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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: 2025 – 212698

In the matter between:

THEBOGO VINCENT MODIKA Applicant
and
INDUSTRIAL DEVELOPMENT CORPORATION
OF SOUTH AFRICA First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent

Heard: 12 November 2025
Delivered: 13 November 2025
This judgment was handed down electronically by circulation to the parties
and legal representatives by email. The time for hand-down is deemed to be 13
November 2025
Summary: Jurisdiction – Labour Court does have jurisdiction to consider an
urgent application to inter dict disciplinary hearing – applicant must however
assert Labour Relations Act (LRA) right – exceptional and compelling reasons

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must also be shown – applicant asserting right under LRA and exceptional
circumstances shown – Labour Court entitled to intervene
Urgency – principles considered – applicant acting with sufficient expedition –
failure to consider matter will cause injustice – applicant cannot obtain
substantive redress in ordinary course – matter heard as one of urgency
Section 188A(11) of LRA – provisions of section considered – applicant
alleging protected disclosure and invoking section – purpose of section is for
CCMA to conduct independent disciplinary enquiry which mitigates discipline
based on protected disclosure – independent arbitrator determines if
misconduct is proven and not whether discipline is for protected disclosure –
misconduct is issue best dealt with in evidence – not appropriate for Labour
Court to determine issue of protected disclosure at this point
Section 188A(11) of LRA – applicant only required to make out a case that
disclosure was made and such disclosure would qualify as protected
disclosure under Protected Disclosures Act (PDA) – not required for Court to
decide whether applicant would be entitled to protection or whether disclosure
bona fide or justified – purpose of s 188A(11) is not that decision be made on a
protected disclosure – arbitrator decides whether to accept pre- dismissal
arbitration in terms of s 188A(11) – not appropriate for Labour Court to decide
such issue
Section 188A(11) – purpose of section to move disciplinary proceedings to
CCMA by way of pre -dismissal arbitration under s 188A – impartial arbitration
on misconduct charges removes risk of influence in decision of misconduct as
a result of protected disclosure – misconduct will thus finally be impartially
decided based only on what employer can prove in respect of misconduct –
statutory prescribed alternative to internal disciplinary hearing in cases of
alleged protected disclosure
Clear right – evidence establishing applicant made protected disclosure –

Clear right – evidence establishing applicant made protected disclosure –
applicant specifically invoking s 188A(11) – internal disciplinary hearing no
longer competent / appropriate – misconduct hearing moved to CCMA – clear
right shown by applicant – interdicting of internal disciplinary hearing justified

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Prejudice – undue prejudice to applicant to participate in internal disciplinary
hearing where ri sk of protected disclosure may impact decision – in
proceedings at CCMA under s 188A(11) commissioner independently
determining allegations of misconduct against applicant – proceeding with
internal hearing unduly depriving employee of such protection – little
prejudice to employer in such process
Interdict – requirements for interdict satisfied – internal disciplinary hearing
interdicted

JUDGMENT

SNYMAN, AJ
Introduction
[1] On 10 November 2025, the applicant brought an urgent application to interdict
the first respondent (IDC) from continuing with an internal disciplinary hearing
against him , in terms of a finally amended charge sheet issued on 29
September 2025 which contained ten individual charges of misconduct (with
sub counts). The applicant has alleged that th is disciplinary hearing
constitutes an occupational detriment against him , based on a protected
disclosure he had made on 29 July 2025. In this context, the applicant has
invoked section 188A(11) of the Labour Relations Act (LRA)1 which reads:
‘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 into allegations by the employer into the
conduct or capacity of the employee.’
[2] According to the applicant, the fact that he has referred a dispute to the
second respondent, being the Commission for Conciliation, Mediation and
Arbitration (CCMA) , in terms of section 188A(11), means that the internal

1 Act 66 of 1995 (as amended).

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disciplinary hearing against him in the IDC, which was set to proceed on 11
and 12 November 2025 but ultimately did not continue on those dates, should
be interdicted going forward. The IDC has opposed the application on a
number of grounds, including challenging urgency.
[3] 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.2
[4] In deciding a matter such as this, t wo questions must be answered at the
outset. First, does this Court have the jurisdiction to intervene at this point and
grant the applicant the relief he seeks. And second, has the applicant has
made out a proper case of compellingly extraordinary circumstances to justify
intervention at this stage. And of course, since this was placed in dispute by
the IDC, the issue of urgency also needs to be decided.
[5] The matter was argued before me on 12 November 2025. After considering
the submissions by both parties, and in order to enable me to have proper
regard to the answering affidavit by the IDC which I only received that
morning, I indicated to the parties that I would reserve judgment and hand
down judgment on 13 November 2025. I now do so, starting with setting out
the background facts.
Background facts
[6] The background facts in this case are straight forward, and mostly
undisputed. Insofar as factual disputes exist, I will determine those on the
basis of the principles as articulated in Plascon Evans Paints v Van Riebeeck
Paints.
3 In short, this means that it is the admitted or undenied facts together
with the facts as stated by the IDC that must be utilized in deciding this

2 Setlogelo v Setlogelo 1914 AD 221 at 227; Masstores (Pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd
2017 (1) SA 613 (CC) at para 8; 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.
3 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 (2) SA 277 (SCA) at paras
26 – 27; Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2)
SA 359 (CC) at para 53.

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matter. The only exception would be if the IDC simply offers a bald denial, or
the facts as stated as stated by it can be considered to be patently false,
absurd or fanciful.4
[7] The applicant is employed by the IDC as a Senior Specialist: Employee
Relations and Transformation, in the Talent Management and Organisational
Effectiveness (TMOE) section of the IDC. The applicant report s to Lydia
Mdaka (Mdaka), the Head: Talent Management and Organisational
Effectiveness, as his immediate line manager. The applicant contended that
he was subjected to constant harassment, bullying and victimisation by
Mdaka. Although Mdaka denies this, what seems to be quite clear from the
affidavits filed is that the working relationship between the applicant and
Mdaka was strained, to say the least.
[8] What was undisputed is that the applicant lodged a complaint against Mdaka
on 29 July 2025, using the anonymous whistle blowing report line in the IDC
for this purpose. In this complaint, the applicant raised concerns about
systemic bullying, harassment, unfair discrimination practices, and harassing
employees perpetrated by Mdaka. It was contended by the applicant that
Mdaka acted contrary to her obligations under the Constitution, the LRA and
the Employment Equity Act (EEA)
5. The following instances were highlighted
in the complaint:
• Multiple informal and formal complaints lodged with the Senior Human
Capital Business Partner (HCBP) have not yielded any meaningful
resolution.
• Instances of overt harassment, unfair discriminatory practices, and
workplace intimidation have gone unaddressed, contributing to growing
psychological harm and disengagement.
• Punitive Performance Appraisal and deliberately setting employees up
for failure.

4 See Minister of Justice and Correctional Services and others v Tshifhango and Another [2019] 7
BLLR 627 (LAC) at para 26; TIBMS (Pty) Ltd t/a Halo Underground Lighting Systems v Knight and

BLLR 627 (LAC) at para 26; TIBMS (Pty) Ltd t/a Halo Underground Lighting Systems v Knight and
Another (2017) 38 ILJ 2721 (LAC) at para 29; SA Football Association v Mangope (2013) 34 ILJ 311
(LAC) at para 12.
5 Act 55 of 1998 (as amended).

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• Unfounded allegations and ill-treatment during leave, attitude of
suspicion even where employees are accessing a benefit. E.g.
Engagement with Senior Wellness Specialist during bereavement.
• Refusal to approve a family responsibility leave which could not be
taken when the employee’s wife had undergone major surgery and lost a
22 weeks pregnancy due to work commitments.
• Efforts by employees to resolve matters constructively—via team
discussions, meetings with management, and internal grievance
procedures—have been repeatedly dismissed or ignored.
• Threating emails directed at ER Professionals, even when they have
engaged their line manager on working arrangements.
• The resignation of former ER Lead, occurred amidst heightened
tensions and unresolved concerns, including fears of industrial action
allegedly due to similar treatment.
• The ER reporting line remains misaligned with national best practices,
despite formal internal submissions and external benchmarks being
raised.
• This report brings these longstanding issues into formal view, not to
malign individuals, but to compel institutional introspection and
intervention in line with the Constitution of South Africa, the Labour
Relations Act 66 of 1995, the Employment Equity Act 55 OF 1998, and
international labour standards.’ (sic)
[9] It may be added that on 8 September 2025, the applicant received an email
from the DE: Human Capital, informing him that a law firm, ENS Africa, had
been appointed to investigate his complaint which he lodged on 29 July 2025
against Mdaka.
[10] The IDC contends that the aforesaid report made by the applicant had nothing
to do with the disciplinary action that was ultimately ins tituted against the
applicant. According to Mdaka, she contracted Bankey Sono (Sono) from
Werksmans Attorneys on 21 July 2025, to assist her in what she calls a labour

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related matter involving the applicant, which related to ongoing misconduct
which commenced approximately a year and a half earlier. Mdaka shared
documents with Sono on 24 July 2025. This interaction with Sono resulted in
a formal instruction given to Werksmans Attorneys on 31 July 2025, in the
following terms: ‘ You are requested to peruse the information and related
documents shred with you on the behaviour of the Senior Employee Relations
& Transformation Specialist and advise if the employee has a case to answer
or not. Should the above action require IDC to act against the concerned
employee, you are requested to advise and assist the IDC with the institution
of appropriate action against he employee as below: (a) you are requested to
initiate the disciplinary process on behalf of the IDC …’.
[11] The applicant was then placed on precautionary suspension by Mdaka on 5
August 2025. Mdaka states that she was no aware of the complaint by the
applicant when she suspended him. But Mdaka does concede in the
answering affidavit that an ‘ anonymous complaint ’ against her about
harassment, bullying and victimisation was sent to the Head of Division of the
IDC on 6 August 2025 through the IDC’s internal whistleblowing platform.
Mdaka also concedes that on 22 August 2025 she became of the complaint
herself.
[12] Finally, and on 31 August 2025, Werksmans recommended that the applicant
be subjected to a disciplinary hearing, which recommendation was accepted
by the IDC . Charges were proffered against the applicant on 5 September
2025 and on 8 September 2025, the applicant was notified that the
disciplinary hearing proceedings were scheduled for 16 September 2025 and
1 October 2025.
[13] The IDC has provided a fairly lengthy exposition of what it contends are
‘Stalingrad’ tactics on the part of the applicant to delay the disciplinary
proceedings. I do not intend to repeat all the detail in this regard. T he
applicant sought a postponement of the hearing on 16 September 2025

applicant sought a postponement of the hearing on 16 September 2025
because he was ill , which was granted. The final charge sheet containing a
total of 10 charges , together with , was then served on the applicant on 29
September 2025, prior to the next hearing date of 1 October 2025.

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[14] The hearing then convened on 1 October 2025, and in this hearing the
applicant specifically stated that he was the whistleblower and author of the
complaint of 29 July 2025. The applicant contended that the disciplinary
hearing against him constituted an occupational detriment as a result of this.
The applicant requested a further postponement of the disciplinary hearing,
contending that the disciplinary hearing should be held in abeyance until the
finalisation of various complaints he had lodged, including a complaint to the
Public Protector. The postponement was granted, not on the basis he sought
to advance, but instead to allow him an adequate opportunity to prepare for
the disciplinary hearing and to gain access to documents he asked for . The
hearing was scheduled to proceed on 29 October 2025.
[15] On 23 October 2025, the applicant requested the IDC, in writing, to suspend
the disciplinary hearing pending the finalisation of an investigation by the
Public Protector pursuant to a report the applicant had made to it about
alleged impropriety at the IDC. The applicant in the alternative proposed that
the disciplinary hearing rather be conducted under section 188A of the LRA.
However, the IDC was not inclined to accept these proposals. In an answer to
the applicant on 27 October 2025, it insisted that the disciplinary hearing
proceed on 29 October 2025. On the same day (27 October 2025) the
applicant then lodged a referral with the CCMA pertaining to a protected
disclosure, in terms of section 188A(11) of the LRA.
[16] When the disciplinary hearing convened on 29 October 2025, the applicant
again asked for a postponement because he was ill, and a final postponement
was then granted for the hearing to proceed on 11 and 12 November 2025.
The applicant was also informed that the disciplinary hearing would proceed
on 11 and 12 November 2025, irrespective of his section 188A(11) referral to
the CCMA.

on 11 and 12 November 2025, irrespective of his section 188A(11) referral to
the CCMA.
[17] The CCMA, pursuant to the referral by the applicant, sent a notice of set down
to the parties on 2 November 2025, setting the section 188A enquiry down for
arbitration on 17 November 2025. As a result, and on 6 November 2025, the
applicant sent a letter to the IDC, requesting that the disciplinary proceedings
be abandoned as a result of his referral to the CCMA under section 188A(11)

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of the LRA, and the fact that an arbitration hearing in this regard had been
scheduled for 17 November 2025. The IDC answered on 7 November 2025,
informing the applicant that the disciplinary hearing will proceed on 11 and 12
November 2025, and that the proceedings under section 188A(11) do not
interdict the internal disciplinary form proceeding.
[18] The current application then followed on 10 November 2025.
Urgency
[19] The IDC has challenged the urgency of this matter, in essence complaining
that the applicant’s urgency is self -created. The IDC argues that the
application should have been brought immediately after 8 September 2025,
being the date when the applicant was first informed of the disciplinary
hearing which was scheduled to proceed on 16 September 2025 and 1
October 2025. The IDC also relies on what it calls the delaying tactics of the
applicant pertaining to the postponement of the scheduled disciplinary
hearings, as a basis for its case of self -created urgency on the part of the
applicant. And lastly, according to the I DC, the applicant should at worst have
brought this application immediately after he was informed at the hearing on
29 October 2025 that the disciplinary hearing would proceed on 11 and 12
November 2025, but the applicant only brought the application on 10
November 2025.
[20] Urgent applications are governed by Rule 38 of the Labour Court Rules, being
the successor to the erstwhile Rule 8. The Court in Jiba v Minister:
Department of Justice and Constitutional Development and Others
6 applied
Rule 8 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

is equally trite that an applicant is not entitled to rely on urgency that is self
created when seeking a deviation from the rules.’


6 (2010) 31 ILJ 112 (LC) at para 18.

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These same considerations, in my view, equally apply to Rule 38.
[21] When considering whether urgency has been established, it must be
considered whether an applicant would not be afforded substantial redress in
due course, and the applicant must provide proper reasons in support of a
case that this would not be possible.
7 As succinctly described by the Court in
Maqubela v SA Graduates Development Association and Others8:
‘Whether a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set out and secondly
whether the applicant seeking relief will not obtain substantial relief at a later
stage. In all instances where urgency is alleged, the applicant must satisfy the
court that indeed the application is urgent. Thus, it is required of the applicant
adequately to set out in his or her founding affidavit the reasons for urgency,
and to give cogent reasons why urgent relief is necessary. …’
[22] Where an applicant seeks final relief, the Court must be even more
circumspect when deciding whether or not urgency has been established. 9 In
Tshwaedi v Greater Louis Trichardt Transitional Council10 the Court said:
‘… An applicant who comes to court on an urgent basis for final relief bears
an even greater burden to establish his right to urgent relief than an applicant
who comes to court for interim relief. ….’
[23] The Court must also further consider the interests of the respondent party,
and in particular, the prejudice the respondent may suffer if the matter is
urgently disposed of. In Association of Mineworkers and Construction Union
and Others v Northam Platinum Ltd and Another11 the Court held as follows:

7 Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC) at para 17;
East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL
28244 (GSJ) at para 6.

28244 (GSJ) at para 6.
8 (2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus
Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.
9 [2002] JOL 9452 (LC) at para 8.
10 [2000] 4 BLLR 469 (LC) at para 11.
11 (2016) 37 ILJ 2840 (LC) at para 26. See also IL & B Marcow Caterers (Pty) Ltd v Greatermans SA
Ltd and Another 1981(4) SA 108 (C) at 113D-114C.

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‘But it is not just about the applicant. Another consideration is possible
prejudice the respondent might suffer as a result of the abridgement of the
prescribed time periods and an early hearing.’
[24] Finally, urgency must not be self -created by an applicant, as a consequence
of the applicant having not brought the application at the first available
opportunity.12 As the Court said in Northam Platinum supra13:
‘… the more immediate the reaction by the litigant to remedy the situation by
way of instituting litigation, the better it is for establishing urgency. But the
longer it takes from the date of the event giving rise to the proceedings, the
more urgency is diminished. In short, the applicant must come to Court
immediately, or risk failing on urgency. …’

[25] Considering the substance of the opposition of the IDC where it comes to the
issue of urgency, it do not believe it is correct to say that these proceedings
should have been brought immediately after 8 September 2025. The fact is
that at that point, there were not even final charges proffered against the
applicant. The final charge sheet only followed on 29 September 2025, so,
realistically, it must be said that it was at that point, coupled with the
scheduled hearing date of 1 October 2025, that the applicant can be expected
to have brought the application. It was in the hearing on 1 October 2025 that
the applicant actually made the submission that the disciplinary hearing
against him should not proceed on the basis that he had made a protected
disclosure, and that the disciplinary proceedings against him constituted an
occupational detriment as a result. It follows, in my view, that it is the period
from 1 October 2025 to 10 November 2025 that requires consideration.
[26] I do accept that it can be said that it would have been preferable for the
applicant to have referred the section 188A(11) dispute to the CCMA
immediately following the postponement of the disciplinary hearing on 1

immediately following the postponement of the disciplinary hearing on 1
October 2025. However, it is not as if the applicant just left matters there.

12 See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (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.
13 Id at para 26. See also Sihlali and Others v City of Tshwane Metropolitan Municipality and Another
(2017) 38 ILJ 1692 (LC) at para 18.

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Knowing the disciplinary hearing was scheduled to proceed on 29 October
2025, the applicant instead first attempted to convince the IDC, on 23 October
2025, that the disciplinary hearing rathe be conducted under section 188A of
the LRA, which request was refused by the IDC on 27 October 2025, insisting
that that the disciplinary hearing proceed on 29 October 2025. It is at that
point that the applicant then lodged the section 188A(11) referral with the
CCMA, which makes sense to me, considering the conducting of the matter to
that point. It is in fact only when this referral had been made to the CCMA that
there would then exist a basis to approach the Court to seek urgent
intervention.
[27] It c an be said that the applicant should have brought this application itself
sooner and not wait some eight days from being informed on 29 October 2025
that the matter will proceed on 11 and 12 November 2025 despite his CCMA
referral. Whilst there may be some substance in the c riticism of th e IDC for
this delay, I do not think this sufficient to non- suit the applicant based on a
lack of urgency. It must also be considered in this context that the applicant
first sought call upon the IDC on 6 November 2025 to agree to terminate the
proceedings, which would avoid litigation in this Court, which is a competent
approach.
14 The IDC refused to agree on 7 November 2025, and this
application followed three days later, which I consider to be prompt action. I
am also satisfied that the applicant properly attended to this matter throughout
and simply cannot be accused of undue procrastination. I am satisfied that
once the referral to the CCMA had been made, the applicant throughout acted
with the necessary expedition. Further, I am willing to overlook this delay
because, in my view, there will be a failure of justice if I do not, and the
applicant in reality has no substantial redress in the ordinary course available
to him.

applicant in reality has no substantial redress in the ordinary course available
to him.
[28] I believe that a refusal to consider the applicant’s application will lead to a
grave injustice. It can nothing else but unfair to expect the applicant to

14 In Continuous Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes and Another (2012) 33 ILJ 629
(LC) at para 21 it was said that: ‘… In my view, litigants should be encouraged in any attempt to avoid
litigation, rather than rushing to court as a first option. Litigation is costly and often unnecessary. … ’.
See also A J Charnaud & Co (Pty) Ltd v Van der Merwe and Others (2020) 41 ILJ 1661 (LC) at para
5.

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participate in internal disciplinary proceedings which, if his case is successful,
would effectively cause such internal disciplinary proceedings to be null and
void. This is even more prejudicial , considering that he CCMA has convened
arbitration proceedings for 17 November 2025 to determine whether to accept
the referral or not. As held in Fisher v Ngcuka N.O. and Others15:
‘In my view, not to consider the application could cause a grave injustice. I
believe it would be patently unfair to expect the applicant to participate in what
would clearly be a comprehensive disciplinary hearing, in circumstances
where the applicant has alleged an occupational detriment as a result of
having made a protected disclosure, which according to her strikes at the very
heart of the disciplinary proceedings against her. The issue of the possible
occupational detriment following a protected disclosure is in itself an issue
that carries with it an inherent quality of urgent intervention, especially where
an alternative process to deal with it is available and has been invoked, but
despite this, Bidvest Services is pressing on with internal discipline
.’
[29] The Court in SA Transport and Allied Workers Union and Others v MSC
Depots (Pty) Ltd and Others16 adopted a similar view , which concerned a
case where there was an agreement to pre-dismissal arbitration under section
188A, and the employer proceeded to nonetheless institute internal
disciplinary proceedings. In that case, and in a manner quite comparable to
the complaints raised by the IDC in casu, it was contended that urgency was
self-created, when the employees then brought an application to interdict the
disciplinary hearing. This contention was based on, inter alia , th e charges
being handed to the employees on 31 May 2012, there being no earlier
challenge to the disciplinary enquiry, the enquiry being completed on 23 June
2012 when the employees were dismissed, and the application then only

2012 when the employees were dismissed, and the application then only
being brought on 5 July 2012.17 In this context, the Court held:18
‘While the union may be criticized for its failure to respond to the
correspondence addressed to it during early June 2012, and in particular, to
the clear notice of the first respondent's intention to conduct an internal

15 (2025/189683) [2025] ZALCJHB 514 (28 October 2025) at para 12.
16 (2013) 34 ILJ 706 (LC).
17 See para 12 of the judgment.
18 Id at para 13.

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disciplinary hearing, as Advocate Crampton submitted, it is the dismissal of
the second and third applicants that triggered the present application since it
is the dismissals that are contended to constitute the breach of the agreement
concluded in terms of s 188A of the LRA, and the process contemplated by
the court order granted on 22 May 2012. Given that the papers in the present
application were filed within ten days or so of receipt of the notice of
dismissal, in my view, the applicants acted sufficiently promptly to assert their
rights. Further, it seems to me that it is in the interests of all concerned that
this matter be resolved without further delay. I am satisfied that the application
ought to be dealt with on an urgent basis.’
I believe that similar considerations, and then a similar conclusion, apply in
casu. It is in reality the refusal by the IDC to agree to section 188A
proceedings under the auspices of the CCMA, once the issue of the protected
disclosure was pertinently raised, that served as the catalyst for proceedings
to follow. This only occurred, at the earliest, on 27 October 2025.
[30] The applicant cannot obtain substantive redress in the ordinary course. This is
because of the sui generis nature of section 188A proceedings, brought under
section 188A(11). As will be discussed below in this judgment, it is intended to
act as a complete substitute for internal disciplinary proceedings when
allegations of an occupational detriment due to a protected disclosure is at
stake. If internal disciplinary proceedings are allowed to proceed, even if a
dismissal of course can be later challenged under the LRA, this up front
protection, so to speak, will be lost. This equally justifies urgent intervention.
As held in Matlala v Foskor Proprietary Limited and Others19:
‘Further, there is no equivalent ‘alternative’ to invoking s 188A(11), which
Matlala has a right to exercise. While there is a possibility of the provision

Matlala has a right to exercise. While there is a possibility of the provision
being abused to delay or avoid an internal hearing, it must be remembered
that procedure initiated by the employer does not disappear if an employee
successfully invokes the provision. It simply relocates the subject matter of
the internal enquiry to arbitral proceedings …
’

19 (2025/169524) [2025] ZALCJHB 478 (22 October 2025) at para 31.

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[31] I am therefore satisfied that the applicant has made out a proper case for
urgency, and therefore I shall proceed to decide this matter as one of urgency
under Rule 38.
Jurisdiction
[32] The Court in Gcaba v Minister for Safety and Security and Others 20 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 internal disciplinary
proceedings against an employee is sought, the Labour Court must have the
jurisdiction in terms of section 157 21, and the competence and power in terms
of Section 158,22 in order to do this, as will be elaborated on below.
[33] The Labour Court will only entertain any application brought directly to the
Court to interdict incomplete disciplinary proceedings in truly exceptional
circumstances, where material irremediable prejudice or injustice is shown to
exist. In Booysen v Minister of Safety and Security and Others
23, it was held
as follows:
‘… the Labour Court has jurisdiction to interdict any unfair conduct including
disciplinary action. However 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.’

20 (2010) 31 ILJ 296 (CC) at para 74.
21 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’.

in terms of this Act or in terms of any other law are to be determined by the Labour Court’.
22 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 ….’
23 (2011) 32 ILJ 112 (LAC) at para 54.

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[34] Similarly in Member of the Executive Council for Education, North West
Provincial Government v Gradwell 24 the Court confirmed that these kinds of
applications should only be entertained ‘ … in extraordinary or compellingly
urgent circumstances …’. And in Jiba supra25 the Court held:
'Although the court has jurisdiction to entertain an application to intervene in
uncompleted disciplinary proceedings, it ought not to do so unless the
circumstances are truly exceptional. Urgent applications to review and set
aside preliminary rulings made during the course of a disciplinary enquiry or to
challenge the validity of the institution of the proceedings ought to be
discouraged. These are matters best dealt with in arbitration proceedings
consequent on any allegation of unfair dismissal, and if necessary, by this
court in review proceedings …’
[35] The requirements, for the want of a better description, for urgent intervention
in incomplete disciplinary proceedings internally in an employer has in my
view been further tightened by the recent judgment of the Labour Appeal
Court (LAC) in Cibane and Another v Premier of Province of Kwazulu- Natal
26.
Relying on how the Constitutional Court dealt with the notion of the Labour
Court’s jurisdiction to adjudicate and decide unlawful dismissals in Steenkamp
and Others v Edcon Ltd (National Union of Metalworkers of SA intervening) 27,
being a finding that the Labour Court in fact had no jurisdiction to determine
the lawfulness of a dismissal, the Court in Cibane decided:28
‘It is clear from this passage that outside of the scope of any statutory
provision that specifically confers jurisdiction on the Court, the Labour Court
has no jurisdiction, in any general sense, to make any determination of the
unlawfulness of employer conduct.’
[36] It must therefore be made clear that an applicant cannot simply rely on a
general jurisdiction of this Court to intervene, qualified only by exceptionality.

general jurisdiction of this Court to intervene, qualified only by exceptionality.

24 (2012) 33 ILJ 2033 (LAC) at para 46. See also Uthukela District Municipality ( supra) at para 38;
Ngobeni v Passenger Rail Agency of SA Corporate Real Estate Solutions and Others (2016) 37 ILJ
1704 (LC) at para 12; 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.
25 Id at para 17
26 [2025] 10 BLLR 1004 (LAC).
27 (2016) 37 ILJ 564 (CC) at para 106.
28 Id at para 24.

17

The applicant must show that the right to intervene arises from a right
bestowed on the applicant by the LRA, which is enforceable under the LRA. If
that is so, then the Court would have jurisdiction in intervene, on for example
an interim basis, pending the enforcement of such right in the normal course.
As held in Cibane supra
29:
‘In the absence of any statutory provision conferring jurisdiction on the Labour
Court both in respect of employer conduct alleged to be unlawful and in
employment-related matters generally, there can thus be no general rule, as
the judgment in Booysen might be construed, to the effect that the Labour
Court has jurisdiction to intervene in medias res to restrain any alleged
illegalities, irregularities or unfairness in incomplete disciplinary proceedings.
[37] In casu, the applicant has a right, under section 188A(11) of the LRA, to refer
a dispute to the CCMA for determination because he has alleged the
disciplinary proceedings against him constitutes an occupational detriment as
a result of a protected disclosure he had made. But does this mean that this
process should stand in the way of the IDC nonetheless being entitled to
continue with the internal disciplinary proceedings, whilst the process invoked
by the applicant runs its ordinary course to fruition in the CCMA. This is where
the requirement of exceptionality comes into its own. Therefore, I am satisfied
that in this case, the applicant seeks to assert a right under the LRA, and this
Court therefore has jurisdiction to afford the applicant interdictory relief he
seeks, provided he satisfies the essential requirement of truly exceptional
circumstances.
[38] In my view, not to consider the application could cause a grave injustice. I
have dealt with this already under the heading of urgency above. I am
therefore convinced that the necessary exceptional circumstances exist to
justify the intervention of this Court at this juncture. I am therefore willing to

justify the intervention of this Court at this juncture. I am therefore willing to
entertain the merits of the applicant’s application.
Analysis

29 Id at para 27.

18

[39] In a nutshell, the case of the applicant is that he has been visited with an
occupational detriment, in the form of the disciplinary proceedings instituted
against him, brought as a result of a protected disclosure he ha d made on 29
July 2025. This protected disclosure, in terms of the founding affidavit,
pertains to a number of issues, dealt with in more detail below. This is thus a
case founded on the Protected Disclosures Act (PDA)30, 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’.
31 An occupational detriment includes, by definition in the PDA, the
taking of disciplinary action.
[40] In casu, it was undisputed that the applicant made a disclosure to the IDC on
29 July 2025. The IDC disputes whether this qualified as a protected
disclosure, but did concede in its an swering affidavit that t his disclosure was
received and accepted by the IDC , processed, and then dealt with by a third
party law firm. A disclosure made by an employee would qualify as a as a
protected disclosure if it resorts under the definition of a ‘ protected disclosure’
under section 1 of the PDA
32.That requires proper consideration of what the
applicant’s disclosure of 29 July 2025 in fact contains. It is a fairly detailed
document, but the gist of it can be summarized as follows. The applicant, as
member of the employee relations team in the IDC, must serve as a neutral
adjudicator in workplace discipline and be a steward of the employer -
employee relationships. According to the applicant, these functions flow from
the LRA, which requires the employee relations team to be able to function
without fear or favour and in line with what is fair labour practices . The
applicant raised a specific complaint that these objectives have been severely
compromised, in particular by the head of department in the TMOE Unit ,

30 Act 26 of 2000.
31 See section 3 of the PDA.

30 Act 26 of 2000.
31 See section 3 of the PDA.
32 Section 1(1)(i) of the PDA defines the term 'disclosure ' as being 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: (1) That a criminal offence has been committed, is being committed or is likely to be
committed; (2) that a person has failed, is failing or is likely to fail to comply with any legal obligation
to which that person is subject; (3) that a miscarriage of justice has occurred, is occurring or is likely to
occur; (4) that the health or safety of an individual has been, is being or is likely to be endangered; (5)
that the environment has been, is being or is likely to be damaged; and (6) unfair discrimination as
contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 ( Act 4 of
2000).

19

being Mdaka. The applicant alleges instances of overt harassment, unfair
discriminatory practices, threatening behaviour, and workplace intimidation.
The applicant claims there are contraventions of the Constitution, the LRA
and the E EA. The applicant also alleges a violation of human dignity. The
applicant also does not baldly make these allegations, but provides examples
of it and motivates it.
[41] I have little hesitation in concluding that, having proper regard to the contents
of the applicant’s disclosure, that it would qualify as a protected di sclosure
under section 1 of the PDA. In particular, there is are allegations that the head
of department of the TCOE unit (Mdaka) , being the very person that instituted
the disciplinary proceedings against the applicant, is failing to comply with the
legal obligations on her , the health of individuals is being compromised by
her, and that there exists discrimination perpetrated by her , all of which form
part of the definition in section 1 of the PDA.33 As pertinently held in Baxter v
Minister of Justice and Correctional Services and Others34:
‘… it is important to note that the PDA does not require that the disclosures
made are factually correct. The phrase ‘tends to show’ in s 1 of the PDA
intends that it is sufficient if the information in the disclosure is indicative of an
impropriety. Likewise, the requirement that the employee merely have a
reason to believe that the information points to an irregularity does not require
personal knowledge of the information disclosed. That would set too high a
standard frustrating the operation of the PDA. Hearsay information, depending
on its nature and cogency, may provide a basis for a reasonable belief of
possible irregularity. …
’
[42] The Court in Baxter supra in fact accepted that disclosures concerning
employees who served on i nterview panels having failed to comply with

33 In Radebe and Another v Marshoff, Premier of the Free State Province and Others (2009) 30 ILJ

1900 (LC) at para 53, it was said: ‘For a disclosure to be a disclosure in terms of the Act, it must have
all the elements, being the following: (1)disclosure of information; (2)regarding any conduct of an
employer or an employee of that employer; (3) made by any employee who has reason to believe; (4)
that the information concerned shows or tends to show one or more of the following improprieties
listed in paras (a)-(g) …’.
34 (2020) 41 ILJ 2553 (LAC) at para 67.

20

various legal obligations to which they were subject , would qualify under
section 1 of the PDA. The Court decided:35
‘It is clear therefore that the disclosures made by the appellant relating to the
irregularities in the various recruitment processes constituted disclosures in
terms of the PDA. They disclosed information regarding the conduct of some
members of the interview panels and Nxele which the appellant had reason to
believe showed or tended to show that the members of the interview panels
and/or Nxele had failed to comply with legal obligations to which they were
subject in terms of the Public Service Regulations. The Labour Court erred in
holding otherwise.
’
The applicant, in his disclosure of 29 July 2025, basically says the same kind
of thing. No doubt it qualifies, by definition, as a protected disclosure under
section 1 of the PDA.
[43] The IDC further disputed that the disclosure pre-dated the disciplinary
proceedings, despite the disclosure being made as far back as 29 July 2025.
The reason for IDC’s contention in this regard is that before the applicant filed
his disclosure, it had been internally discussed and resolved to discipline the
applicant. The IDC refer s to instructions having been given to its attorneys as
far back as 22 July 2025 to advise on the issue of misconduct charges against
the applicant , and shared documents with such attorneys on 24 July 2025.
However, the attorneys were only formally instructed to advise whether in fact
disciplinary proceeding should be instituted against the applicant on 31 July
2025. The recommendation to proceed with disciplinary action only followed
on 31 August 2025, with the actual charges first being brought on 5
September 2025. These critical events only occurred after the applicant’s
disclosure had been made.
[44] I therefore cannot agree with this view adopted by the IDC. Whatever the IDC
may have decided beforehand about possible disciplinary proceedings is of

may have decided beforehand about possible disciplinary proceedings is of

35 Id at para 74. See also John v Afrox Oxygen Ltd (2018) 39 ILJ 1278 (LAC) which also dealt with a
protected disclosure based on an allegation that regrading of employees’ positions was not in
compliance with the employer’s legal obligation. The Court held at para 39: ‘… In the light of the
above, the appellant reasonably believed that the regrading process was done in a manner that
violated the legal obligation to which the respondent was bound and it was reasonable to have made
the disclosure …’.

21

no relevance in deciding this question. In fact, if the instruction to IDC’s
attorneys is considered, it also involved an investigation in order to decide
whetehr the applicant in fact had a case to answer and then to arrive at a final
charge sheet. It is certainly not beyond the realm of possibility that the
decision to discipline made on 31 August 2025 and charges only brought on 5
September 2025 for the first time, could be influenced by the disclosure. In
short, and until the charges are actually brought, who knows what they would
be and what may motivate them . That is why it is an important consideration
that the disclosure must pre- date the actual charges brought, for the simple
reason that if the charges already exist and have already been presented to
the employee, it can hardly be legitimately said that a disclosure filed after
that fact could have motivated the charges . In any event, as a matter of law,
disciplinary proceedings are only commenced when a charge sheet, or notice
to attend a disciplinary hearing containing the charges, however one may call
it, is issued to the employee.
[45] In Tshabalala v Moqhaka Local Municipality and Another
36 the Court dealt
with the Local Government: Disciplinary Regulations for Senior Managers ,
2010, which contained provisions prescribing when disciplinary proceedings
are commenced and when a disciplinary hearing is ins tituted, and the Court
had the following to say:
‘What this construction contemplates is a disciplinary process that is
commenced by the service of charges on the employee and which culminates
in the conclusion of a disciplinary hearing. A disciplinary hearing is an integral
part of the disciplinary process or proceedings; it does not constitute the
proceedings in themselves.’
[46] I can see no reason why this same reasoning cannot b e applied in casu, and
the requirement that the disclosure needing to pre -date the institution of the
disciplinary proceedings must mean that the disclosure must made before the

disciplinary proceedings must mean that the disclosure must made before the
charges are actually presented to the employee. What the employer may
contemplate before actually charging the employee does not constitute the
institution of disciplinary proceedings for the purposes of deciding whether an

36 (2025) 46 ILJ 590 (LAC) at para 7.

22

employee qualifies under this jurisdictional requirement. Therefore, I accept
that the applicant’s disclosure on 29 July 2025 pre- dates the institution of the
disciplinary proceedings against him by the IDC.
[47] One should also consider that on IDC’s own version in the answering affidavit,
Mdaka was actually aware, prior to the charges being proffered against the
applicant for the first time (being on 22 August 2025), that the applicant was
the one who raised the complaint against her.
[48] It is common cause that the applicant referred a dispute under section
188A(11) to the CCMA on 27 October 2025, and, as touched on above, the
CCMA has in fact convened arbitration proceedings in order to determine
whether or not to accept the referral and then conduct pre- dismissal
arbitration under section 188A.
[49] So where does all the aforesaid leave the internal disciplinary hearing in the
IDC? From the outset, it must always be remembered that Section 188A(11)
is part and parcel of Section 188A, which envisages pre-dismissal arbitration
by the CCMA in the stead of internal disciplinary hearings in the employer
itself. Or in other words, it is a substitute for an internal disciplinary hearing. 37
In ordinary circumstances, this process requires an agreement between the
employer and the employee. 38 However, section 188A(11) envisages that
section 188A pre- dismissal proceedings may be unliterally invoked by either
employer or employee, by way of a mere referral to the CCMA.39
[50] There is an important reason why this option of unilateral invoking of section
188A was afforded to the parties in the case of an alleged occupational

37 In SA Transport and Allied Workers Union and Others v MSC Depots (Pty) Ltd and Others (2013)
34 ILJ 706 (LC) at para 19, the Court said: ‘ … Section 188A holds the promise of the expeditious
resolution of disputes about employee conduct and the swift imposition of a fair sanction for any
proven misconduct …’.

proven misconduct …’.
38 Section 188A(1) refers to consent being given by the employee of such a process, or a collective
agreement providing for the same.
39 In Nxele v National Commissioner: Department of Correctional Services and Others (2018) 39 ILJ
1799 (LC) at para 30, the Court held: ‘ The use of the words ‘despite subsection (1)’ in s 188A(11)
clearly shows that the legislature deliberately stripped the employer of its discretion to unilaterally
trigger a s 188A hearing, subject to the employee’s consent. At the advent of s 188A(11), employees
may ‘require’ or ‘insist’ that the disciplinary enquiry be conducted in accordance with s 188A, termed
‘pre-dismissal arbitration’. The word ‘require’ in s 188A(11), given its ordinary meaning, means to
enjoin, oblige, constrain, command, decree, demand, dictate, direct, etc …’.

23

detriment as a result of a protected disclosure. This was succinctly described
in Nxele v National Commissioner: Department of Correctional Services and
Others40 as such:
‘Section 188A(11) was introduced into the LRA consequent to
the amendments to the LRA that came into effect in 2015. The object of this
provision is to avoid disputes where an employee claims that the holding of an
enquiry into allegations of misconduct, and suspension pending such an
enquiry, breach the provisions of the PDA. The section accordingly permits
either party to insist on an enquiry under s 188A with a view to reduce the risk
of collateral litigation, including High Court litigation, which had been common
in these circumstances.’
[51] And in Ntombela v Community Scheme Ombud Service (CSOS) and O thers41
the Court referred with approval to the following dictum from an unreported
judgment in Jacobs and Others v National Commissioner of South African
Police Service and Another:42
‘Obviously, section 188A(11) is not necessarily a scheme to challenge the
alleged occupational detriment in terms of the PDA, per se. However, it is a
mechanism aimed at avoiding collateral litigation where an employee claims
that, the holding of a disciplinary enquiry into allegations of misconduct or
suspension pending such an enquiry, offends the provisions of the PDA.
Whilst the PDA protects employees who make a protected disclosure,
“section 188A(11) aims to strike a balance between taking no action because
the person allegedly guilty of misconduct is a whistle-blower in terms of PDA
or allowing a disciplinary process, with the safeguard being that the
disciplinary process has to be done in a manner that is entirely independent of
the employer.
’

40 (2018) 39 ILJ 1799 (LC) at para 26. This judgment was upheld by the LAC in National
Commissioner: Department of Correctional Services v Nxele and Another [2025] 5 BLLR 472 (LAC).

Commissioner: Department of Correctional Services v Nxele and Another [2025] 5 BLLR 472 (LAC).
See also Letsoalo and Others v Minister of Police and Others (2016) 37 ILJ 1916 (LC) at para 26.
41 [2024] JOL 63608 (LC) at para 13.
42 At para 21 of such judgment.

24

[52] In the case of section 188A(11), what must be established by the applicant for
pre-dismissal arbitration to be accepted is the following , as appositely set out
in Mamodupi v Property Practitioners Regulatory Authority and Another:43
‘… The occupational detriment must be retaliatory in form and be connected
to the making of the protected disclosure. Accordingly, in my view the
provisions of the subsection are evocable if the following jurisdictional facts
are present in the order set out below:
45.1 The employee must make a protected disclosure;
45.2 Thereafter, the employer must subject the employee who already made
a protected disclosure to an occupational detriment;
45.3 Once so subjected, an employee must allege honestly and sincerely so
that a causal connection does exist between his or her protected disclosure
and the occupational detriment. Differently put, it is because of having made a
protected disclosure that an employer chose to respond by an occupational
detriment.
’
The Court in Mamodupi supra concluded:44
‘In my view if any of the above stated jurisdictional facts is absent, subsection
188A (11) cannot be invoked. Therefore, to my mind, the council; accredited
agency and the commission must refuse to entertain the request that an
inquiry be conducted in terms of this subsection if any of the jurisdictional
facts are absent….’
[53] In Foskor supra, even though the Court agreed in general with the
jurisdictional requirements as set out in Mamodupi, the Court warned that one
should be careful not to set the bar too high where it comes to the
requirement of establishing a nexus between the protected disclosure and the
conducting of the discipline, where it comes to deciding whether to accept
pre-dismissal arbitration under section 188A(11) . In other words, The Court in
Foskor believed these requirements cannot be said to mean that the applicant
party must actually prove that an occupational detriment based on a protected

party must actually prove that an occupational detriment based on a protected

43 (J68/23) [2023] ZALCJHB 19 (13 February 2023) at para 45.
44 Id at para 47.

25

disclosure at least prima facie exists. The Court in Foskor appositely held in
this respect:45
‘In Mamodupi the court articulated the test for proceeding with the enquiry as
being whether the employee has established the prima facie factual existence
of a contravention. I agree in general with this formulation, but not if it is
interpreted to mean that every element required to establish an unfair labour
practice relating to an occupational detriment must be established on a prima
facie basis to pass the threshold of s 188A(11). That dispute falls outside the
remit of an arbitrator deciding whether to hear the disciplinary or incapacity
case. The assessment of the employee’s bona fide belief as a precursor to
the statutory enquiry also does not require that level of scrutiny, because the
issue the arbitrator will decide is not the merits of their occupational detriment
claim, but the merits of the employer’s case of misconduct or incapacity …
’
[54] Therefore, it is not necessary for the employee, in this context, to also
establish that the disciplinary proceedings against him or her constitutes a
contravention of the PDA and that the employee therefore qualifies for
protection as a result. 46 As held in National Commissioner: Department of
Correctional Services v Nxele and Another47:
‘There is no dispute that Mr Nxele made a protected disclosure in 2018. The
issue on appeal is whether the Labour Court was correct in finding that he had
alleged in good faith that the holding of a disciplinary enquiry on the 2022
charges amounted to a contravention of the PDA and whether he was
therefore entitled to have the disciplinary proceedings converted into an
inquiry by arbitrator under section 188A(11) of the LRA.

[55] There is no obligation on an employee who seeks to rely on section 188A(11) to
prove that the holding of the disciplinary hearing constitutes a contravention of the
PDA. Rather, what is required is that the employee alleges in good faith that the

PDA. Rather, what is required is that the employee alleges in good faith that the
holding of an inquiry does so.’

45 Id at para 49.
46 This would entail, as set out in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey (2019) 40
ILJ 1224 (LAC) at para 56: ‘ … 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 …’.
47 [2025] 5 BLLR 472 (LAC) at paras 13 – 14.

26

[56] The aforesaid means , in my view, that it all practicably unfolds as follows , in
the case of this avenue being pursued by the employee. The employee refers
a dispute to the CCMA under section 188A(11), alleging that the current
disciplinary proceedings, which have not yet commenced but is immanent,
constitutes an occupational detriment as a result of a protected disclosure. 48
In making this referral, the employee must at the very least seek to establish
that the disclosure that has been made to his or her employer, and would
qualify as a protected disclosure under section 1 of the P DA. The employee
must also establish that the employer received such disclosure or was aware
of it. And finally, the employee must establish that he or she has a genuine
(bona fide), honest and sincere belief that a causal connection (nexus) exists
between his or her protected disclosure and the occupational detriment . The
Court in Independent Municipal and Allied Trade Union and Another v City of
Matlosana Local Municipality and Another 49 had the following to say where it
comes to establishing such a nexus:
‘… 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.
…’

But importantly, in Fisher supra, the Court decided:50
‘… it is up to the appointed arbitrator at the CCMA to first decide whether or
not the employee has established these jurisdictional pre-requisites, to
engage the jurisdiction of the CCMA under section 188A(11) , after

engage the jurisdiction of the CCMA under section 188A(11) , after
considering evidence in this regard presented by the parties . In other words,
the mere referral of the section 188A(11) dispute to the CCMA does not mean

48 In Mamodupi (supra) at para 51, the Court said: ‘ In practical terms, any request in terms of
subsection 188A (11) must be accompanied by the proof of the protected disclosure made, which
must predate the charge sheet – commencement of a disciplinary action …’.
49 (2014) 35 ILJ 2459 (LC) at para 77.
50 Id at para 35.

27

that it automatically substitutes the internal disciplinary proceedings with pre-
dismissal arbitration proceedings at the CCMA . It must be up to the arbitrator
to decide whether to permit that the proceedings under section 188A be
conducted. The important point is that this decision is left up to the arbitrator.
It should not be required of the Labour Court to decide this question. …’
[57] Therefore, I do not believe it is correct, as counsel for the IDC argued, that
this Court should enquire into the actual existence of a nexus between the
protected disclosure and the disciplinary proceedings against the applicant .
This Court cannot b e the gatekeeper for access to the CCMA under section
188A(11) and effectively decide this issue for it, which is what such an enquiry
would actually involve.51
[58] The further argument of the counsel for IDC, namely that to set the bar so low
would lead to the abuse of section 188A(11) by employees seeking to avoid
disciplinary proceedings against them, is also unsustainable, for the simple
reason that this is not how section 188A(11) works. I accept that there is an
unfortunate penchant by senior employees, especially in the public sector, to
seek to interdict disciplinary proceedings pending review challenges in medias
res. In such cases, because there is no basis to urgently decide a review
application and the conclusion of review applications takes years, the
employee in essence avoids being disciplined, and this is to be strongly
discouraged. As opposed to this, however, section 188A(11) simply does not
cause such an eventuality. What it does, effectively, is to substitute internal
disciplinary proceedings with disciplinary proceedings under the auspices of
the CCMA. And all this happens quickly. The case in casu is an example in
point. The referral by the applicant was made on 27 October 2025, and the
first sitting of the CCMA is on 17 November 2025. In these circumstances , it

first sitting of the CCMA is on 17 November 2025. In these circumstances , it
can hardly be said that an employee can abuse section 188A(11) to avoid
being disciplined, because all the employee will achieve is to have the
charges against him or her independently decided by the CCMA, however the
disciplinary proceedings itself nonetheless proceed without undue delay . In
short, to try and use section 188A(11) to prevent being disciplined will have no
point.

51 Fisher (supra) at para 35.

28

[59] In the end, when the proceedings then come before the arbitrator , and once
he or she has considered whet her the above jurisdictional requirements have
been met, then decides that there does not exist a qualifying protected
disclosure linked to an occupational detriment , then the arbitrator will decline
to convene actual pre-dismissal arbitration proceedings under section 188A ,
and the matter will simply revert back to the employer for a continuation of the
internal disciplinary hearing.52 However, and if the referral is accepted by the
arbitrator, it means that section 188A pre- dismissal arbitration proceedings at
the CCMA under section 188A(11) must happen, and this would be conducted
under the normal procedure applicable to all disputes dealt with by the CCMA
under section 188A. Therefore, in the case of an alleged misconduct dispute,
the appointed arbitrator must decide, on a balance of probabilities, whet her
the employee committed the misconduct with which or she has been
charged.53 The employer would obviously have to prove its case in this
regard, and present proper evidence to substantiate such a conclusion by the
arbitrator. If the arbitrator decides the misconduct i s not proven, then that is
the end of the matter , the employee is effectively finally acquitted, and no
further proceedings follow relating to these misconduct allegations , subject of
course to the employer’s right of review under section 145(1) of the LRA, as a
determination by an arbitrat or under section 188A is dealt with in the same
manner as an arbitration award by a CCMA arbitrator in any dispute under the
LRA.54 If the arbitrator accepts misconduct has been committed, then the
arbitrator must decide on an appropriate penalty (sanction) based on the
particular facts and considerations of fairness. The arbitrator may impose the

52 See Mudau v Metal and Engineering Industries Bargaining Council and Others (2013) 34 ILJ 663
(LC) at paras 16 – 17; Fisher (supra) at para 36.

(LC) at paras 16 – 17; Fisher (supra) at para 36.
53 In Mudau (supra) at para 19, the Court held: ‘… The task of arbitrators in terms of s 188A is slightly
different in that in that regard the task is to determine on a balance of probabilities whether an
employee has committed an offence for which he or she has been charged and, if so, whether there is
a basis in fairness to terminate the employment relationship between the parties. In other words, the
terms of reference for the arbitrator in terms of s 188A are, unless indicated otherwise, limited to
determining whether an employee has committed an offence and, if so, whether there exists a basis
in fairness to terminate the employment relationship …’.
54 In Solidarity on Behalf of Kruger v Transnet SOC Ltd t/a Transnet National Ports Authority and
Others (2021) 42 ILJ 852 (LAC) at para 18, it was held: ‘ Arbitration awards issued by an arbitrator in
terms of s 188A are final and binding. Such awards may be reviewed by the Labour Court in terms of
s 145(1) when issued by an arbitrator acting under the auspices of the CCMA or a bargaining council
…’. Similarly, in Mudau (supra) at para 20, it was said: ‘ An arbitration award made in terms of s 188A
is reviewable in terms of s 145 of the LRA …’. See also Maeta v Bidvest Services (Pty) Ltd and
Others (2024) 45 ILJ 2587 (LC) at para 35.

29

sanction of dismissal. Where the arbitrator finds that the employee be
dismissed, that is equally the end of the matter and the employee’s
employment is terminated, with no further challenges being permissible,
subject also only to the right of the employee to review the determination by
way of application to the Labour Court. In Kubheka v Member of the Executive
Council: Human Settlements (Gauteng Provincial Government) and
Another,55 the Court held as follows:
‘The s 188A of the LRA scheme catapults the disciplinary process to statutory
arbitration at the instance of the employee’s consent to forgo the right to the
security and comfort of both processes. Equally, the employer relinquishes its
prerogative to enforce the disciplinary measures to the arbitrator. The yield to
both parties is the impartial adjudicator, costs saving and expeditious
outcome.
’56
[60] What is important to bear in mind is that the arbitrator, when conducting the
proceedings under section 188A(11), does not decide whether the disciplinary
proceedings against the employee is irregular or unlawful or somehow
compromised because of the protected disclose , or whet her the employees
qualifies for protection under the PDA. 57 Simply put, the arbitrator does not
decide a protected disclos ure case, once the referral is accepted. 58 The
arbitrator cannot, for example, issue a ruling or determination that any
discipline against the employee be terminated because of the protected
disclosure, as the arbitrator has no jurisdiction to do so.59 All the arbitrator can
do is to conduct what is in essence an independent disciplinary hearing in
respect of the misconduct charges against the employee, and decide whet her

55 (2021) 42 ILJ 1497 (LC) at para 26.
56 Of course, and in the case of section 188A(11), no consent is required.
57 An employee would so qualify on the basis as described in Palace Group Investments (Pty) Ltd and

Another v Mackie (2014) 35 ILJ 973 (LAC) at para 15 , as follows: ‘… 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 …’.
58 Fisher (supra) at para 37.
59 See Feni v Pan SA Language Board (2011) 32 ILJ 2136 (LC) at paras 19 – 20; NEHAWU v Office
of the Premier: Limpopo Provincial Government 2022 JDR 1969 (LC) at paras 9 – 10.

30

these charges have substance and what penalty should be imposed on the
employee if the m isconduct was found to have been committed. This was
made clear in Foskor supra as follows:60
‘… the enquiry conducted by the arbitrator will be concerned only with
whether the employer proves the allegations of incapacity or misconduct and
any consequences which might flow from that. In the absence of such an
arrangement, the arbitrator conducting the misconduct or incapacity inquiry
has no authority to determine if the employee has suffered an occupational
detriment because they made a protected disclosure. Therefore, the
employee cannot use the procedure to vindicate their claim that the
disciplinary action of the employer amounts to an occupational detriment
under the PDA.’
[61] An employee believing that he or she is being subjected to an occupational
detriment as a result of making a protected disclosure, in the form of being
disciplined, should very carefully consider whether they wish to invoke section
188A(11). This is because of section 188A) (12), which reads: ‘ The holding of
an inquiry by a 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 an occupational detriment as contemplated in the Protected
Disclosures Act …’. What this means is that an employee, who may be found
by an arbitrator to have committed the misconduct with which he or she has
been charged, and then dismissed as a result, cannot pursue the
occupational detriment issue any further, as for example an automatic unfair
dismissal under section 187(1)(h) of the LRA. Where completely independent
and impartial arbitration, conducted by a body specifically designated for such
pursue by way of the LRA, determines that an employee be dismissed for
proven misconduct, that must finally dispose of any notion that the dismissal
is motivated by the employee making a protected disclosure.61

is motivated by the employee making a protected disclosure.61
[62] Therefore, pre-dismissal arbitration under section 188A(11) is a process that
completely substitutes the internal disciplinary hearing in all respects. The two

60 Id at para 45. See also Tsibani v Estate Agency Affairs Board and Others [2021] JOL 51625 (LC) at
para 72; Fisher (supra) at para 37.
61 Tsibani (supra) at para 63; Fisher.

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processes cannot exist side by side. Once the pre- dismissal arbitration
proceedings are convened, then internal disciplinary proceedings must
terminate. This was made pertinently clear in a number of judgments. First, in
Foskor supra it was held :62 ‘… If the request for a statutory hearing is
successful, it merely means that the internal incapacity or misconduct inquiry
is substituted with an arbitration presided over by a completely independent
chairperson …’. Next, and in the Labour Court judgment in Nxele supra, it was
stated:
63 ‘… The internal disciplinary enquiry that would have commenced and
is pending must terminate …’. The same sentiment was in expressed in SA
Broadcasting Corporation SOC Ltd v Phasha 64 as follows: ‘… The essence of
s 188A is to provide for a pre-dismissal arbitration which substitutes arbitration
before an independent arbitrator for a disciplinary enquiry …’. As lastly, as
succinctly said in Tsibani v Estate Agency Affairs Board and Others:65
‘Section 188A(11) does not envisage the holding of two parallel hearings.
Section 188A provides for an inquiry into allegations relating to an employee's
conduct or capacity and for such an inquiry to be conducted by an arbitrator,
in accordance with the provisions of the said section. If the inquiry relates to
allegations relating to an employee's conduct, the section 188A inquiry will
happen instead of an internal disciplinary hearing.’
[63] Returning to the case in casu, I am satisfied that the jurisdictional
requirements under section 188A(11), as discussed above, have been met.
This is because, firstly, the applicant had made a disclosure that qualifies as a
protected disclosure to the IDC. Secondly, there can be no denial that the IDC
was aware of it. It actually does not matter whether the applicant’s immediate
superior (Mdaka) was aware of it , but nonetheless, she clearly was aware
prior to the actual charges being proffered against the applicant . Thirdly, it is

prior to the actual charges being proffered against the applicant . Thirdly, it is
clear that the disclosure pre- dated the institution of the disciplinary
proceedings. And finally, there is a referral by the applicant of a dispute as
contemplated by section 188A(11) to the CCMA, and this referral has in fact
led to a set down date being scheduled at the CCMA for 17 November 2025.

62 Id at para 44.
63 Id at para 32. In Mudau (supra) at para 16, the exact same thing was said.
64 (2021) 42 ILJ 816 (LC) at para 24.
65 [2021] JOL 51625 (LC) at para 67.

32

[64] Considering all the aforesaid, the CCMA arbitrator must now be given the
opportunity to discharge his or her duties by deciding, following the
proceedings on 17 November 2025, whether the referral qualifies for
acceptance as being a bona fide allegation of a protected disclosure as
contemplated by section 188A(11), for the purposes of further deciding
whether or not to convene pre-dismissal arbitration proceedings under section
188A. It is in this context that the CCMA arbitrator is the one that must decide
if the nexus between the disciplinary proceedings and the protected
disclosure, which was the subject matter of much emphasis by the counsel for
the IDC, exists. This Court should decline to usurp these functions specifically
bestowed on the arbitrator, by not becoming involved in this determination. As
decided in Foskor supra:
66
‘The next issue is whether it is appropriate for the Labour Court to determine
whether or not the statutory enquiry can proceed? The request is made to the
CCMA or relevant bargaining council. It is the commissioner or panellist who
is called upon to preside in the enquiry and therefore is first seized with the
question whether the request has been properly made. As far as possible, this
court should not be usurping that primary role by determining the jurisdictional
question in the form of issuing a declarator before the request has even been
considered by the arbitral forum. This is exactly what this court would be
doing if it considered whether Matlala is entitled to the primary relief he seeks
…
’
[65] In summary, it is my view that the applicant has properly initiated a process
under the LRA which, if accepted by the CCMA, would serve to finally
terminate the internal disciplinary proceedings in the IDC , and substitute the
same with pre-dismissal arbitration under the auspices of the CCMA. It is also
true that the decision in this regard has not yet been made by the allocated

true that the decision in this regard has not yet been made by the allocated
CCMA arbitrator. All this being the case, it would be entirely inappropriate and
in my view in fact irregular to allow the IDC to proceed with the internal
disciplinary hearing, and as such, it must be interdicted. The applicant has

66 Id at para 50. See also Fisher (supra) at para 41.

33

thus shown a clear right in this respect. As succinctly stated in Ts ibani
supra:67
‘Section 188A(11) entitles an employee, who is about to be subjected to an
internal disciplinary process and who alleges in good faith that the intended
disciplinary hearing contravenes the PDA, to instead request an inquiry be
conducted in terms of section 188A. I see no reason why, if an employer,
under circumstances where the employee complies with the requirements of
section 188A(11), refuses to have the inquiry into the conduct or capacity of
the employee conducted in terms of section 188A, the employee would not be
entitled to approach this Court for an order interdicting the impending internal
disciplinary hearing and an order directing that the inquiry pertaining to the
employee’s conduct or capacity be conducted in terms of section 188A of the
LRA.
’
[66] If the internal disciplinary proceedings against the applicant in IDC are not
interdicted, and allowed to continue, the applicant would face the dubious
prospect of having to participate in an internal disciplinary hearing which could
have no lawful consequence and could rightly be considered to be terminated.
Secondly, this situation may then require and / or lead to all kinds of collateral
challenges and litigation to address the issue going forward, which is the very
thing that section 188A(11) seeks to avoid. And finally, it would also deprive
the applicant of the opportunity to avail himself of the protection of an
independent determination of the misconduct charges against him , where
internal disciplinary proceedings may be compromised as a result of the
protected disclosure he has made.
68 I believe the following statement made
by the applicant in the founding affidavit to be pertinent:
‘As the charged employee, I have absolutely no problems facing a disciplinary
hearing to answer the preferred charges, which I have confidence I will be
vindicated. I however do not believe that the current arrangement of my

vindicated. I however do not believe that the current arrangement of my

67 Id at para 64.
68 As said in Foskor (supra) at para 51: ‘Should the court then grant interim relief by suspending the
internal inquiry pending the decision of the CCMA commissioner whether to proceed with the s
188A(11) enquiry? If the court does not stay the internal enquiry, Matlala could be denied the
opportunity of exercising his right to request the statutory enquiry because, unless the request for the
statutory enquiry is accepted, the employer can proceed with the internal one in the meantime …’.
See also Fisher (supra) at para 43.

34

disciplinary hearing will result in the hearing being conducted fairly in view of
protected disclosures I have made against the Respondent and the apparent
and enormous influence of Ms Lydia Mdluli in the whole disciplinary case …’
[67] As opposed to the aforesaid prejudice faced by the applicant, the IDC will
suffer little harm. If the CCMA arbitrator ultimately decides the referral does
not qualify, the status quo is automatically restored, and the internal
disciplinary proceedings are then simply reinstated / reinstituted. And if the
CCMA accepts the referral, the IDC still has the opportunity to prove the
misconduct charges against the applicant, and if successful, secure his
dismissal. It will also have the added benefit of the nature of the pre-dismissal
arbitration proceedings under section 188A, which would finally dispose of the
protected disclosure issue as a basis to challenge any dismissal following on
such process.
[68] I must confess that I have difficulty in understanding why the IDC would not
be supportive of proceedings under section 188A of the LRA under the
auspices of the CCMA, considering what had transpired internally so far, as
this process would actually put paid to all the complaints by the IDC of the
applicant’s delaying / Stalingrad tactics. These proceedings are under the
control of the CCMA, which institution is well known for the expeditious
resolution of disputes. Considering that the Rules of the CCMA would apply,
delaying tactics the applicant may wish to pursue would be a dubious
prospect indeed.
[69] I am therefore satisfied that the applicant has made out a proper case of
undue prejudice should the IDC proceed with the internal disciplinary hearing,
despite his invoking of section 188A(11) of the LRA. Overall, considerations of
prejudice favour the applicant.
[70] Lastly, and on the issue of the availability of a suitable alternative remedy, this
has to a large extent already been dealt with, above. I am satisfied that no

has to a large extent already been dealt with, above. I am satisfied that no
suitable alternative remedy exists, as the process under section 188A(11) can
in itself be described as he appropriate alternative remedy available for issues

35

relating to occupational detriments based on protected disclosures.69 There is
really nothing else the applicant can do to assert his rights in this regard. The
only other option would be, should he be dismissed, to pursue an automatic
unfair dismissal claim , but this is reactive, and cannot serve to achieve the
objectives envisaged by section 188A(11). 70 I again refer to Foskor supra,
where the following sentiments were expressed:71
‘… Matlala has acted with speed in bringing this application, the prejudice to
the employer of the delay must be balanced against Matlala’s lost opportunity
of an inquiry before an arbitrator. Matlala has no other suitable way of
effectively preserving his right to have his request considered. Whatever the
merits of his request are, that should be determined by the forum considering
it and granting interim relief would facilitate that …
’
And in Gallocher v Social Housing Regulatory Authority and Another 72 it was
held:
‘Also, the nature of the effect of occupational detriments on employees is an
issue that cries out for urgent intervention by this court, especially where an
employee has not been dismissed. There is provision in the LRA for an
automatic unfair dismissal claim where an employee is dismissed due to an
occupational detriment, 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.’
Conclusion
[71] 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

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

69 See Letsoalo (supra) at para 27.
70 Fisher (supra) at para 47.
71 Id at para 52.
72 (2019) 40 ILJ 2732 (LC) at para 82.

36

considerations of prejudice favour him . The applicant’s application must thus
succeed.
[72] However, it must be reiterated that as yet, the CCMA had not finally decided
whether the applicant’s referral under section 188A(11) is to be entertained,
as the hearing to decide that is only scheduled for 17 November 2025. Any
interdict granted must account for the fact that it must lapse if the CCMA
decides not to accept such referral, and this matter then reverts back to an
internal disciplinary hearing. The relief afforded must therefore reflect that the
internal disciplinary proceedings be interdict ed pending the decision of the
CCMA. The relief must also cater for the fact that the internal disciplinary
proceedings must terminate of the CCMA accepts the referral and convened
pre-dismissal arbitration proceedings. The order I grant will reflect this.
Costs
[73] In terms of section 162(1), I have a wide discretion where it comes to the
issue of costs. Even though the applicant was successful, I am not inclined to
make any costs award against the IDC , considering that the parties have an
ongoing relationship with one another. I also consider that further proceedings
between them are a certainty , and in such context it would not be appropriate
to mulch either one with a costs order at this stage.73 I am also mindful of the
dictum of the Constitutional Court in Zungu v Premier of the Province of Kwa-
Zulu Natal and Others 74 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 the wide discretion I have
by making no order as to costs.
[74] For all the reasons as set out above, I make the following order:
Order
1. The application is heard as one of urgency in terms of Rule 38.

73 See Gallocher (supra) at para 85.
74 (2018) 39 ILJ 523 (CC) at para 25.

37

2. The internal disciplinary enquiry at the first respondent into the charges
of misconduct against the a pplicant, is interdicted and suspended
pending a decision by the arbitrator appointed by the second
respondent whether the disciplinary enquiry should be conducted in
accordance with Section 188A(11) of the Labour Relations Act.
3. In the event that the arbitrator appointed by the second respondent
decides that the disciplinary enquiry shall be conducted in accordance
with Section 188A(11) of the Labour Relations Act under the auspices
of the second respondent, the internal disciplinary enquiry at the first
respondent shall be considered and regarded to be finally terminated.
4. In the event that the arbitrator appointed by the second respondent
decides that the disciplinary enquiry shall not be conducted in
accordance with Section 188A(11) of the Labour Relations Act under
the auspices of the second respondent, the internal disciplinary enquiry
at the first respondent may recommence forthwith , and the interdict
granted in terms of paragraph 2 of this order shall automatically lapse.

5. There is no order as to costs.

_________________
S Snyman
Acting Judge of the Labour Court of South Africa





APPEARANCES:

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On behalf of the Applicant: Mr K J Selela of K J Selela Attorneys
On behalf of the First Respondent: Advocate T Manchu SC together with
Advocate S Lindazwe
Instrcuted by: Werksmans Attorneys