THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case No: 2025-209698
In the matter between:
MTHOKOZISI BASIL SHANGASE Applicant
And
UMDONI LOCAL MUNICIPALITY First
Respondent
MAYOR: UMDONI LOCAL MUNICIPALITY Second Respondent
SPEAKER: UMDONI LOCAL MUNICPALITY Third Respondent
Heard: 28 November 2025
Delivered: 10 December 2025
Summary : Jurisdiction of Labour Court to intervene in media s res based on
s4(1B) Protected Disclosures Act – Urgency – Requirements for a disclosure
to be protected in terms of s6(1) of the Protected Disclosures Act – Resolving
disputes of fact in urgent applications – Unconvincing evidence to refute
existence of prima facie right - Inferring an occupational detriment ‘on account
of’ a protected disclosure – Formalistic approach rejected.
JUDGMENT
2
RAMJI, AJ
Introduction
[1] This application was set down for hearing on Tuesday, 18 November 2025.
The applicant (Mr Shangase) is employed by the first respondent (the
Municipality). He was recently placed on precautionary suspension pending a
disciplinary investigation. The Protected Disclosures Act 26 of 2000 (PDA) is
central to this case.
[2] Mr Shangase approached this Court after referring an unfair labour practice
dispute to the relevant bargaining council for conciliation. He approached this
Court on an urgent basis seeking the following relief pending the final
determination of his unfair labour practice dispute:
2.1. The precautionary suspension be declared an occupation detriment in
terms of section 3 of the Protected Disclosures Act.
2.2. The respondents be restrained and interdicted ‘ from further subjecting
[Mr Shangase] to occupational detriments by harassing [Mr Shangase]
and intimidating [him].’
[3] It was apparent from the founding application that Mr Shangase actually
sought an order requiring the respondents to uplift the precautionary
suspension, alternatively for this Court to set aside that suspension.
[4] The respondents instructed counsel to appear at the hearing on 18 November
2025 clearly to get the matter postponed: no opposing papers were before the
Court and counsel for Mr Shangase c onfirmed that he had not received any
papers. It later emerged that a ‘ preliminary answering affidavit’ had been filed
on the evening of 17 November 2025. It had not been served and the
submission to me was that uploading pleadings to Court Online constitutes
service. It does not.
3
[5] I issued several directives for the filing of further pleading s and postponed the
matter for hearing to 28 November 2025.
[6] The respondents did not file further pleadings and relied on the so-called
preliminary answering affidavit , although the application was essentially
postponed based on the submission that they were only able to file a
preliminary affidavit. Clearly this was a delaying tactic, though this was not
apparent to me at the time.
[7] The applicant filed a replying affidavit on 27 November 2025 . The applicant
only filed an amended notice of motion on the day of the hearing, while the
hearing was underway . The amended notice of motion was served a day
earlier, but still out of the time given in my directives , which required that the
amended notice of motion be filed by 19 November 2025.
[8] Mr Shangase’s first prayer is now:
‘[P]ending the final determination of [his] dispute instituted in terms of section
186(2)(d) of the [LRA] in the South African Local Government Bargaining
Council and/or Labour Court in due course, the precautionary
suspension…be and is hereby uplifted forthwith.’
[9] Mr Shangase’s second prayer is for a prohibitory interdict against ‘ further
occupation detriments of whatever nature, including but not limited to
harassment, intimidation and threats of intimidation and/or physical violence.’
[10] He no longer seeks a declarator.
[11] The respondents filed written submissions on 27 November 2025.
[12] In written submissions, the respondents took issue with the amended notice of
motion, and the granting of leave to amend . Counsel for the respondent did
not pursue this point to any great degree in oral submissions – wisely,
because when I was granting Mr Shangase leave to amend the notice of
motion on 18 November 2025, the respondents’ counsel (a different advocate)
did not oppose this in any way. I also do not accept that, in the circumstances
of this case, the late service of the amended notice of motion has impaired the
4
respondents in answering Mr Shangase’s case – the founding affidavit was
unchanged, and leave was granted in front of the respondents’ counsel with
clear knowledge of the nature of the amendment that would be made. Leave
to amend and the subsequent amendment aligned with the purposes of
properly ventilating the real issue between the parties.1
[13] In short, none of the parties have conducted themselves perfectly in this
matter, but it is an urgent application and so cannot always sail smoothly. I am
therefore grateful to both legal representatives for not dwelling on technical or
procedural points in oral argument.
[14] I deal with the issues in the following order:
14.1. Background facts.
14.2. Jurisdiction.
14.3. Urgency.
14.4. The second prayer.
14.5. The first prayer.
Facts
[15] Mr Shangase is employed as a General Manager: Technical Services for the
Municipality. He is an employee falling within the scope of the Local
Government: Disciplinary Regulations for Senior Managers, 2010 (the
Disciplinary Regulations).2
[16] On 17 October 2025, the municipal council resolved to ‘commence a
disciplinary process against [Mr Shangase]’ On 21 October 2025, the acting
municipal manager, issued Mr Shangase with notice of the resolution , and
that the council was contemplating placing him on precautionary suspension.
The letter stated that the council ‘has reasons to believe that [Mr Shangase’s]
1 Registrar of Labour Relations v Chemical, Energy, Paper, Wood and Allied Workers Union and
Others (J815/2015) [2015] ZALCJHB 362 (9 October 2015) at para 13; Harley v Bacarac Trading 39
(Pty) Limited (2009) 30 ILJ 2085 (LC) at para 5.
2 GN 344 in GG34213 (21 April 2011).
5
presence in the workplace may be detrimental to the stability of the
municipality and further, [Mr Shangase’s] presence in the workplace may
interfere with potential witnesses and that [Mr Shangase] may commit further
acts of misconduct.’
[17] On 27 October 2025, Mr Shangase made detailed representations on why he
should not be suspended, which included addressing the fact that some of the
charges relate to event before he started working for the Municipality , or to
procurement in which he was not involved . The merits of these charges are
not for this Court to decide.
[18] Within a mere two days of receiving Mr Shangase’s representations on why
he should not be suspended , on 29 October 2025, the municipal council
resolved to put Mr Shangase on precautionary suspension with immediate
effect.3
[19] Mr Shangase has now been on precautionary suspension for six weeks.
[20] The suspension notice stated that the council had considered the Mr
Shangase’s representations ‘ and is not satisfied with [his] response on the
allegations of misconduct levelled against [him] as submitted by unions,
IMATU and SAMWU, respectfully’ (sic). It then cited Disciplinary Regulations
6(1)(a)(i), and 6(1)(b)(i) and (ii), i.e. an apprehension that he would jeopardise
the investigation, interfere with potential witnesses and commit further acts of
misconduct.
[21] On 31 October 2025, the applicant referred an unfair labour practice dispute
to the relevant bargaining council. The applicant alleges that his precautionary
suspension is an unfair labour practice in terms of section 186(2)(d). The
subsection provides that an unfair labour practice includes ‘ an occupational
detriment, other than dismissal, in contravention of the [PDA], on account of
the employee having made a protected disclosure defined in [the PDA]’.
3 The council is entitled to seven days to consider the representations.
6
[22] The applicant indicated in his founding application that he intends to exercise
his right to refer the alleged unfair labour practice dispute to the Labour Court
for adjudication in terms of section 191(13)(a) of the LRA which provides:
‘An employee may refer a dispute concerning an alleged unfair labour
practice to the Labour Court for adjudication if the employee has alleged that
the employee has been subjected to an occupational detriment by the
employer in contravention of section 3 of the [PDA] for having made a
protected disclosure defined in [the PDA].’
[23] It is in these circumstances that the applicant approaches this Court to uplift
his precautionary suspension so that he can return to work pending a final
determination by the Labour Court as to whether the precautionary
suspension is an unfair labour practice.
[24] The only change since the hearing on 28 November 2025 is that now, the 30 -
day conciliation period has expired, and a referral to arbitration or adjudication
may be made (if one has not already been made).
Jurisdiction
[25] The applicant is asking the Court to exercise its powers in terms of section
158(1)(a)(i) and (ii), alternatively (iii) of the LRA and to uplift his precautionary
suspension pending the final determination of his unfair dismissal dispute.
The applicant made it clear in his founding papers that he is not asking this
Court to fast -track the determination of his unfair labour practice dispute and
to decide finally is he suffered an unfair labour practice. He seeks interim
relief in the form of an interdict interfering with the employer’s chosen
disciplinary process.
[26] I raised the question of jurisdiction in the light of the Labour Appeal Court’s
(LAC) recent decision in Cibane and Another v Premier of Province of
Kwazulu-Natal (Cibane).4
[27] Cibane affects the ability of an employee seeking to interdict an ongoing
disciplinary process from applying for an interdict based on section 157(2) of
4 (2025) 46 ILJ 2587 (LAC).
7
the LRA, exceptional circumstances and grave injustice, i.e. the requirements
set out in Booysen v Minister of Safety and Security & others (Booysen)5
[28] The LAC in Cibane has interpreted Booysen restrictively:
28.1 Booysen does not give the Labour Court jurisdiction ‘ to interdict or
otherwise intervene in incomplete disciplinary proceedings, limited only
by the consideration of exceptionality’ with the effect of the Labour Court
usurping an arbitrator’s powers to determine fairness of disciplinary
proceedings.6
28.2 Booysen does not create a general rule that the Labour Court has
jurisdiction to intervene ‘to restrain any alleged illegalities, irregularities
or unfairness’ midway through disciplinary proceedings.’7
28.3 The Court’s jurisdiction ‘must be determined from the pleadings (and not
the substantive merits of the case), and by reference to a provision of
the LRA (or other legislation) that specifically confers jurisdiction on the
Court in relation to the dispute disclosed by the pleadings.’ 8
[29] What then is the applicant’s pleaded case and what are the specific provisions of
the LRA that confer jurisdiction on this Court to hear his matter?
[30] In Fisher v Ngcuka N.O. and Others (Fisher) ,9 the Labour Court was
concerned with an application to interdict disciplinary proceedings pending a
decision by an arbitrator as to whether a disciplinary hearing should rather be
conducted externally, in terms of section 188A(11) of the LRA.
[31] Applying Cibane, Snyman AJ held:
‘[T]he applicant has a right, under section 188A(11) of the LRA, to refer a
dispute to the CCMA for determination because she has alleged her being
disciplined constitutes an occupational detriment as a result of a protected
disclosure she has made.’ 10
5 (2011) 32 ILJ 112 (LAC).
6 Cibane above at para 22.
7 Cibane above at para 27.
8 Cibane above at paras 28 and 32.
9 (2025/189683) [2025] ZALCJHB 514 (28 October 2025).
10 Fisher above at para 11.
8
[32] The respondents’ counsel argued that this was a matter to be resolved in terms
of the unfair labour practice referral already made . Mr Shangase’s counsel
argued that the objection was no longer relevant because Mr Shangase was no
longer seeking a declarator. The respondents’ counsel accepted this.
[33] My concern was whether the new Cibane jurisdictional requirement of there
being a statutory provision conferring jurisdiction on the Labour Court to grant
Mr Shangase the relief he sought.
[34] In my view, the requirement is satisfied. Mr Shangase ’s claim to relief lies in
sections 4(1) read with 4(1B) of the PDA. Section 4(1) provides:
‘Any employee who has been subjected, is subjected or may be subjected, to
an occupational detriment in breach of section 3, or anyone acting on behalf
of an employee who is not able to act in his or her own name, may –
(a) approach any court having jurisdiction, including the Labour Court
established by section 151 of the Labour Relations Act, 1995 (Act 66 of
1995), for appropriate relief; or
(b) pursue any other process allowed or prescribed by any law’ (own
emphasis).
[35] Section 4(1B), which was added in 2017 after years of Parliamentary debate
arising from concerns that the wording of 4(1) of the PDA was not specific
enough in identifying which courts had jurisdiction over the PDA, and a view
that the Labour Court should have jurisdiction over instances of occupational
detriments. Section 4(1B)(c) provides:
‘If the court or tribunal, including the Labour Court is satisfied that
an employee or worker has been subjected to or will be subjected to
an occupational detriment on account of a protected disclosure, it may make
an appropriate order that is just and equitable in the circumstances, including-
…
(c) an order directing the employer or client, as the case may be, to take
steps to remedy the occupational detriment’ (own emphasis).
9
[36] Counsel for Mr Shangase referred me to Grieve v Denel (Denel),11 a judgment
pre-dating the 2017 amendments where Pillemer AJ confirmed this Court’s
jurisdiction to grant urgent interim relief:
‘The powers conferred upon this court are expressed in wide terms so that
any employee who has been subjected, is subject or may be subjected to an
occupational detriment in breach of section 3 may approach the Labour Court
for appropriate relief. Since conciliation is a pre -requisite before this court can
grant final relief, in matters of urgency where the occupational detriment will
occur unless the employer is interdicted and restrained, “appropriate relief”
must therefore include the power to grant an interim interdict pending the
resolution of the underlying dispute. The court only has jurisdiction to
determine the underlying dispute once the conciliation process has run its
course. This is nonetheless the type of case where the court clearly has the
power to order the status quo to be preserved or restored pending
determination of the main dispute.’12
[37] Denel, while helpful for other reasons, does not assist in satisfying the Cibane
requirement.
[38] I am, however, satisfied that this Court has jurisdiction to consider the
application to uplift the suspension of Mr Shangase because (a) section
4(1B)(c) of the PDA specifically confers jurisdiction on the Labour Court to
intervene in incomplete disciplinary proceedings, and (b) Mr Shangase has
alleged that disciplinary proceedings were instituted against him, and he was
placed on precautionary suspension because he made a protected disclosure.
[39] In Fisher, Snyman AJ treated both the Cibane and Booysen factors,
respectively, as jurisdictional requirements. I do not agree that the Booysen
factors are relevant at the stage of jurisdiction, but rather that they go to the
merits, and I deal with these later in the judgment.
Urgency
[40] Van Niekerk J (as he then was), held that the Labour Court ‘ has a wide
Urgency
[40] Van Niekerk J (as he then was), held that the Labour Court ‘ has a wide
discretion to determine the urgency with which applications should or should
11 (2003) 24 ILJ 551 (LC).
12 Denel above at para 9.
10
not be treated .’13 I am satisfied that the matter requires urgent attention and
that Mr Shangase has not delayed in bringing the application.
Relief cannot be sought in due course
[41] An assessment of urgency turns on whether an applicant will obtain
substantial redress in an application in the ordinary course. 14 Mr Shangase
has been placed on precautionary suspension. If the Municipality follows the
Disciplinary Regulations, as it ought to, then it must commence the Mr
Shangase’s disciplinary hearing within three months after the date of
suspension, subject to any extension by the municipal council. 15 His
suspension will likely be extended for the duration of the disciplinary hearing,
in whatever forum this takes place.
[42] Mr Shangase cannot bring this matter on the ordinary motion roll given that he
is fighting a suspension that ought, unless lawfully extended, to last three
months. Any relief granted in the ordinary course will be no relief at all when
Mr Shangase argues that he ought to be permitted to resume his duties at the
Municipality now.
[43] This is not yet a pronouncement that he should be permitted to resume his
duties now.
Applicant acted with urgency
[44] Mr Shangase was suspended on Wednesday 29 October 2025. Two days
later, he referred his suspension as an unfair labour practice dispute to the
bargaining council with a view to ultimately referring the dispute over the
fairness of his suspension to this Court in terms of section 191(13)(a) of the
LRA. On 5 November 2025, his attorneys filed this application, i.e. within a
period of three days following the referral to the bargaining council.
13 Harley above at para 11.
14 East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd & others at para 6.
15 Disciplinary Regulation 6(6).
11
[45] Mr Shangase afforded the respondents a reasonable , if not generous, period
to filed answering papers (a full week). The respondents did not comply with
the deadline set by the applicant.
[46] Mr Shangase has clearly acted with haste, while balancing the need for the
full exchange of pleadings. Counsel for the applicant directed me to
authorities that provide that the applicant generally has an entitlement to
prescribe the time periods for filing papers in urgent matters. The respondents
did not comply with the timeframes. I decided to allow the respondents to file
a late answering affidavit on the basis that having the matter fully ventilated
would assist this Court in coming to a decision.
[47] I turn now to Mr Shangase’s second prayer – to dispose of it.
The second prayer: An interdict against all future occupational detriments
[48] Mr Shangase’s second prayer is to interdict the respondents from subjecting
him to any future occupational detriments, none of which he has specified.
[49] In National Council of Societies for the Prevention of Cruelty to Animals v
Openshaw,16 the Supreme Court of Appeal (SCA) set out the established
position that –
‘[a]n interdict… is appropriate only where future injury is feared . Where a
wrongful act giving rise to the injury has already occurred, it must be of a
continuing nature or there must be a reasonable apprehension that it will be
repeated’ (own emphasis).
[50] While this case concerned conduct that had already taken place and whether
it was fair to infer from past conduct whether an applicant for an interdict had
a reasonable apprehension of future harm , it also speaks to the duty of an
applicant for an interdict to plead that future injury is feared.
[51] Mr Shangase may well fear future injuries in the form of occupational
detriments, but he did not plead to this. Even if he had made a general
averment, granting the second prayer would extend as far as interdicting the
16 2008 (5) SA 339 (SCA) at para 20.
12
Municipality from charging or dismissing Mr Shangase. Given the limited
circumstances in which this Court can interfere with an employer’s disciplinary
activity, the application papers give no basis for the far-reaching relief sought
in the second prayer.
[52] The second prayer is not granted.
[53] It is really the first prayer that is being contested.
The first prayer: Uplifting the precautionary suspension
Prima facie right
[54] Mr Shangase avers a prima facie, if not clear, right not to be subjected to an
unfair labour practice. He has such a right. This is not in dispute. Of serious
contention is whether the Municipality subjected him to an unfair labour practice
because it placed him on precautionary suspension during a disciplinary
investigation on account of him making a protected disclosure.
[55] In his founding papers, Mr Shangase clearly set out the chronology of events:
50.1. He was asked to sign off on an invoice so that payment could be
released to a service provider by another municipal employee (Mr X).
50.2. On 24 July 2025, he requested proof from Mr X that the work had been
done prior to signing an invoice to release payment, specifying the
documents that he needed.
50.3. He did not receive a response to his request and followed up on 11
August 2025, 17 August 2025 and on 23 September.
50.4. On 9 October 2025, he alleges that the acting municipal manager
‘sought to force him to sign the invoice .’ He claims that he refused to do
so unless instructed to in writing to which the acting municipal manager
allegedly responded that he ‘ does not want to be arrested .’ (This is
denied by the acting municipal manager.)
13
50.5. On 18 October 2025, the applicant formally reported Mr X to the acting
municipal manager in his capacity as accounting officer of the
municipality.
50.6. On 21 October 2025, he forwarded the report to the second respondent,
the mayor of the Municipality.
50.7. The applicant then, on the very same day, received correspondence
(referred to above) that the municipal council had resolved to institute
disciplinary proceedings against him and that was contemplating placing
him under precautionary suspension.
[56] The suspension is an occupational detriment. Further, t he respondents did not
challenge that this was a disclosure as defined in section 1 of the PDA. 17 They
also did not appear to dispute that the disclosure was made in good faith.
[57] Instead, the respondents’ case is that the disclosure was not protected in terms
of section 6 of the PDA, as Mr Shangase alleges. Second, they argue that if the
disclosure was protected, the suspension was not on account of Mr Shangase
making the protected disclosures.
First argument: disclosure was not protected
[58] Mr Shangase claims that he made a protected disclosure in terms of section
6(1)of the PDA, provides:
‘(1) Any disclosure made in good faith-
(a) and substantially in accordance with any procedure authorised by the
employee's or worker's employer for reporting or otherwise remedying the
17 A “disclosure” is defined as ‘[a]ny disclosure of information regarding any conduct of an employer,
or an employee of that employer, made by any employee who has reason to believe that the
information concerned shows or tends to show one or more of the following:
(a) That a criminal offence has been committed, is being committed or is likely to be committed;
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that
person is subject;
…
(g) that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be deliberately
concealed.’
14
impropriety concerned and the employee or worker has been made aware of
the procedure as required in terms of subsection (2) (a) (ii); or
(b) to the employer of the employee or worker, where there is no procedure as
contemplated in paragraph (a),
is a protected disclosure.’
[59] The respondents’ answer was that t he disclosure was not protected because
Mr Shangase failed to comply with the Municipality’s whistleblowing policy.
Therefore, the disclosure had not substantially complied with the procedure
established for the reporting of disclosures.
[60] The respondents provided a copy of what purports to be a whistleblowing
policy, which Mr Shangase in reply denied was a valid and effective policy.
They also provided an agenda and attendance register which they claim shows
that Mr Shangase was aware of the alleged whistleblowing policy.
[61] The approach to disputes of fact when interim relief is sought differs from that
when final relief is sought . Webster v Mitchell , 18 provides that , to resolve
disputes of fact in cases for interim relief, a Court is required –
‘to take the facts as set out by the applicant, together with any facts set out by
the respondent which the applicant cannot dispute , and to consider whether,
having regard to the inherent probabilities, the applicant should on those facts
obtain final relief at the trial. The facts set up in contradiction by the
respondent should then be considered. If serious doubt is thrown upon the
case of the applicant he could not succeed in obtaining temporary relief, for
his right, prima facie established, may only be open to “some doubt”. But if
there is mere contradiction, or unconvincing explanation, the matter should be
left to trial and the right be protected in the meanwhile, subject of course to
the respective prejudice in the grant or refusal of interim relief ’ (own
emphasis).
[62] The question is therefore whether the respondents’ averments that the
emphasis).
[62] The question is therefore whether the respondents’ averments that the
Municipality has a whistleblowing policy , and the supporting documents
annexed in support of the claim throw ‘ serious doubt’ on Mr Shangase’s case,
18 1948 (1) SA 1186 (W) at 1189 read with Gool v Minister of Justice & another 1955 (2) SA 682 (C) at
688C-F.
15
or whether they only leave his case open to ‘ some doubt’. If they cast serious
doubt on his claim (that he approached the acting municipal manager and then
the mayor in the absence of a whistleblowing policy), then his disclosure is not
protected, and his claim must be dismissed. If, however, they only cast some
doubt on Mr Shangase’s claim that the Municipality does not have any
whistleblowing policy in operation, then he must be granted his interim interdict
for he is only required to prove a prima facie right, and not a clear right.
[63] The respondent s’ averment and annexures that the Municipality has a
whistleblowing policy cannot cast serious doubt on Mr Shangase’s claim. On a
very generous interpretation of the supporting documents, it casts only some
doubt.
63.1. The professed whistleblowing policy annexed to the answering affidavit
lists the following on the cover:
63.1.1. Department: [Blank]
63.1.2. Policy name: Whistle Blowing Policy (sic)
63.1.3. Status: Policy
63.1.4. Date: [Blank]
63.1.5. Approved by: Council
63.1.6. Date approved: [Blank]
63.1.7. Date last amended: New Policy
63.1.8. Date for next review: [Blank]
63.1.9. Date published on intranet and website: [Blank]
63.2. It bears no signatures and if it was approved by the council, the council
resolution was not provided to fill in the gaps (literal gaps) on the cover
of the document.
63.3. If this was a final policy, this information would have been supplied as
the content of the policy provides details, for example, the date of next
review could have been completed because the document states that it
will be reviewed annually or as an when the need arises . Th e
responsible department could also have been provided because the
16
document states that the ‘[t]he Accounting Officer has the overall
responsibility for the implementation, maintenance and operation of this
policy and will be supported by Internal Audit Unit, Legal Services and
Human Resource Management and all General Managers.’
[64] This is not what valid and binding policy documents look like. This is what a
draft policy that is far from being adopted looks like.
[65] I therefore find that the respondents’ have n ot cast serious doubt on Mr
Shangase’s claim that he made a protected disclosure in terms of section 6(1)
of the PDA.
Disclosure to an alleged wrongdoer
[66] The respondents argued that Mr Shangase’s disclosure to the acting municipal
manager could not have been a protected disclosure because in these papers,
the acting municipal manager is among the officials who he accuses of serious
misconduct. The argument is that his claim that this was a protected disclosure
is therefore ‘far-fetched’.
[67] On the evidence, the disclosure to the acting municipal manager does not
prevent the disclosure from being pro tected. The argument misconstrues his
averment in respect of the acting municipal manager. Mr Shangase states that
the acting municipal manager told him to sign off on the invoice, and that when
he asked for the instruction in writing, the acting municipal manager simply
declined to write out the instruction. It is not alleged that he took things further
by threatening Mr Shangase in any manner. Ultimately, the acting municipal
manager, like Mr Shangase, refused his written approval for payment to be
released.
[68] I therefore find that Mr Shangase’s disclosure to the acting municipal manager,
(and even to the mayor, had this been pleaded 19) constitutes a protected
disclosure for purposes of section 6(1) of the PDA and for purposes of showing
a prima facie right.
19 See: Radebe and Another v Premier, Free State and Others (2012) 33 ILJ 2353 (LAC) at para 28.
17
No link between disclosure and discipline
[69] The respondents also argue that if the disclosure/s is/are considered protected,
then the disciplinary investigation and the related precautionary suspension
were not ‘on account of ’ any disclosure because both disclosures were made
after the decision to suspend Mr Shangase was taken by the council . The
council resolved to suspend Mr Shangase on 17 October 2025 . Mr Shangase
only e-mailed the acting municipal manager and the mayor on 18 October 2025
and 21 October 2025 respectively.
[70] Counsel for the respondent argued that ‘it does not matter’ that the notice of
suspension was issues after the disclosure , and that i t matters only that the
decision by the council to suspend was taken before the disclosure. I accept
this argument.
[71] However, the relevant municipal officials , Mr X, and those within their circles,
would have known for months, from Mr Shangase’s conversations and e -mails,
that Mr Shangase was refusing to sign off on the invoice and that he was
effectively investigating the procurement of services related to the invoice. The
response was that these were not disclosures for purposes of the PDA. In my
view, this is a formalistic approach that is at odds with previous decisions of the
Labour Court.
[72] Most recently, in Bangeni v Local Government SETA (Bangeni),20 Daniels J
rejected as ‘ far-fetched’ the employer’s contention that it was unaware of the
disclosure at the time of charging the employee. Although the disclosure to his
attorney took place after the employee was charged , Daniels J had regard to
the earlier actions taken by the employee in collecting and safeguarding the
evidence, and inferred that the employer would have both seen the employees
e-mails containing information relating to the intended disclosure, and have
known why the information was being collected.21
[73] Unfortunately, there was no meaningful discussion of the case or request to
[73] Unfortunately, there was no meaningful discussion of the case or request to
make further submissions on the approach in Bangeni.
20 (2025-096639) [2025] ZALCJHB 116 (28 August 2025).
21 Bangeni above at para 7.
18
[74] Another aspect of the respondents’ opposition on this point is that the
disciplinary investigation and the related precautionary suspension were not
caused by the disclosure because the disciplinary processes emanated from
complaints against Mr Shangase by two recognised trade unions made in
August 2023. The respondents provided a copy of the alleged complaint of the
trade unions.
[75] In Bangeni, Daniels J held that ‘ the court must remain alive to the possibility
that an unscrupulous employer could create another pretext for the
occupational detriment .’22 Daniels J also placed weight on the fact that the
employer ‘decided to continue with the hearing even after it became aware of
the disclosure’ and concluded that this ‘indicates that the disciplinary action is a
retaliatory measure motivated by the protected disclosure.’ 23 An occupational
detriment is prohibited even when it is ‘ partly on account of’ the employee
having made a protected disclosure.
[76] It is significant that the unions’ alleged complaints against Mr Shangase were
made on 20 August 2025 , well after he declined to sign the invoice without
supporting documents , and after he began asking questions around whether
the work had been done.
[77] The approach to sequence or chronology and drawing inferences in Bangeni is
not an outlier. In Feni v Pan South African Language Board (Feni), 24 van
Nierkerk J had regard to the ‘temporal coincidence between the applicant’s
lodgement of a formal grievance and the issuing of the letter of suspension’
when making his decision.25
Irreparable harm and balance of convenience/ prejudice
[78] Mr Shangase states that:
22 Bangeni above at para 25. See also: Modika v Industrial Development Corporation of South Africa
and Another (Modika) (2025/212698) [2025] ZALCJHB 529 (13 November 2025) at paras 43 – 44; 46
– 47.
23 Bangeni above at para 31.
24 (J 1010/10) [2010] ZALC 287 (1 June 2010).
– 47.
23 Bangeni above at para 31.
24 (J 1010/10) [2010] ZALC 287 (1 June 2010).
25 Feni above at para 7. See also: Denel above at paras 15 – 16; Radebe above at paras 33 – 34.
19
78.1 He will suffer irreparable harm in the form of stigma and reputational
damage, which could endure for years as his unfair labour practice
dispute is resolved.
78.2 Based on the irreparable harm that he will suffer, the balance of
convenience favours him and not the Municipality.
[79]
[80] The Muncipality states that Mr Shangase is on full pay.
[81] It is now well -established that even a precautionary suspension , and paid
suspension, causes irreparable harm to the suspended employee. 26 This is
particularly so given Mr Shangase’s senior position in the workplace, which he
can only perform effectively when respected by his subordinates and not held in
poor regard. Waiting for the expiry of the three-month period will not help him
recover from the stigma and reputational harm, but a court intervention may.
[82] Given the established case law, the respondents’ contentions are simply
inadequate. The Municipality does not explain why, given the nature of the
charges against Mr Shangase, and that they are ostensibly unrelated to his
disclosure regarding Mr X, why they cannot but in place mechanisms to prevent
him interfering with alleged witnesses, the investigator and the documents
relating to the investigation (which one assumes are being safely guarded by
the investigator).
[83] The respondents made one further sweeping claim on irreparable harm, which
relates to the balance prejudice:
‘A suspension forms part of the disciplinary processes of, not only the
[Municipality], but any public and private entity in the Republic of South Africa.
Quite simply, it cannot be alleged that the following of a disciplinary process
can ever be suggested to cause irreparable harm to an employee. If this were
26 South African Post Office Limited v Jansen and Others (2008) 29 ILJ 2793 (LC) at paras 27 and 39;
Feni above at para 8; SA Municipal Workers Union on behalf of Matola v Mbombela Local
Municipality (2015) 36 ILJ 1341 (LC) at paras 28 to 29.
20
the case, it would be quite impossible to discipline, alternatively, attempt to
discipline an employee in the workplace.’
[84] Counsel for the respondents did not pursue this argument in oral submissions –
perhaps because the submission is unsustainable and at odds with the
constitutional right to fair labour practices and the powers of the Labour Court
under section 158 of the LRA . The fact that the respondents saw fit to make
such an averment is an indictment on how they view their duties and powers as
employers.
[85] I am therefore satisfied that Mr Shangase has shown that he faces irreparable
harm in the workplace and his general professional life, and that the balance of
convenience favours protecting his interests over the vaguely articulated and
frankly unconvincing interests of the respondents.
No effective/suitable alternative remedy
[86] Mr Shangase states that he has no available alternative remedy, having tried in
vain to motivate against his precautionary suspension. The referral of an unfair
labour practice dispute for conciliation and later for either arbitration (or more
likely, adjudication) does not alleviate his current position of not being at work.
[87] The respondents’ case on this point is that b eing subjected to an occupational
detriment on account of having made a protected disclosure is also an unfair
labour practice in terms of the LRA. It was argued that this gives Mr Shangase
an alternative remedy.
[88] Would an adjudication in the ordinary course, while the applicant remains on
suspension, be an effective alternative to the interdict? The answer must be no.
First, it would keep him away from the workplace and suffering the harm to his
reputation and professional standing , and second, it would effectively prevent
this Court playing a part in preventing the mischief which the PDA seeks t o
stop.
[89] This leaves the Booysen considerations of exceptional circumstances and
grave injustice.
Exceptional circumstances and grave injustice
21
[90] The time sensitivity – that Mr Shangase will suffer irreparable harm before he
obtains relief in the ordinary course – speaks to the exceptional circumstances
and grave injustice.
[91] The principle established in Booysen inclines a court to avoid granting what
amounts to status quo relief for the following reasons articulated by
Tlhotlhalemaje J:
‘[T]his court should respect employers’ prerogative to institute disciplinary
proceedings against its employees, and should be wary of unwarranted
intrusion, lest the expeditious resolution of internal disputes is frustrated. A
second consideration is that the LRA’s dispute resolution system remains
intact and should be utilised by employees who are aggrieved by internal
disciplinary processes. It has repeatedly been stated that this Court should
not regarded as the first port of call when employees complain about internal
disciplinary processes, and it is not its function to micromanage those
processes. Most importantly, the court must equally guard against the abuse
of its own process by employees whose primary objectives are not noble but
are merely intended to frustrate internal disciplinary processes in order to
escape from having to answer to allegations of serious misconduct.’27
[92] I agree, but this is not the type of case that these concerns speak to. This is an
interdict that has been brought by someone who has shown, prima facie, that
he has been placed on precautionary suspension, with little to no substantial
reasons, coincidentally after he started raising questions around possible
irregular expenditure. The reasons for placing Mr Shangase on precautionary
suspension were simply pulled from the Disciplinary Regulations, with no
further explanation as the why they applied to his case. It is also not, on the
face of it, apparent why the reasons quoted are ‘objectively justifiable’.28
[93] The exceptional circumstances and grave injustice, considered in the light of
[93] The exceptional circumstances and grave injustice, considered in the light of
the irreparable harm and the absence of an effective alternative remedy, are
therefore apparent.
Costs
27 Madonsela v Legal Practice Council and Others (2025) 46 ILJ 2664 (LC) at para 24.
28 Feni above at para 6.
22
[94] The respondents’ written submissions did not address a specific direction from
the Court that the respondents provide submissions on why the respondents
should not bear the applicant’s wasted costs occasioned by the postponement
on 18 November 2025. This came out of a refusal to tender costs.
[95] Costs have been awarded against employers where employees have had to
approach this Court to interdict internal disciplinary hearings , and to uplift unfair
and unlawful suspensions.
[96] In this case, the disciplinary process and the unfair labour practice dispute are
both in their very early stages , with the conciliation period for the unfair labour
practice dispute only just having ended.
[97] I make no order as to costs in the hope that the main dispute and all disputes
arising from it can be resolved between the parties who currently have an
ongoing employment relationship.
Questions from the Court
[98] Having read the papers, I was rigorous in my questioning because I was
seeking the assistance of counsel in deciding this matter . I was told several
times that I had ‘made up [my] mind’ and that the matter therefore could not be
taken further. My questions were aimed at taking the matter further in respect of
my areas of concern. Counsel could have therefore assisted.
[99] One would also expect legal representatives to be pleased, and not to state
that they are ‘disappointed’, when the Court shares its initial views or its
concerns. This is an opportunity for representatives to advance their clients’
cases fully and to persuade the Court, which is the job.
[100] After these statements were repeatedly made, I referred to a recent judgment
handed down by Moshoana J in the Gauteng Division of the High Court on the
duties of counsel, where he referred the matter to the Legal Practice Council for
consideration. I share the relevant portions in the hope that the dicta are useful:
‘Counsel makes submissions to a Court with an honest intention to (a)
‘Counsel makes submissions to a Court with an honest intention to (a)
persuade a Court to find in favour of his or her client and (b) assist the Court
23
to arrive at a just decision. Statements like [the] “judge has made up his or
her mind” and “submissions are made for what it is worth” are in direct
contradiction with the duties of counsel.
When a Court engages counsel and probes the legal correctness of some of
the submissions counsel makes, a Court does not “make up its mind” but a
Court seeks to apply the law correctly to the case. It is only when a Court
delivers its judgment that a Court makes up its mind. Before then, it is
unprofessional and inappropriate for counsel to cast an aspersion that a judge
has made up his or her mind.’29
Order
1. The matter is heard as one of urgency.
2. The relief (interdict) sought in paragraph 1 of the amended notice of
motion is granted.
3. This interdict shall lapse if the Applicant does not refer the unfair labour
practice dispute to the CCMA or Labour Court within 10 days of this
order, unless the Applicant has already made the referral.
4. There is no order as to costs.
_______________________
B Ramji
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv S Luthuli
Instructed by: Siza Inc.
29 Nkwanyana and Another v Open Mic Productions (Pty) Ltd and Another (098393/2023) [2025]
ZAGPPHC 422 (9 May 2025) at paras 42 to 43.
24
For the Respondent: Adv J P Pretorius
Instructed by: Mdledle Inc.