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[2026] ZALCCT 81
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Abrahams v National Student Financial Aid Scheme (NSFAS) (C463/2023) [2026] ZALCCT 81 (26 May 2026)
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THE
LABOUR COURT OF SOUTH AFRICA
IN
CAPE TOWN
Case
No
:
C 463/2024
(1)
Reportable: NO
(2)
Of interest to other Judges: NO
26
May 2026
In the matter between:
ALFRED
ALEKHINE ABRAHAMS
Applicant
And
NATIONAL
STUDENT FINANCIAL AID
SCHEME
(NSFAS)
Respondent
Summary:
(Automatically unfair dismissal for making a protected disclosure
– Dismissal for ostensibly breaching ICT policy of employer,
simply means by which employee was dismissed for making a protected
disclosure – Employee awarded reinstatement and full
costs)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This matter concerns whether the dismissal
of the applicant, Mr A Abrahams (‘Abrahams’) constituted
an automatically
unfair dismissal in terms of section 187(1)(h) of
the Labour Relations Act 66 of 1995 (“the LRA”), read
with the Protected
Disclosures Act 26 of 2000 (“the PDA”).
[2]
The respondent contends that the dismissal
was for misconduct arising from a breach of its Information and
Communication Technology
(‘ICT’) policies. The applicant
contends that the dismissal was in truth a reaction to a protected
disclosure he made
to the Special Investigating Unit (“the
SIU”).
[3]
The dispute essentially turns on
identifying the true reason for the dismissal and, more particularly,
whether there exists a causal
nexus between the disclosure he made
and the disciplinary action taken against him.
[4]
Abrahams testified for himself and NSFAS
also only led one witness, Mr O. Selekisho (‘Selekisho’),
a Senior Manager
in Data Management. NSFAS was going to call other
witnesses, but they were unavailable at the time of the trial.
Background
[5]
On 1 February 2020, Abrahams was employed
by the respondent (‘NSFAS’) as a Facilities Manager,
Corporate Services in
its head office in the Western Cape.
[6]
Abrahams’s responsibilities included
overseeing the organisation’s buildings, lease agreements, and
space planning requirements,
effectively acting as the “end
user” representative in procurement processes. In that
capacity, he became centrally
involved in planning NSFAS’s
relocation from its existing offices and began engaging with the
Department of Public Works
to determine appropriate space
requirements. In the course of this process, he calculated that the
organisation required approximately
6,000 to 7,200 square metres of
office space, which included provision for future growth. He
consistently emphasised to management
that urgent decisions were
needed because the existing lease was to expire soon.
[7]
He began to have serious concerns as the
procurement process unfolded. He explained that despite his
calculations and input, a tender
specification was issued for
approximately 8,000 square metres of space, a figure which he could
not justify and which was not
aligned with the NSFAS’s actual
needs. Significantly, he stated that this tender was nonetheless
approved and advertised
without being signed off either by him, as
the end user, or by his immediate line manager, which he regarded as
a fundamental procedural
irregularity. He further criticised the
timelines imposed on the project, explaining that management expected
a new office to be
identified, procured, and occupied within a period
of roughly six to seven months. In his experience, such a timeframe
was entirely
unrealistic, particularly in the public sector where
consultation, tender processes, and stakeholder engagement typically
take
much longer.
[8]
Abrahams testified that he repeatedly
raised these concerns through formal channels. He prepared reports
for executives and board
committees, highlighted risks in internal
submissions, and even recorded these issues in formal risk registers.
Nevertheless, he
testified that his warnings were largely ignored.
When bids were eventually evaluated, he noted that one building
option, which
was more affordable and largely ready for occupation,
clearly would have been the preferable bid. However, the Foreshore
building,
which ultimately won the tender was effectively an empty
“white box” requiring extensive fitting-out before it
could
be used. He testified that the decision to award the contract
to this building was surprising and inconsistent with the comparative
advantages of the competing options.
[9]
The consequences of this decision,
according to Abrahams, were significant. He explained that although
NSFAS began paying rent for
the bare premisses of approximately R2
million per month from March 2022, whilst the building remained
largely unoccupied for several
months because it was not ready for
use. Only a small fraction of staff worked at the new premises during
that period. He further
testified that, shortly after the building
was occupied, a proposal was made to extend the lease for an
additional five years,
effectively turning what had originally been a
short-term arrangement into a much longer and more costly commitment.
In his view,
this development reinforced his belief that irregular
and wasteful expenditure was being incurred.
[10]
By that stage Abrahams said he had
exhausted all available internal reporting mechanisms. He had issued
reports and memoranda to
management and raised the issue with
executives, included concerns in reports to board structures, and
utilised formal governance
processes, but to no effect.
[11]
After the President authorised the Special
Investigating Unit (SIU) to investigate irregularities at NSFAS
sometime around the end
of August 2022, Abrahams approached the
organisation’s internal forensic audit lead, Ms. A Basson, with
his concerns. She
advised him to convey his disclose his worries
about fruitless and wasteful expenditure directly to the SIU. Acting
on this advice,
he met with SIU investigators and provided them with
an account of the procurement process and the irregularities he had
identified.
[12]
To obtain support for his disclosures,
Abrahams gathered documentary evidence, including emails relating to
the office procurement.
On 13 September 2023, he sent these emails to
his personal email address and then forwarded them to the SIU. He
explained that
he did this out of fear of victimisation and in order
to preserve evidence for potential future proceedings, as he believed
he
might be targeted once his disclosures became known.
[13]
He further testified that sending documents
to personal email addresses was common practice within the
organisation, particularly
during the COVID-19 period, and that he
did not believe he was breaching any policy at the time.
[14]
Nothing transpired following his
disclosures until shortly after 15 February 2023 when the leader of
the United Democratic Movement
and Member of Parliament, Mr B
Holomisa, publicly revealed the same information which Abrahams had
conveyed to the SIU. The very
next day, NSFAS launched an
investigation into how the information was leaked. The
investigation of email correspondence
emanating from NSFAS was
narrowly focussed on searching for all correspondence containing only
the terms the “office and
building move”.
Unsurprisingly, this revealed the emails Abrahams had sent to the
SIU. The investigation was finalised
by 26 February 2023.
[15]
Just under a month later on 23 March 2023,
NSFAS subsequently charged Abrahams with misconduct for breaching its
ICT policies by
sending confidential information to his personal
email account. NSFAS was at pains to emphasise that he was not
charged for disclosing
information but solely for breaching its ICT
policies. A breach of ICT policies could result in merely being
suspended from access
to the system to dismissal. Abrahams was found
guilty and dismissed in May 2023. Quite apart from claiming that the
real reason
for his dismissal was the information he disclosed, he
maintained that the relevant ICT policies had never been properly
explained
or “socialised” to employees, that similar
conduct by other staff members had not been disciplined, and that
only the
emails to himself connected to his disclosure were singled
out, whereas others were ignored.
[16]
The central thrust of his evidence,
therefore, was that his dismissal was not genuinely about a breach of
policy but was instead
a pretext for retaliation. He argued that the
timing and focus of the disciplinary action demonstrated a causal
link between his
protected disclosures and his dismissal. In support
of this, he pointed to the fact that only the seven emails sent in
connection
with the SIU disclosure formed the basis of the charges,
despite similar email practices being widespread within the
organisation.
[17]
Finally, Abrahams testified that subsequent
findings by the Auditor-General confirmed many of the irregularities
he had identified,
including failures in the procurement process,
lack of proper approvals, and the risk of fruitless and wasteful
expenditure. He
stated that this report effectively validated the
concerns he had repeatedly raised prior to making his disclosure.
Taken as a
whole, his evidence sought to establish that he had acted
in good faith as a whistleblower, that the procurement process had
been
materially flawed, and that his dismissal was causally linked to
his efforts to expose those irregularities.
[18]
The employer called Selekisho, a senior
manager in data management, who also performed network security
functions. His evidence
was directed at explaining the purpose, scope
and importance of NSFAS’s ICT and information
security
policies, and why the conduct attributed to Abrahams constituted a
serious breach. Unlike Abrahams
’
evidence,
which traversed the procurement process in detail, this witness did
not deal with the building tender at all. Instead,
his evidence
concentrated narrowly on data governance, security risks, and policy
compliance within the organisation.
[19]
He began by explaining his role, which
involved ensuring that organisational data is properly sourced,
stored, and used to support
decision
making.
In that context, he emphasised that data is regarded as a critical
organisational asset, and that its protection is essential
for the
integrity of the organisation
’
s
operations. He testified that if data is compromised or not properly
secured, this can undermine decision
making
and expose the organisation to risk.
[20]
Expanding on this, Selekisho explained the
rationale behind NSFAS’s ICT and information
security
policies. These policies, he said, exist to ensure that all
information and systems are protected from internal and external
threats. Importantly, he stressed that responsibility for data
security does not rest solely with management or IT personnel.
Rather, it is a shared responsibility across all employees, who are
required to comply with the rules governing the use and protection
of
organisational information.
[21]
He then described how these policies are
implemented in practice. A key routine is that whenever employees log
onto the NSFAS system,
they are required to acknowledge the
organisation’s ICT security policy by clicking an “OK”
prompt. He argued
that this served as a continuous reminder that
employees are bound by the policy and must comply with it, and that
failure to do
so may result in disciplinary consequences.
Consequently, employees could not claim ignorance of the policy.
[22]
Another central plank of his testimony
dealt with the specific prohibition on forwarding work-related emails
to personal accounts,
which formed the basis of the case against
Abrahams. Referring to the information
security
policy, he explained that employees are expressly instructed not to
forward work emails to personal email addresses, as
this creates a
risk of
“
data leakage.
”
He elaborated that NSFAS can only properly secure
and control information while it remains within its own systems and
infrastructure.
Once data is sent to a personal email account, it
leaves the organisation’s controlled environment, and NSFAS
loses the ability
to monitor access to that information or ensure its
security. In those circumstances, the organisation cannot know who
might access
the data or how it might be used.
[23]
Selekisho’s testimony sought to
establish that forwarding internal documents to a personal email
account is not a trivial
or technical violation, but a serious breach
of data governance principles, with inherent risks to confidentiality
and organisational
integrity.
[24]
He further testified that disciplinary
consequences for such conduct are consistent with organisational
practice and gave an example
of another employee who had been
dismissed for similar conduct involving copying work-related WhatsApp
messages to himself.
Although he did not provide detailed
knowledge of that matter, the purpose of this evidence was to counter
Abraham’s claim
that during COVID employee routinely sent work
emails to their own email addresses, without facing disciplinary
action, and to
challenge his assertion that he had been uniquely
targeted.
[25]
Under cross
examination,
however, certain limitations in his evidence became apparent. It
emerged that he was not employed at NSFAS at the relevant
time when
the events in question occurred, so he had no direct involvement in
the events leading to Abraham’s dismissal.
He was also pressed
on whether the ICT policy acknowledged by users when logging in
clearly and expressly prohibited sending emails
to personal accounts
and struggled to find direct expression of the rule against sending
work emails to private addresses in the
login page. The
prohibition was more explicit in the second, more detailed
information
security policy, rather
than in the general acceptable
use
policy displayed at login.
[26]
In re
examination,
the employer clarified that the two policies must be read together.
The general policy requires employees to comply
with all
information
security policies, while
the detailed policy contains the specific prohibition and states that
breaches may lead to disciplinary
action, including dismissal.
Selekisho confirmed that, read together, these policies do provide a
warning that non
compliance could
result in disciplinary consequences.
Evaluation
The Parties’ Cases
[27]
NSFAS’s case is that the dismissal
was entirely based on the applicant’s breach of ICT rules. It
further contends that,
because it did not know that the applicant had
made a disclosure to the SIU, the dismissal could not have been on
account of such
disclosure.
[28]
Abrahams’ case is that the breach of
ICT policy was inseparable from the disclosure itself and that the
investigation which
led to his dismissal was triggered by the very
information he had disclosed.
The reason for Abraham’s
dismissal
[29]
The
determination of the true reason for dismissal requires the
application of well-established principles. In
SA
Chemical Workers Union v Afrox Ltd
[1]
the Labour Appeal Court held that the enquiry entails both factual
and legal causation, viz:
‘
[32]
The enquiry into the reason for the dismissal is an objective one,
where the employer's motive for the dismissal will merely
be one of a
number of factors to be considered. This issue (the reason for the
dismissal) is essentially one of causation and I
can see no reason
why the usual twofold approach to causation, applied in other fields
of law, should not also be utilized here
(compare S v Mokgethi &
others
1990 (1) SA 32
(A) at 39D-41A; Minister of Police v Skosana
1977 (1) SA 31
(A) at 34). The first step is to determine factual
causation: was participation or support, or intended participation or
support,
of the protected strike a sine qua non (or prerequisite) for
the dismissal? Put another way, would the dismissal have occurred if
there was no participation or support of the strike? If the answer is
yes, then the dismissal was not automatically unfair. If
the answer
is no, that does not immediately render the dismissal automatically
unfair; the next issue is one of legal causation,
namely whether such
participation or conduct was the 'main' or 'dominant', or
'proximate', or 'most likely' cause of the dismissal.
There are no
hard and fast rules to determine the question of legal causation
(compare S v Mokgethi at 40). I would respectfully
venture to suggest
that the most practical way of approaching the issue would be to
determine what the most probable inference
is that may be drawn from
the established facts as a cause of the dismissal, in much the same
way as the most probable or plausible
inference is drawn from
circumstantial evidence in civil cases.’
[30]
In
Kroukam
v SA Airlink (Pty) Ltd
[2]
the LAC emphasised that the enquiry is not confined to the employer’s
stated reason but extends to determining the real or
dominant cause
of dismissal:
‘
[91]
… I am of the view that, where, as in this case, the reason or
reasons for the dismissal of an employee comprise one
or more reasons
that would render the dismissal automatically unfair and one or more
reasons that would not render the dismissal
automatically unfair but
the reason or reasons that would render the dismissal automatically
unfair can be said to be the dominant
reason or reasons, the
dismissal is automatically unfair.’
[31]
In
TSB
Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey
[3]
the
court emphasised that where more than one reason exists, the presence
of a protected disclosure as one of them is sufficient
to render the
dismissal automatically unfair.
‘
[94]
In terms of s 3 of the PDA, an employee may not be subjected to any
occupational detriment by his or her employer on account,
or partly
on account, of having made a protected disclosure. The phrase ‘on
account of’ means ‘owing to’,
‘by reason of’
or ‘because of the fact that’. The phrase is used to
introduce the reason or explanation
for something — for the
purposes of the present discussion, the reason or explanation for the
occupational detriment. The
word ‘partly’ means ‘not
completely’, ‘not solely’, ‘not entirely’
or ‘not
fully’. A finding that an employee was subjected
to an occupational detriment on account of having made a protected
disclosure
will be based on a conclusion that the sole or predominant
reason or explanation for the occupational detriment was the
protected
disclosure; whereas a finding that an employee was
subjected to an occupational detriment partly on account of having
made a protected
disclosure will be to the effect that the protected
disclosure was one of more than one reason for the occupational
detriment.
[95]
Section 3 of the
PDA thus casts the net wide. If there is more than one reason for a
dismissal, the PDA will be contravened if any
one of the reasons for
the dismissal is the employee having made a protected disclosure. The
wide scope of protection is consistent
with the purposes of the PDA
which addresses important constitutional values and injunctions
regarding clean government and effective
public service delivery
.
In City of Tshwane Metropolitan Municipality v Engineering Council of
SA & another, the Supreme Court of Appeal favoured
an
extensive approach to interpreting the provisions of the PDA to give
proper effect to its broad purposes, namely the encouragement
of
whistleblowers in the interests of accountable and transparent
governance. It stated:
‘
A
further difficulty with this approach to the nature of information
under the PDA is that its narrow and parsimonious construction
of the
word is inconsistent with the broad purposes of the Act, which seeks
to encourage whistleblowers in the interests of accountable
and
transparent governance in both the public and the private sector.
That engages an important constitutional value and it is
by now
well-established in our jurisprudence that such values must be given
full weight in interpreting legislation. A narrow construction
is
inconsistent with that approach. On the construction contended for by
Mr Pauw the threat of disciplinary action can be held
as a sword of
Damocles over the heads of employees to prevent them from expressing
honestly held opinions to those entitled to
know of those opinions. A
culture of silence rather than one of openness would prevail. The
purpose of the PDA is precisely the
opposite.’
[32]
More
recently, in
Railway
Safety Regulator v Kekana
[4]
,
the LAC reaffirmed that:
‘
[38]
It is by now trite that an employee must establish a prima facie case
that he or she has made a protected disclosure and that
there is a
causal link between his or her dismissal and that protected
disclosure, and in event of that being established, and
in order to
escape liability, the employer would have to show that the employee
had been dismissed for a fair reason (such as misconduct)’
[33]
The difficulty in this matter arises from
the respondent’s contention that, because it did not know that
the applicant had
made a disclosure to the SIU, the dismissal cannot
have been causally connected to it.
[34]
This argument is premised on an unduly
narrow understanding of causation.
[35]
The evidence establishes the following
sequence. The applicant disclosed information relating to alleged
irregularities. That disclosure
involved the transmission of
documents to the SIU. The information contained in those documents
subsequently got into the hands
of Mr Holomisa. When Holomisa
publicised it this triggered concern, if not consternation, within
the respondent. NSFAS management
immediately instructed the ICT
department to conduct an investigation into how the information
contained in Mr Holomisa’s
letter to SIU and the Priority Crime
and Investigation Directorate, which was information only known to
NSFAS employees, could
have leaked.
[36]
It was not a general investigation into
breaches of the ICT policy relating to sending emails from work to
staff’s personal
emails. The data search parameters used were
fragments of the inculpatory information referred to in Holomisa’s
disclosure.
Its purpose was plainly to determine where the the leak
had originated. The search naturally brought to light the emails
Abrahams
had sent to himself containing the information in question,
[37]
He was then disciplined and dismissed
ostensibly not for disclosing the damning information to the SIU, but
for simply breaching
the ICT policy.
[38]
This sequence of events leading to his
dismissal is analogous to the causal connections examined in other
the decisions of the Labour
Appeal Court.
[39]
In
Kroukam
,
the employee was dismissed for misconduct, but the Court found that
the misconduct charges were the manifestation of an earlier
dispute
arising from protected conduct. The causal link was not broken by the
temporal or formal separation between the protected
conduct and the
disciplinary charges.
[40]
In
Dorey’
s
case, the employee’s mode of engaging in disclosures was itself
relied upon as misconduct. The Court held that such conduct
could not
be divorced from what was disclosed and that dismissing an employee
for conduct inherent in the act of disclosure did
not sever the
causal link between the disclosure and the dismissal.
[41]
In
Kekana
,
the disclosure gave rise to internal conflict which in turn resulted
in disciplinary proceedings. The Court still recognised that
the
causal chain may operate indirectly through intervening steps.
[42]
NSFA’s argument that it lacked
knowledge of his disclosure to the SIU does not, in my view, defeat
Abrahams’ claim.
[43]
The authorities make it clear that the
enquiry is into the real cause of the dismissal, not the employer’s
characterisation
of it or its awareness of the precise route through
which the relevant conduct manifested. An employer may act on the
consequences
of a disclosure without appreciating the precise form it
took. Where the dismissal results from the exposure of information
attributable
to the employee, the causal link remains intact.
[44]
To hold otherwise would allow an employer
to avoid the consequences of section 187(1)(h) by focusing narrowly
on the immediate trigger
for disciplinary action while disregarding
the broader sequence of events. Such an approach would undermine the
purpose of the
PDA, which is to encourage the disclosure of
wrongdoing by protecting employees against reprisals.
[45]
In the present case, the forwarding of
emails to a personal account was not an independent act of misconduct
which happened to coexist
with the disclosure. It was the very means
by which the disclosure was carried out.
[46]
The ICT investigation was not initiated in
the interests of identifying breaches of the email policy. It was
directed at identifying
who was responsible for the transmission of
very specific information exposing corruption in NSFAS. Abrahams was
identified not
as a result of a general audit of staff emailing their
private email addresses, but as a result of an email search for
emails with
a specific content sent to an external email address. The
policy against emailing one’s own private email address was
then
disingenuously invoked to punish him for conduct he should have
been commended for.
[47]
It is an inescapable inference to draw from
the evidence that, but for the publication of the information
Abrahams had disclosed
to the SIU, there would not have been an
investigation to determine the source of the leak and his dismissal
would not have ensued.
His disclosure set off the chain of causation
which led to the action taken against him, even if it’s action
was delayed
until a third party publicised what he had disclosed.
[48]
Accordingly, all the evidence points to the
overwhelming cause of his dismissal being his disclosure of the
information of various
act of wrongdoing on the part of NSFAS
management.
Conclusion
[49]
In my view, the applicant has established
that his disclosure formed an integral part of the causal chain
leading to his dismissal.
The breach of ICT policy relied upon by the
respondent cannot be isolated and treated separately and
independently from that chain.
The respondent has not discharged the
burden of proving that the dismissal was for a reason unrelated to
the disclosure.
[50]
Abraham’s dismissal was therefore
automatically unfair in terms of section 187(1)(h) of the LRA.
Relief and Costs.
[51]
Abrahams seeks reinstatement to the date of
his dismissal. There is every reason to grant him full relief in the
circumstances.
[52]
On the question of costs, the court is
dealing with someone who was dismissed for performing in responsible
manner with a
bona fide
intention of bringing to light wrongdoing, once management had failed
to act on the information he provided to it. As a matter
of fairness
and law, I see no reason why he should have to bear any of his legal
costs of fighting to overturn his dismissal, which
was the result of
a disciplinary process instituted with the ulterior motive of
punishing a genuine whistle-blower.
Order
1.
The Applicant’s dismissal by the Respondent was for
making a protected disclosure in terms of the
Protected Disclosures
Act 26 of 2000
and accordingly was automatically unfair under
section187(1)(h) of the
Labour Relations Act, 66 of 1995
.
2.
The Respondent must reinstate the Applicant, with full
retrospective effect to the date of his dismissal on 23 May 2023 and
must
pay him his remuneration from the date of his dismissal to the
date of his reinstatement, within fifteen (15) days of him reporting
for work.
3.
The Respondent must pay the Applicant’s legal costs on
an attorney own client scale.
R
Lagrange
Judge of the Labour
Court of South Africa
Appearances:
For the
Applicant:
M Aggenbach
Instructed
by:
Cato Attorneys
For
the Respondent: T
Manchu SC
Instructed
by:
Cheadle, Thompson & Haysom Inc.
[1]
(1999) 20
ILJ
1718
(LAC)
[2]
(2005) 26
ILJ
2153 (LAC )
[3]
(2019) 40 ILJ 1224 (LAC)
[4]
(2024) 45
ILJ
284
(LAC)