance have been acknowledged by the
applicant in his founding affidavit. In paragraph 74 of his founding affidavit, the
applicant asserte d that various interventions have been implemented, and some are
work s in progress, which have been reported to the Council through the Audit, Risk
and IT Committee of Council ('ARC' ). The applicant also pointed out that in April
2024, alleged fraudulent i ncidents relating to the reusing and rescheduling of tickets
on the ticket system were reported to the Council through ARC. He attached a copy
of that report in support of his disposition.
[45] Importantly, the applicant stated that SNG Grant Thornton was appointed to
investigate the ticket fraud matter. The applicant further mentioned that their final
11 Radebe v Premier, Free State 2012 (5) SA 100 (LAC).
report should be completed due course , following delays in extracting critical
information from the ticketing service provider. On the alleged diversion of ticket
funds from private tours, the applicant stated in paragraph 95 of his founding affidavit
that the RIM Council instituted a forensic investigation on allegations of fraud within
the organisation on private tour bookings. T he applicant also explained in detail the
genesis of the investigation.
[46] On the boat operation and the repairs of the RIM boats, the applicant stated in
paragraph 105 of his founding affidavit that in 2023, RIM appointed a service
provider, Africa Ferry, to assess the ferry operations at RIM in the following areas –
Marine assets (boats), Marine employees (crew) ferry related matters, including
maintenance and technical issues. The applicant explained that for various reasons
reported in the Council meeting, RIM is yet to receive a second opinion report from
the Navy.
[47] From the foregoing , it is abundantly clear that the RIM Council is aware of
these transgressions and has commissioned various investigations to address the
contraventions. Notably , the PDA encourages internal procedures and remedies to
be exhausted before public disclosure. The purpose of this requirement is for the
employer to be allowed to investigate the matter. The employer should be given a
chance to explain or correct the situation. In Tshishonga v Minister of Justice and
Constitutional Development and Another,12 it wa s held that the motivation for this
approach is not to cover up wrongdoing but because the internal remedy may be the
most effective .
[48] As explained elsewhere in this judgment, the employer has taken steps to
address the wrongdoing. Reiterating information that an employer is already aware
of and taking the necessary action to remedy the situation cannot be classified as a
protected disclo sure under the PDA. In these instances, in my opinion, the protection
intended by the PDA is not applicable. From a conspectus of all the facts placed
before this Court, the disclosure made to the Minister was not bona fide. It was a
12 2007 (4) SA 135 (LC) paras 199 – 200.
disclosure of informat ion that is subject to external investigations commissioned by
the employer. The information was already in the public domain.
[49] During argument and in his written submissions, Mr Alcock, the applicant's
legal counsel, argued that the PDA specifically requires the disclosure of any
information and, therefore, does not exclude information purely on the basis that it is
already in the public domain or known to key functionaries as the respondents herein
suggest. This argument, with respect, is mistaken and cannot be correct. It is
important to note that the Act refers to any disclosure of information and not to the
disclosure of any information. There is a difference between the two.
[50] Furthermore, I must emphasise that for the protection envisaged by the PDA
to be triggered, the information disclosed must not have been common knowledge or
known to the employer.13 It would be a different case if the disclosure was clearly
indicative of a breach of le gal obligations and possibly criminal conduct on the part of
the employer concerned, and the employer did nothing about it. In such a case, in
my view, the employee would enjoy the protection envisaged in the PDA when he
discloses the alleged transgression s. In the present matter, the information disclosed
is common knowledge, and the employer has commissioned external investigations
into those transgressions. The applicant is aware of these investigations and does
not impugn or challenge them. As it will b e demonstrated hereunder, the alleged
disclosure made by the applicant was made to avoid disciplinary action being taken
against the applicant.
Was the disclosure made in good faith?
[51] Section 7 of the PDA requires that a disclosure must be made in good faith.
Good faith must be assessed contextually, on a case -by-case basis, according to the
specific circumstances in the case. Bad faith, in a strict sense, refers to a ‘dishonest
intenti on or a corrupt motive’.14 Good faith is a finding of fact. The court must
13 Xakaza v Ekurhuleni Metropolitan Municipality [2013] 7 BLLR 731 (LC) paras 55 and 56.
14 Baxter v Minister of Justice & Correctional Services (2020) 41 ILJ 2553 (LAC) para 83.
consider all the evidence cumulatively to decide whether there is good faith or an
ulterior motive, or, if there are mixed motives, what the dominant motive is.15
[52] Ordinarily, in dismissal cases, protected disclosures happen before
disciplinary steps are commenced against an employee. The employer must act
against the employee in reaction to the disclosure. In other words, the occupational
detriment must be retaliato ry in form and be connected to the making of the
protected disclosure. Expressed differently; by subjecting an employee to an
occupational detriment, the employer punishes the employee for having exposed
their wrongdoings.
[53] In this case, a notice was given to the applicant on 12 February 2025 , to give
reasons as to why he should not be suspended. Two days later, after the applicant
was served with the said notice, the applicant allegedly made a protected disclosure
to the Minister of Sport, Arts and Culture. Evidently, the applicant made the alleged
protected disclosure after being given a notice contemplating his suspension and
setting the misconduct allegations against him. The employer did not act out of
vengeance when it instituted disciplinary proceedings against the applicant. I am
mindful that the discip linary proceedings are pending; however, I believe that the
employer did not retaliate when it instituted the proceedings against the applicant.
[54] This principle was aptly explained by the Labour Court in Mamudi v Property
Practitioners Regulatory Aut hority and Another ,16 where the c ourt held that the
protected disclosure must come before the disciplinary process starts. In other
words, the employee must first make a protected disclosure. Following that, the
employer must impose an occupational detriment on the employee because of that
disclosure. The reason for the employer's decision to take such action must be
directly linked to the employee having made the protected disclosure.
[55] In summation , there must be a causal nexus between the protected disclosure
made by the applicant and the subsequent occupational detriment imposed by the
15 Ramsammy v Wholesale and Retail Sector Education and Training Authority (2009) 30 ILJ 1927
para 53.
16 (J68/23)[2023] ZALCJHB 19 (13 February 2023).
employer. There is none in this matter. In my view, the alleged disclosure was made
as a stratagem to circumvent the disciplinary proceedings that the employer
instituted against the applicant. The disclosure in my view was not made in good
faith. While th e PDA should be interpreted generously to vindicate its purpose, courts
should not condone an employee’s attempt to invoke the Act’s protection to avoid the
consequences of shortcomings in their own conduct.17
Whether the applicant has been subjected to an occupational detriment ?
[56] An ‘occupational detriment’ includes prejudice going beyond the forms of
unfair labour practice identified in the LRA.18 In terms of the PDA, ‘ occupational
detriment , in relation to an employee or a worker, means —
(a) being subjected to any disciplinary action;
(b) being dismissed, suspended, demoted, harassed or intimidated;
(c) being transferred against his or her will;
(d) being refused transfer or promotion;
(e) being subjected to a term or condition of employment or retirement which
is altered or kept altered to his or her disadvantage;
(f) being refused a reference, or being provided with an adverse reference,
from his or her employer ;
(g) being denied appointme nt to any employment, profession or office;
(h) being subjected to any civil claim for the alleged breach of a duty of
confidentiality or a confidentiality agreement arising out of the disclosure of—
(i) a criminal offence; or
(ii) information which shows or tends to show that a substantial
contravention of, or failure to comply with the law has occurred, is
occurring or is likely to occur;
(i) being threatened with any of the actions referred to in paragraphs ( a) to
(h) above; or
17 National Institute for the Humanities and Social Sciences v Lephoto [2020] 3 BLLR 257 (LAC) para
37.
18 Grogan J Workplace Law 13th Ed (2020) at 69. See also definition of unfair labour practice in
section 186(2) of the LRA.
(j) being otherwise adversely affected in respect of his or her employment,
profession or office, including employment opportunities, work security and
the retention or acquisition of contracts to perform work or render services .’
[57] The institution of disciplinary action itself is not an occupational detriment. As
foreshadowed above, for the institution of disciplinary action to be an occupational
detriment, it must be in response to a protected disclosure, and a causal connection
must ex ist between the protected disclosure and the disciplinary action. It is common
cause in this matter that the disciplinary action started before the alleged protected
disclosure. The alleged protected disclosure that the applicant allegedly made in the
midd le of a disciplinary action does not give rise to an occupational detriment. The
disciplinary action instituted against the applicant is not a retaliatory action by the
RIM Council against the applicant.
[58] I have considered the charges levelled agains t the applicant, and I am of the
opinion that they are not a sham and are not a direct result of the purported
protected disclosure made by the applicant. I am of the view that the charges faced
by the applicant are genuine misconduct that ostensibly break s the relationship of
trust and confidence required in an employment relationship. The applicant is
charged with misrepresentation of his SAICA accreditation status, which was one of
the minimum requirements for the role of the CFO position when he applied for this
position. On the papers, the applicant does not dispute that he was not a member of
SAICA in good standing when he was appointed the CFO of RIM. Without delving
into the merits of those charges, I am of the view that they are serious, and the
applicant must be given an opportunity to respond to them at the appropriate
platform .
[59] What I also find highly concerning is that the RIM Council has gone out of its
way to protect the rights of the applicant, and in return, the applicant has spurned the
olive branch extended to him. The charge sheet preferred against the applicant
ensures t hat his rights are protected by ensuring that he receives a fair procedure at
the disciplinary hearing. To this end, RIM made a tender to the applicant to consent
to have the matter referred to arbitration at the Commission for Conciliation,
Mediation and Arbitration (‘CCMA') and to elect an independent chairperson who has
not done work for RIM. In terms of this section, the employee must provide written
consent for the inquiry unless the inquiry process is part of a collective agreement.19
As discussed abo ve, the referral of the disciplinary hearing to the CCMA is a
legislative measure created to safeguard employees like the applicant who alleges to
have made a protected disclosure. For completeness, the relevant part of sections
188A(11) and (12) of the LR A state that:
‘(11) Despite subsection (1), if an employee alleges in good faith that the
holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act 26
of 2000), that employee or the employer may require that an inquiry be
conducted in terms of this section in to allegations by the employer into the
conduct or capacity of the employee.
(12) The holding of an inquiry by a n arbitrator in terms of this section and the
suspension of an employee on full pay pending the outcome of such an
inquiry do not constitute a n occupational detriment as contemplated in the
Protect Disclosure Act, 2000 (Act 26 of 2000). ’
[60] In the notice to attend the disciplinary hearing, the applicant is asked to make
an election within 24 hours. The applicant did not make the election. On 21 April
2025, after this application was launched, the first to the third respondents again
invited t he applicant to make an election. In that correspondence, it was stated that
whilst RIM has commenced and finalised the process to appoint an independent
chairperson, RIM continues to be amenable to the disciplinary hearing being referred
to the CCMA in te rms of section 188A (11) of the LRA. The applicant was informed
that should he wish for the matter to be referred to the CCMA; he must inform RIM
accordingly by no later than 18h00 on Tuesday, 22 April 2025. The applicant did not
respond to these correspon dences.
[61] Despite the proposed measures to protect the applicant's rights, the applicant
proceeded with this application. In doing so, the applicant claims to have
experienced occupational detriment, notwithstanding that the allegations are not
19 Section 188A(1)(b) of the LRA.
suppor ted by evidence. In my view, the applicant suffered no occupational detriment
in this matter. In view of all these considerations, I am of the opinion that the
applicant's application must fail.
Costs
[62] As a general rule, costs follow the result, and successful parties should be
awarded their costs.20 I have considered, the complexity of the issues raised in this
matter, and I am of the view that costs should be awarded in favour of the
respondents on scale B.
Order
[63] In the result, the following order is granted:
63.1 The applicant’s application is hereby dismissed.
63.2 The applicant is ordered to pay the respondents’ costs including the
costs of counsel on scale B.
________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant : Adv Alcock
Instructed by: Phungula Sibusiso Attorneys
For the First, Second and Third Respondents : Adv Mndebele
20 Union Government v Gass 1959 4 SA 401 (A) 413.
Instructed by: Molatudi Attorneys