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[2026] ZALCJHB 175
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Jonker v Department of Public Works and Roads North West and Others (2026/084057) [2026] ZALCJHB 175 (27 June 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no:
2026-084057
(1)
Reportable: No
(2)
Of interest to other Judges: No
27
June 2026
In the matter between:
PETER
TEBOGO JONKER
Applicant
and
DEPARTMENT
OF PUBLIC WORKS AND ROADS
NORTH
WEST
First Respondent
HEAD OF DEPARTMENT OF
PUBLIC WORKS AND
ROADS NORTH
WEST
Second Respondent
MEC DEPARTMENT OF
PUBLIC WORKS AND ROADS
NORTH
WEST
Third Respondent
SELLO RAMONG
N.O
Fourth Respondent
GENERAL PUBLIC SERVICE
SECTOR BARGAINING
COUNCIL
Fifth Respondent
Heard
:
23 April 2026
Delivered
:
27 June 2026
Summary:
An urgent application for
interim relief relating to a disciplinary hearing pending the
determination by the CCMA whether it will
hold an inquiry in terms of
section 188A(11) of the LRA. Requirements for interim relief
satisfied, and the employee has demonstrated
exceptional
circumstances justifying the court’s intervention in
media
res.
JUDGMENT
GANDIDZE,
J
Introduction
[1]
On
28 January 2026, the applicant, Mr Jonker, was served by his
employer, the Department of Public Works and Roads North West (the
Department), with a notice to attend a disciplinary hearing to answer
charges of misconduct. Believing the charges were brought
against him
because he had made protected disclosures, Jonker invoked section
188A(11) of the Labour Relations Act
[1]
(LRA), which provides as follows:
‘
188A
Inquiry by arbitrator
(11) Despite
subsection (1), if an
employee
alleges in good faith that the
holding of an inquiry contravenes the Protected Disclosures Act, 2000
(Act 26 of 2000), that
employee
or the employer may require
that an inquiry be conducted in terms of this section into
allegations by the employer into the conduct
or capacity of the
employee.’
[2]
The Department informed Jonker that it was
not interested in an inquiry by an arbitrator under section 188A(11)
of the LRA and that
it would proceed with a disciplinary hearing. The
Chairperson of the disciplinary hearing ruled that the disciplinary
hearing would
proceed, hence the current application, in which Jonker
seeks to interdict the disciplinary hearing pending the Bargaining
Council's
decision on his request for a section 188A(11) LRA inquiry.
[3]
The Department, the Head of the Department
of Public Works and Roads North West (HoD), and the MEC of the
Department of Public Works
and Roads North West (MEC) (collectively
referred to as the respondents) filed a notice of opposition to the
application. However,
the answering affidavit was deposed to on
behalf of the respondents and the Chairperson of the disciplinary
hearing. That position
maintained in the heads of argument.
[4]
The General Public Service Sector
Bargaining Council (Bargaining Council) was cited as a party because
a request had been made to
it to convene a section 188A(11) LRA
inquiry into allegations of misconduct against Jonker. The Bargaining
Council issued the Department
an invoice for a section 188A(11)
inquiry on 13 March 2026.
Background facts
[5]
Jonker has served as the Department’s
Chief Mechanical Engineer since his appointment in April 2020. His
duties include procuring
all construction plant and equipment
(Transversal Contract RT57); registering all equipment on eNATIS and
licensing; repairing
and maintaining all equipment (Transversal
Contract RT46); managing fuel cards; buying bulk diesel (Transversal
Contract RT70);
and managing plant hire.
[6]
While the respondents allege that the
current dispute arose in late 2025, Jonker alleges that the matter
dates back to September
2022, following Mr Kgantsi's appointment as
HoD on 1 August 2022. Accordingly, the history of the matter will be
traced to 2022.
[7]
In September 2022, the HoD convened a
departmental meeting. After the meeting, Jonker received a telephone
call from the HoD’s
Secretary, instructing him to meet the HoD
at the Corner Lifestyle restaurant. On arrival, Jonker was met by the
HoD and an African
male, Mr Modiselle, whom the HoD introduced as a
long-time friend and a businessman who supplies diesel to several
government departments.
The HoD instructed Jonker to attend all sites
with diesel tanks alongside Modiselle, discuss the Department’s
challenges,
and allow Modiselle to propose solutions. Thereafter, the
HoD left the restaurant, and Jonker and Modiselle stayed behind to
discuss,
as instructed. Modiselle runs an entity known as Reakgona
Petroleum (RP).
[8]
Subsequently, Jonker and Modiselle visited
several sites.
[9]
The HoD then instructed Jonker to prepare a
technical report on doing business with RP for transmission to the
District Directors.
The report was prepared in October 2022, but the
Chief Director did not approve it.
[10]
The HoD instructed Jonker to present the
report at a Management Committee meeting chaired by the HoD. After
the meeting, the HoD
instructed Jonker to revise the report in
consultation with the Finance Manager so it could be presented to the
Executive Management
Committee (EMC), chaired by the MEC. Jonker
alleges that he and the Finance Manager agreed that the report would
not ‘enter
the field of supply chain management and decide who
would install and supply diesel tanks and diesel.’
[11]
Before the presentation to the MEC, the HoD
instructed Jonker to include in the report that the Transversal
Contract RT70 would
be cancelled and that a contract would be entered
into with RP, including the installation of diesel tanks and their
equipping
with monitoring systems. Jonker did not comply with the
instruction, and the MEC refused to approve the report.
[12]
Following this presentation to the EMC, the
HoD removed some of Jonker’s functions and reassigned them to
the Chief Financial
Officer (CFO). The CFO became the proxy for
eNATIS and for the Wesbank Transversal Contract RT46 (Yellow Fleet).
The Acting Chief
Engineer was assigned to procure tractors at the
district level, rather than at the provincial level as previously.
Jonker alleges
that he was effectively sidelined.
[13]
Around March 2023, Jonker came across a
report dated March 2023 about a user outcry over the quality of
diesel supplied by RP, which
allegedly damaged the engines of state
vehicles.
[14]
On 27 March 2023, Jonker wrote to the
Director of Legal Services, Ms Eva King (King), and copied his direct
supervisor, the Chief
Director of Transport Infrastructure, regarding
the HoD's alleged irregular conduct in removing some of Jonker’s
functions,
because of the HoD’s intentions to do business with
RP. Jonker requested that King provide a legal opinion on the matter.
[15]
On 29 March 2023, Jonker was served with a
notice of intention to suspend him in relation to an investigation
into the Yellow Fleet.
[16]
In another e-mail dated 30 March 2023,
Jonker requested that King investigate the HoD’s ties to RP.
[17]
Believing that the intention to suspend him
was linked to his correspondence with King, Jonker visited the HAWKS
offices in April
2023 and raised the same issues he had raised with
King.
[18]
In the same month, Jonker also wrote to the
HoD, stating that he believed the intention to suspend him stemmed
from the e-mails
he had sent to King regarding the HoD’s
interests.
[19]
Security removed Jonker from the premises
on 24 April 2023, and on 25 April 2023 he was served with the notice
of suspension.
[20]
On 15 May 2023, Jonker escalated the matter
to the MEC by lodging a grievance against the HoD.
[21]
On 26 June 2023, the HoD invited Jonker to
meet the investigators regarding his suspension. The suspension was
lifted after Jonker
filed an urgent application in the North West
High Court. He returned to work on 7 August 2023. Upon his return,
Jonker requested
that his functions relating to the Yellow Fleet be
restored.
[22]
On 14 August 2023, Jonker was informed that
he would be temporarily assigned to another directorate pending the
investigation's
finalisation.
[23]
In the same month, Jonker was contacted by
the HAWKS to give an affidavit deposing to the allegations he had
made about RP, and
he did so.
[24]
On
8 September 2023, he was served with a notice of a disciplinary
inquiry into the Department’s Yellow Fleet. On 12 September
2023, Jonker invoked section 188A of the LRA by referring the dispute
to the Bargaining Council. He also referred a dispute to
the
Bargaining Council under section 186(2)(d) of the LRA
[2]
.
[25]
The dispute was unsuccessfully conciliated
on 9 October 2023.
[26]
In October 2023, Jonker’s attorneys
sent correspondence to the Department, demanding that his functions
be restored because
the Department had failed to prove his misconduct
at the September 2023 hearing. It does not appear that the demand was
acceded
to.
[27]
In February 2024, Jonker wrote to the
National Treasury requesting information about the Bulk Fuel Supply
Transversal Contract RT70,
which was provided in April 2024. Jonker
then forwarded the information to the HAWKS.
[28]
In October 2024, Jonker was served with an
amended charge sheet and a new disciplinary notice in relation to a
hearing scheduled
for 28 October 2024. In response, he referred a
second unfair labour practice dispute to the Bargaining Council,
which led to the
postponement of the disciplinary hearing. The
dispute was unsuccessfully conciliated on 4 December 2024.
[29]
The disciplinary hearing resumed in
December 2024.
[30]
In January 2025, Jonker once again invoked
section 188A(11) of the LRA in respect of the ‘amended charge
sheet’.
[31]
In February 2025, the HAWKS contacted the
National Treasury about their investigation.
[32]
In June 2025, Jonker received
correspondence from the Department confirming that the position to
which he had been redeployed did
not exist within the structure and
had no job description.
[33]
In August 2025, Jonker was instructed by
the HoD to attend an interview with Elidna Genesis Consulting
(Elidna), forensic investigators
appointed to investigate ‘leakage
of sensitive information’ and the ‘defamation of the
character of the HoD’,
based on information circulating on
social media. Jonker met with Elidna on 19 August 2025. The Elidna
report concluded that Jonker
was a person of interest regarding the
information leak, as he had claimed to be a whistleblower.
[34]
In October 2025, Jonker was invited to make
representations as to why he should not be charged. In response, he
stated that he was
a whistleblower.
[35]
On 4 November 2025, Jonker was informed of
an intention to suspend him.
[36]
On 28 January 2026, he was notified to
attend a disciplinary hearing on 5 February 2026 to face charges,
inter alia
,
of making serious and unsubstantiated defamatory allegations and
circulating unsavoury and untruthful information about the HoD.
He
was suspended at the same time.
[37]
On 30 January 2026, Jonker invoked section
188A(11) of the LRA.
[38]
The disciplinary proceedings, scheduled to
begin on 5 February 2026, were postponed to 9 March 2026 at the
initiator's request.
[39]
On 9 February 2026, Jonker received a
letter from the Department raising several issues, including a denial
that he was a whistleblower
and advising that the disciplinary
hearing would proceed on 9 March 2026.
[40]
On 10 February 2026, Jonker sent an email
to the Bargaining Council, the HoD, and the Department stating that,
as a whistleblower,
he has recourse if the disciplinary hearing
proceeds.
[41]
On 9 March 2026, a pre-hearing was held.
Jonker raised the issue that he had invoked section 188A(11) of the
LRA and therefore the
Chairperson should recuse himself. While Jonker
alleges that the Chairperson ruled that the disciplinary hearing
would proceed
on 14 and 15 April 2026, the Department’s case is
that the postponement was by agreement.
[42]
On 13 March 2026, the Bargaining Council
issued an invoice to the Department for the section 188A(11) LRA
inquiry.
[43]
On 7 April 2026, Jonker received a letter
dated 30 March 2026 from the Department, stating that the Department
was not interested
in a section 188A LRA inquiry and would proceed
with the hearing on 14 and 15 April 2026.
[44]
Jonker responded on 8 April 2026,
expressing concern about the Department’s position and the
Chairperson’s impartiality.
[45]
The following day, Jonker’s attorneys
wrote to the Department seeking an undertaking that the disciplinary
hearing would not
proceed, failing which they would file an urgent
application to this court.
[46]
On 10 April 2026, the Director of Legal
Services wrote to Jonker’s attorneys, among other things,
disputing Jonker's status
as a whistleblower.
[47]
On 13 April 2026, Jonker attorneys advised
that they had been instructed to file an urgent application and
sought an undertaking
from the Department that the disciplinary
hearing would not proceed on 14 April 2026.
[48]
Jonker alleges that on 14 April 2026, the
‘matter effectively collapsed’ and that the Chairperson
postponed the hearing
to 23 April 2026. The Department alleges that
on 14 and 15 April 2026, Jonker threatened the Chairperson and was
abusive towards
the Head of Legal Services, accusing him of
corruption, and that he had to be escorted from the premises by
security.
[49]
The
current application was filed on 14 April 2026. The Department agreed
to adjourn the disciplinary hearing until 24 April 2026,
the day
after the application is argued. Oral arguments were heard on 23
April 2026, and the court issued an order staying the
disciplinary
proceedings pending this judgment. The delay in handing down the
judgment is regrettable and is partly due to the
volume of paper
involved
[3]
. In addition,
when the court was finalising the judgment, it learned of a decision
of the Labour Appeal Court (LAC) handed
down in March 2026, which
overturned a judgment of this court on which Jonker had based his
application. The parties had not referred
to it in their heads of
argument.
[50]
Returning to the background facts, and for
completeness, Jonker alleges that the HAWKS informed him that they
had completed their
investigation and that the matter is with the
National Prosecuting Authority (NPA) for a decision.
[51]
Jonker also alleges that he reported the
matter to the Special Investigations Unit (SIU) shortly after filing
a complaint with the
HAWKS in April 2023, and disputes the
Department's assertion that he first reported it to the SIU in
February 2026.
Urgency
[52]
On
behalf of Jonker, the submission was made, with reference to the
decision of this court in
Fisher
v Ngcuka NO and Others
[4]
(Fisher),
that
the issue of an occupational detriment following a protected
disclosure is in itself an issue that carries with it an inherent
quality of urgent intervention, where section 188A(11) LRA inquiry
has been invoked. It is also said that the relief sought is
to some
extent time-sensitive, and unless the court intervenes, Jonker will
suffer a gross injustice in that the right envisaged
in section
188A(11) would become academic if the matter is placed on the
ordinary roll. With reference to
Chung-Fung
(Pty) Ltd and Another v Mayfair Residents Association and Others
[5]
,
the
submissions were,
inter
alia
,
that a matter is urgent if a litigant could not obtain substantial
redress in due course, that the threshold for absence of redress
is
lower than that of irreparable harm
[6]
,
and that a court should be slow to refuse to hear a matter where a
litigant will be deprived of substantial redress in due course.
Jonker disputes that he will obtain substantial redress at a hearing
in due course, and submits that there is no substitute for
a section
188A(11) inquiry. It was also submitted that the respondents were
afforded five court days to file an answering affidavit,
they took
six days to file it, and therefore, they had sufficient opportunity
to place their case before the court.
[53]
Insofar
as the urgency was alleged to be self-created, Jonker submitted, with
reference to
Tlhakudi
v President of South Africa Mr Mamatela Cyril Ramaphosa and others
[7]
that even where a party delays in approaching the court, the court
has discretion to hear the matter as urgent, the main consideration
being whether the litigant can obtain substantial redress in due
course.
[54]
The respondents contend that the urgency
was self-created. They criticise Jonker's inaction following the
Department’s letter
dated 9 February 2026. They also contend
that, after being informed that the disciplinary hearing would
proceed on 14 and 15 April
2026, Jonker took nine days to send a
letter demanding an undertaking.
[55]
The
respondents’ submission regarding self-created urgency is
unpersuasive when one has regard to the sequence of events since
the
issue of the notice to attend the disciplinary on 30 January 2026.
Jonker acted reasonably by first engaging the Chairperson
to explain
that he had requested that the Bargaining Council conduct a section
188A(11) inquiry, that he was awaiting a response,
and that the
disciplinary proceedings should be terminated for that reason.
[8]
The Bargaining Council issued the Department with an invoice on 13
March 2026, and it was not unreasonable for Jonker to expect
the
Chairperson to favourably consider his request and to postpone the
disciplinary hearing pending the Bargaining Council's decision.
[56]
Moreover, the main consideration is whether
Jonker can obtain substantial redress in due course if the court does
not intervene
at this stage. He seeks interim relief pending the
Bargaining Council’s decision on whether it will conduct a
section 188A(11)
LRA inquiry into the misconduct charges against him.
Unless the court hears the matter as a matter of urgency, the
Department will
continue with the disciplinary hearing, even though
the Bargaining Council must still consider Jonker’s request. He
has elected
to exercise a right afforded to him in terms of section
188A(11) of the LRA, and he is entitled to make that election. Jonker
cannot
obtain substantial redress in due course.
[57]
Therefore, a case for urgency has been
made. The next issue is whether this court has jurisdiction to hear
the application.
Jurisdiction
[58]
Section
188A(11) of the LRA permits an employee or an employer to request
that an inquiry into allegations of misconduct be conducted
by an
arbitrator, where an employee, in good faith, alleges that a
disciplinary hearing against him is in breach of the
Protected
Disclosures Act
[9
]
.
[59]
Section
3(1)
of
the (PDA) states as its object the protection of an employee who
makes a protected disclosure from any occupational detriment;
the provision of remedies for those who suffer an occupational
detriment in consequence of having made a protected disclosure,
and
the provision of procedures to enable an employee, in a responsible
manner, to disclose information concerning
improprieties
by his or her employer.
[10]
[60]
Section 4
of the PDA
reads
as follows:
"(1) Any
employee
who has been subjected, is subject or may be subjected, to an
occupational detriment
in breach of
section 3
, may -
(a) approach any court
having jurisdiction, including the Labour Court established by
section 151 of the Labour Relations Act, 1995
(Act No 66 of 1995),
for appropriate relief;’
[61]
Therefore, section 188A(11), read together
with the PDA, confers express jurisdiction on this court to hear
matters concerning alleged
breaches of the PDA. Jonker seeks to
interdict disciplinary action, which he contends amounts to an
occupational detriment.
[62]
Case
authority has also held that this court has jurisdiction to intervene
in disciplinary proceedings. In
Booysen
v Minister of Safety and Security and Others
[11]
,
the
court 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.’
[63]
In
Member
of the Executive Council for Education, Northwest Provincial
Government v Gradwell,
[12]
the
court confirmed that applications for interim relief pending the
outcome of unfair labour practice disputes will be entertained
by
this court only ‘in extraordinary or compellingly urgent
circumstances’ and that where an employee harbours a reasonable
apprehension of harm, the appropriate remedy is to seek interim
relief pending the outcome of the unfair labour practice proceedings.
[64]
In
Palace
Group Investments (Pty) Ltd & Another v Mackie
[13]
(Mackie)
,
the Labour Appeal Court determined an appeal against a judgment of
this court which granted interim relief to an employee pending
the
outcome of an unfair labour practice dispute that the disciplinary
hearing that the employee would be subjected to constituted
an
occupational detriment. The court stated this:
‘
[13]
It is trite that the granting of an interim interdict pending
the outcome of further proceedings is an extraordinary
remedy within
the discretion of a court, exercised upon a consideration of all the
facts.
[65]
Therefore, apart from the fact that the PDA
expressly provides that Jonker can approach this court for
appropriate relief, the LAC
has held that this court has jurisdiction
to intervene in disciplinary proceedings. What remains to be
determined is whether Jonker
has made out a case for the relief he
seeks.
[66]
Jonker seeks interim relief. He seeks to
interdict the disciplinary hearing pending the Bargaining Council's
decision, to be made
by an arbitrator, on whether a section 188A(11)
LRA inquiry will be held. He states that if the arbitrator decides
that a section
188A(11) LRA inquiry will be held, the disciplinary
proceedings will be terminated permanently. However, if the
arbitrator decides
not to hold a section 188A(11) LRA inquiry, the
disciplinary proceedings against him must proceed.
[67]
Mackie
[14]
set
out the requirements for interim relief as a
prima
facie
right, even though open to some doubt; a well-grounded apprehension
of irreparable harm if the interim relief is not granted; the
absence
of an alternative remedy; and a balance of convenience in favour of
granting the interim relief.’
Jonker’s
submissions
[68]
His
protected disclosures relate to the Department's Yellow Fleet, the
supply of diesel and diesel tanks and the abuse of power.
The
‘
the
right to intervene arises from a right bestowed upon the Applicant by
the LRA in terms of section 188A(11) of the LRA.
’
Extensive reference was made to
Fisher
[15]
,
which held that because the employee had invoked section 188A(11) of
the LRA and the Commission for Conciliation, Mediation, and
Arbitration (CCMA) had yet to allocate the matter to an arbitrator,
it would be inappropriate and irregular for the employer to
continue
with the disciplinary hearing.
[69]
Relying
on
Nxele
v National Commissioner: Department of Correctional Services and
Others
[16]
(
Nxele
LC
),
which was upheld on appeal in
National
Commissioner: Department of Correctional Services v Nxele and
Another
[17]
(
Nxele
LAC
),
it was submitted that the object of section 188A(11) of the LRA is to
avoid disputes in which an employee alleges that holding
a
disciplinary hearing into allegations of misconduct breaches the PDA,
and that the provision aims to reduce the risk of collateral
litigation. The submission is that once an employee invokes section
188A(11) of the LRA, it is for the appointed arbitrator to
establish
the jurisdictional prerequisites.
[70]
Reliance
was also placed on
Tsibani
v Estate Agency Affairs Board and Others
[18]
(Tsibani).
It
was submitted that section 188A(11) of the LRA does not envisage a
parallel process, and that if the disciplinary process relates
to an
employee’s conduct, the s188A(11) LRA inquiry will replace the
disciplinary hearing. The contention is therefore that
holding a
disciplinary inquiry, when Jonker has invoked the provisions of
section 188A(11) of the LRA, is inappropriate and, in
fact, no longer
competent. Therefore, unless the court interdicts the disciplinary
hearing, Jonker will ‘face the dubious
prospect of having to
participate in an internal disciplinary process which could have no
lawful consequences and could rightly
be considered to be
terminated.’
[19]
[71]
Reference was also made to
Fisher
,
in which this court held that an employee’s entitlement to a
section 188A(11) process is triggered if (a) there is a protected
disclosure of which the employer is aware, (b) the protected
disclosure predates the institution of the disciplinary proceedings,
and (c) the employee invokes section 188A(11) of the LRA. The
submission is that, on the facts, all these requirements are
satisfied.
Jonker made a disclosure, as defined in section 1 of the
PDA, regarding the conduct of the HoD, reasonably believing that the
information
he disclosed shows or tends to show,
inter
alia
, that a criminal offence has been
committed, is being committed, or is likely to be committed. The
submission is further that the
disclosures were made to persons
listed in the PDA: a legal adviser (section 5), the employer (section
6), and the HAWKS and the
Special Investigations Unit (SIU) (a person
or body in accordance with sections 8 and 9 of the PDA). The
disclosures were made
in March and April 2023, thereby predating the
most recent disciplinary hearing.
The respondents’
contentions
[72]
The
respondents dispute that Jonker is a whistleblower as contemplated in
the PDA, deny that the pending disciplinary inquiry constitutes
an
occupational detriment, deny that the alleged disclosures were made
in good faith, and submit that there is no nexus between
the alleged
occupational detriment and the ongoing disciplinary hearing.
[20]
[73]
The Department contends that the HoD was
appointed after a period during which the Department had been under
administration, and
that upon his appointment he had to review
delegations and other administrative processes to enhance efficiency.
At the time of
the HoD’s appointment, the CFO's investigation
into Jonker regarding the Yellow Fleet was already underway. The HoD
received
a report that the annual budget for the Yellow Fleet was
spent within two months of allocation, and that this was one of the
reasons
the Yellow Fleet function was taken away from Jonker, to
prevent the Department from sinking deeper into debt and collapsing
service
delivery. Jonker’s foul cry is not based on any facts
but stems from a public servant who believes he owns departmental
resources
and cannot be held accountable.
[74]
Regarding RP, the HoD was informed by the
senior managers responsible for the districts of challenges with
diesel supply. Jonker
resisted conducting market research to identify
potential service providers for the National Treasury Transversal
Contract. This
was the reason his powers to appoint service providers
were withdrawn, so that the Department could explore the supply of
diesel
tanks following reports of diesel losses and unmanageable
expenditure. Presentations from service providers were required to
assess
where capacity could be drawn, not to appoint RP in the manner
Jonker alleges. Neither RP nor any other service provider was
appointed
to supply or repair diesel tanks. Jonker could not have
been instructed to cancel the Transversal Contract, as he is a junior
manager,
reporting to Directors and Chief Directors. RP was appointed
by the National Treasury before the HoD’s appointment and is
on
the National Treasury database. The court was invited to read the
founding affidavit together with all other correspondence
and
documents because of the applicant’s ‘concentrated
falsehood aimed at tarnishing the image and the good character
of any
person that differed with him’. Jonker has a propensity to tell
lies, fabricate facts, and claim victimhood once his
lies catch up
with him. He is not even worthy of claiming to be a whistleblower or
to be facing an occupational detriment.
[75]
Jonker was redeployed after the HoD learned
that he was still at home, rather than charging him with absconding.
The HoD asked Jonker
to indicate a directorate where his skills could
be best utilised.
[76]
Jonker filed a complaint with the HAWKS in
August 2023, after his suspension, after some of his functions had
been withdrawn, and
after he had been interviewed by Open Waters
forensic investigators in connection with the Yellow Fleet. The
complaint lodged with
the SIU in February 2026 was made after Jonker
had been charged following the Eligna investigation. Therefore, both
complaints
were lodged in response to disciplinary proceedings
against Jonker.
[77]
The Department has had a PDA Policy since
2022, which was reviewed in March 2023. Jonkers’s alleged
whistleblowing is driven
by malice and bad faith. If he were a
genuine whistleblower, he would have requested that his identity be
withheld, rather than
shouting from the rooftops as he is doing.
[78]
The submission further stated that Jonker
was first suspended in March 2023 and that the purported disclosure
to the HAWKS in August
2023 occurred while an investigation into the
Yellow Fleet was already underway.
[79]
The Department agreed to a section 188A(11)
inquiry in respect of the first disciplinary hearing due to delays
with that hearing,
and that no precedent was set that disciplinary
inquiries will be terminated if an employee invokes section 188A(11)
of the LRA.
Section 188A(11) of the LRA does not confer an automatic
right to an inquiry, and Jonker is required to provide proof of the
irregular
conduct, not merely to make allegations, express beliefs,
or present a biased narrative of victimisation driven by ulterior
motives.
Jonker is charged with gross misconduct arising from a
forensic investigation, and a fair procedure is being followed. The
PDA
does not protect insolence, defamatory allegations, or a refusal
to cooperate.
Evaluation
[80]
Before
assessing whether Jonker has made out a case for the relief he seeks,
the court notes that the
Fisher
decision,
on which Jonker heavily relied, was followed in
Modika
v
Industrial
Development of South Africa
and
Another
[21]
(Modika
LC).
In fact, the same judge issued both decisions. It is unclear whether
the
Fisher
decision
was challenged.
Modika
LC
was
taken on appeal, and in
Industrial
Development Corporation of South Africa v Modika and others
[22]
(Modika LAC)
handed
down on 17 March 2026, the court set aside the decision of the court
a
quo
.
[81]
In
Modika LC
,
the employee approached the court for a final order interdicting a
disciplinary hearing,
inter alia
,
on the basis that he had invoked section 188A(11) of the LRA. The
court interdicted the disciplinary hearing pending an arbitrator's
decision on whether to hold a section 188A(11) LRA inquiry.
[82]
On appeal,
Modika
LAC
criticised the court
a
quo, inter alia,
for granting interim
relief interdicting the disciplinary hearing pending the CCMA’s
decision on whether to hold a section
188A(11) LRA inquiry, despite
the employee having sought final relief. In the present matter,
Jonker seeks interim relief pending
the Bargaining Council’s
decision on whether it will hold a disciplinary hearing.
[83]
Further findings in
Modika
LAC
will be referred to when dealing
with the requirements for interim, an issue that I turn to next.
Prima facie right
[84]
Jonker seeks an order interdicting the
disciplinary hearing pending the CCMA's decision on whether to
conduct a section 188A(11)
inquiry into the allegations of misconduct
against Jonker. Section 188A(11) gives an employee who alleges in
good faith that the
holding of an inquiry contravenes the PDA, the
option to request that an inquiry be conducted into the allegations
regarding the
employee's conduct or capacity.
[85]
The respondents devoted much of their
arguments to challenging Jonker’s assertion that he is a
whistleblower. That issue is
not relevant to the question of whether
Jonker has a
prima facie
right to the relief he seeks. For section 188A(11) of the LRA to be
triggered, what is required is for an employee to allege, in
good
faith, that the disciplinary proceedings have been instituted because
the employee made protected disclosures. It is not necessary
for the
employee to establish that they made protected disclosures, as found
in
Modika LAC
,
which decision did not refer to an earlier decision of the same court
in
Nxele LAC
,
which found otherwise.
[86]
The
court in
Tsibani
v Estate Agency Affairs Board and others
[23]
,
held that section 188A(11) of the LRA is not designed or intended to
determine whether the facts constitute a protected disclosure
as
contemplated by the PDA or not. Instead, the provision provides for
an inquiry into allegations concerning an employee's conduct
or
capacity.
[87]
Whether
an employee made protected disclosures is a matter for determination
when the employee refers a dispute to the Bargaining
Council or the
CCMA for conciliation in terms of section 186(2)(d) of the LRA. If
the dispute remains unresolved, a referral to
this court is made in
terms of section 191(13) of the LRA.
[24]
[88]
It is for that court, hearing the unfair
labour practice claim, to determine whether an employee was subjected
to an occupational
detriment for making protected disclosures.
[89]
In
National
Commissioner: Department of Correctional Services v Nxele and
another
[25]
(Nxele LAC)
,
the court held as follows regarding section 188A(11) of the LRA:
‘
[14]
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 holding
of an
inquiry does so.’
[90]
Also in
Matlala
,
the court decided after
Nxele LAC
that
‘
[48]
…the employee has to show that
their
belief
is
bona
fide,
not that the disciplinary action
taken does amount to an occupational detriment.’
[91]
Therefore, a
prima
facie
right is demonstrated if the
court accepts that Jonker’s allegation that he is being
disciplined because he made a protected
disclosure is made in good
faith.
[92]
The disciplinary process sought to be
interdicted concerns allegations of ‘leakage of sensitive
information’ and the
‘defamation of the character of the
HoD and the MEC’ by Jonker. There can be no denying that the
charges arise from
Jonker’s allegations, dating from 2023, that
the HoD and the MEC were engaged in irregular conduct in respect of,
inter alia
,
the Yellow Fleet, the supply of bulk diesel, and the installation of
diesel tanks. The fact that the respondents allege that the
charges
stem from a forensic investigation conducted by Eligna in August 2025
does not alter the picture.
[93]
Given
that background, the court is of the
prima
facie
view that Jonker’s allegation that he is being disciplined for
making protected disclosures is made in good faith. In
Nxele
LAC
,
the court stated that ‘the concept of good faith is sensitive
to context.’
[26]
The
charges against Jonker have context that is relevant to determining
whether Jonker made the request for a section 188A(11)
inquiry in
good faith.
[94]
I
say
prima
facie
intentionally because it is for the Bargaining Council to determine
whether Jonker’s request for a section 188A(11) LRA inquiry
was
made in good faith. In
Modika
LAC,
the
court held that the
court
a quo
usurped the CCMA’s powers by finding that the jurisdictional
requirements for accepting a section 188A(11) LRA referral were
met,
as the power to make such a determination rested with the CCMA. In
that regard, the court referred to this court’s decision
in
Matlala
v Foskor Proprietary Limited and others
[27]
(
Matlala
)
which reached the same finding that it is for the CCMA or the
Bargaining Council to determine whether the jurisdictional
requirement
is met. Obviously, that decision can be reviewed by this
Court, as the Bargaining Council and the CCMA make jurisdictional
findings
for convenience.
[95]
If the CCMA or the Bargaining Council finds
that to be the case, it will conduct the section 188A(11) LRA
inquiry. It cannot be
said that Jonker is attempting to evade
answering the allegations against him, as this is precisely what the
section 188A(11) LRA
inquiry will be concerned with.
[96]
Jonker has made out a prima facie case for
an order interdicting the internal disciplinary hearing, so that the
Bargaining Council
can decide whether to hold a section 188A(11) LRA
inquiry into the allegations of misconduct against Jonker.
Irreparable harm and
balance of convenience
[97]
Jonker
submitted that unless interim relief is granted, he will be denied
the opportunity to exercise his right to a section 188A(11)
LRA
inquiry. Reference was made to
Fisher
,
[28]
which held that, unless interim relief is granted, an employee would
face the dubious prospect of participating in a disciplinary
hearing
that could have no lawful consequence, and that this may lead to
collateral challenges and litigation, which section 188A(11)
of the
LRA seeks to avoid. In addition, specific reference was made to the
Chairperson's remarks at the disciplinary hearing, suggesting
he
would not be impartial. The Chairperson also opposed the current
application, further proving that he would not be impartial.
[98]
The
Department submitted that the alleged harm is speculative and not
fact-based. The Department has the right to discipline Jonker
for
legitimate reasons, and he can seek recourse later through Bargaining
Council arbitration in terms of section 193 of the LRA
[29]
,
or pursue PDA remedies or review proceedings. Halting the
disciplinary hearing would be to allow forum shopping.
[99]
In
Tshwane
City v Afriforum
[30]
and another, the court held that:
‘
[59]
Irreparable implies that the effects or the consequences cannot be
reversed or undone. Irreparable therefore highlights
the
irreversibility or permanency of the injury or harm…’
[100]
Unless the interdict is granted, the
Department will proceed with the disciplinary hearing against Jonker,
even though section 188A(11)
of the LRA permits Jonker to request
that the misconduct charges against him be heard by an independent
person appointed by the
Bargaining Council who has no ties to the
Department. The only requirement is that the employee’s
allegation that he is being
subjected to a disciplinary hearing for
making protected disclosures must be made in good faith, and the
court has found,
prima facie
,
that this is the case. Once the disciplinary hearing is completed,
the outcome cannot be reversed. That harm is irreparable.
[101]
That the Department did not consent to a
section 188A(11) LRA inquiry is irrelevant, as the provision is
invoked at the request
of either the employee or the employer. Unlike
section 188A(1), section 188A(11) of the LRA does not require the
other party's
consent to be invoked.
[102]
If the Bargaining Council accepts the
referral, the Department will have an opportunity, before an
arbitrator appointed by the Bargaining
Council, to prove the charges.
The only difference is that the arbitrator is independent, unlike the
Chairperson appointed by the
Department. If, however, the Bargaining
Council rejects Jonker’s referral, the Department may proceed
with the disciplinary
hearing. Whether a section 188A(11) LRA inquiry
or a disciplinary hearing is convened, the Department will be able to
enforce discipline.
The court fails to see any harm to the Department
should the interdict be granted pending the Bargaining Council’s
decision
on whether to hold a section 188A(11) LRA inquiry.
[103]
There is also no prejudice to the
Department, as the disciplinary hearing has not yet commenced and no
witnesses have given evidence.
[104]
The respondents’ submission that a
precedent will be set if it agrees to a section 188A(11) LRA inquiry
is without merit.
Employees have a right to invoke the provision, and
an inquiry will be held only if the Bargaining Council accepts that
the allegation
that the employer is disciplining the employee was
made in good faith. Unless that jurisdictional requirement is met,
employees
cannot invoke section 188A(11) of the LRA to avoid a
disciplinary hearing.
[105]
The Department will suffer no harm if the
court interdicts the disciplinary hearing pending the Bargaining
Council's decision on
whether to hold a section 188A(11) LRA inquiry
into the allegations of misconduct against Jonker. The balance of
convenience favours
the grant of interim relief.
Absence of an adequate
alternative remedy
[106]
Only this court can grant an interdict
pending the Bargaining Council’s decision on whether to conduct
a section 188A(11)
LRA inquiry into the charges against Jonker.
Therefore, Jonker has no adequate alternative remedy to halt the
disciplinary hearing
that the Department insists on, and the
Chairperson has ruled must continue, other than approaching the court
for an interdict.
Jonker need not wait for his dismissal, as
contended by the respondents, and then file an automatic unfair
dismissal claim if that
is the outcome of the section 188A(11) LRA
inquiry. This is because the provision affords him the option to
invoke it when the
jurisdictional requirement is met, allowing an
independent decision-maker to assess the allegations of misconduct
against him.
If the independent decision-maker finds merit in the
misconduct allegations and dismisses Jonker, he would lose the right
to claim
that the dismissal was automatically unfair, given section
188A(12) of the LRA.
[107]
The interdict to be granted will operate
for a limited period, allowing the Bargaining Council to decide
whether to hold the section
188A(11) LRA inquiry. Once that decision
is made, the interdict will lapse. Granting the interdict, which is
limited in duration,
will not prejudice the Department.
Exceptional
circumstances
[108]
Where an employee alleges, in good faith,
that an employer is convening a disciplinary hearing against them
because they made protected
disclosures, and seeks an order
interdicting pending the decision of the CCMA or the Bargaining
Council whether to conduct a section
188A(11) LRA inquiry, that
employee would have demonstrated exceptional circumstances warranting
the court’s intervention.
Relief
[109]
Jonker seeks an order interdicting the
disciplinary hearing pending an arbitrator's decision on whether to
hold a section 188A(11)
LRA inquiry. In this case, the Bargaining
Council issued an invoice to the Department in respect of a section
188A(11) LRA inquiry.
It can reasonably be assumed that on payment of
the invoice, the matter would be allocated to an arbitrator to
conduct the section
188A(11) LRA inquiry. On that interpretation,
arguably, the Bargaining Council has already accepted the referral.
[110]
However, the respondents did not rely on
this to refuse the relief sought. The matter was argued on the basis
that the Bargaining
Council had not yet decided whether to conduct a
section 188A(11) inquiry. Accordingly, the order to be granted is one
interdicting
the disciplinary hearing pending the Bargaining
Council's decision on whether to accept the section 188A(11) LRA
referral.
[111]
A question that arises is whether the
Bargaining Council would convene an initial hearing to determine
whether Jonker’s allegation
that he is being subjected to a
disciplinary process for making protected disclosures is made in good
faith, and to issue a ruling.
This is because, unless that
jurisdictional requirement is met, the Bargaining Council cannot
conduct the section 188A(11) LRA
inquiry into Jonker’s alleged
misconduct.
[112]
Alternatively,
does the issue of a notice of set down for a section 188A(11) LRA
inquiry serve as proof of the acceptance of Jonker’s
referral,
as suggested in
Modika
LAC
?
[31]
Is it not the case that issuing of set-down notices is an
administrative function performed by an administrative clerk, often
without paying much attention to the contents of the referral and any
annexures? If that is so, can it really be said that the issuing
of a
set-down notice amounts to a finding that the CCMA or the Bargaining
Council has accepted the referral?
[113]
Although the current application did not
require these questions to be considered, they require clarification
at some point.
Costs
[114]
Jonker sought costs from the Department and the HoD for refusing to
agree to a section 188A(11) LRA inquiry and for
failing to upload the
answering papers to Caselines in accordance with Directive 1 of 2025
ahead of the hearing. The Department
also sought costs from Jonker on
an attorney-and-client scale B for launching the application, which
it believes lacked merit.
[115]
Jonker was not frivolous in bringing the application. The
respondent’s defence largely relied on the assertion
that
Jonker did not make protected disclosures. At the time of writing the
judgment, there were conflicting decisions of the LAC
on whether, in
an application such as the present, an employee is required to make
out a case that they made protected disclosures.
Those decisions are
Nxele LAC
and
Modika LAC,
and this court resolved to
follow
Nxele LAC.
The respondents did not rely on any of these
decisions. Jonker relied on
Nxele LAC
but not on
Modika
LAC,
which overturned the
Fisher
judgment that he relied
upon. An order in accordance with the requirements of law and
fairness is that each party pay its own costs.
[116]
In the premise, the following order is made:
Order
1.
The matter is heard as an urgent
application, in terms of Rule 38 of the Rules for the Conduct of
Proceedings in the Labour Court,
and that the prescribed forms and
procedures are dispensed with insofar as is necessary.
2.
The internal disciplinary inquiry at the
first respondent into the charges of misconduct against the
applicant, following the disciplinary
notice dated 26 January 2026,
is interdicted and suspended pending a decision by an arbitrator to
be appointed by the fifth Respondent
whether the disciplinary inquiry
should be conducted within the contemplation of
Section 188A(11)
of
the
Labour Relations Act 66 of 1995
.
3.
If the arbitrator decides that the
disciplinary inquiry shall be conducted in accordance with
Section
188A(11)
of the LRA, under the auspices of the fifth respondent, the
internal disciplinary inquiry shall be considered and regarded as
finally
terminated.
4.
If the arbitrator decides that the internal
disciplinary inquiry shall not be conducted in accordance with
section 188A(11)
of the LRA, the internal disciplinary inquiry may
reconvene, and the interim interdict of paragraph 2 shall
automatically lapse.
5.
There is no order as to costs.
T.
Gandidze
Judge of the Labour Court
of South Africa
Appearances
For the
Applicant:
Mr Scholtz
Instructed
by:
Scholtz Attorneys
For
the 1
st
to 4
th
Respondent:
Advocate Motlogelwa
Instructed
by:
Setshedi Makgale & Matlapeng Attorneys
[1]
Act No 66 of 1995, as amended.
[2]
Which
provides that”
"(2) "Unfair
labour practice" means an unfair act or omission that arises
between an employer and an employee involving-
(d) an occupational
detriment, other than dismissal, in contravention of the Protected
Disclosures Act, 2000 (Act 26 of 2000),
on account of the employee
having made a protected disclosure defined in that Act."
[3]
The founding affidavit is accompanied by 57 annexures. The answering
affidavit and annexures run into more than 100 pages. The
replying
affidavit is 50 pages long, plus annexures. There is also the
300-page forensic investigation report by Elidna Forensic
Investigators. The respondents filed their heads of argument late in
the day on 22 April 2026, and the applicant’s heads
of
argument were uploaded onto Caselines 30 minutes before the start of
court on 23 April 2026.
[4]
(2025/189683) [2025] ZALCJHB 514 (28 October 2025).
[5]
(2023/080436) [2023] ZAGPJHC 1162 (13 October 2023).
[6]
With reference to
Mbude
v Premier of the Eastern Cape and others
[2022] 9 BLLR 859 (ECB).
[7]
(J 1220/2022) [2022] ZALCJHB 277 (12 October 2022).
[8]
See
Matlala
v Forskor Proprietary Limited and others
(2025/169524) [2025] ZALCJHB 478 (22 October 2025) at para 30.
[9]
Act 26 of 2000.
[10]
[2007] ZALC 74
;
[2010] 3 BLLR 229
(SCA) at para 33.
[11]
(2011) 32 ILJ 112 (LAC) at para 54.
[12]
(2012)
33 ILJ 2033 (LAC).
[13]
(2014) 35 ILJ 973 (LAC).
[14]
Ibid para 18.
[15]
Para 34-35, 41
[16]
(2018)
39 ILJ 1799 (LC).
[17]
[2025] 5 BLLR 472 (LAC).
[18]
[2021] JOL 51625
(LC) at para 67.
[19]
See
Matlala
v Foskor Proprietary Limited and Others
(2025/169524) [2025] ZALCJHB 478 (22 October 2025) at para 51, which
held that "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) inquiry?
If the
court does not stay the internal inquiry, Matlala could be denied
the opportunity of exercising his right to request the
statutory
inquiry because, unless the request for the statutory inquiry is
accepted, the employer can proceed with the internal
one in the
meantime ... "
[20]
On behalf of Jonker it is pointed out that the last part must be an
error and that what was being submitted is that there is
no nexus
between the disclosure and the disciplinary hearing.
[21]
[2026]
2 BLLR 172 (LC).
[22]
(A2026/037072)
[2026] ZALAC 21 (17 March 2026).
[23]
[2021] JOL 51625
(LC) at para 72.
[24]
Which states as follows:
(13)
(a)
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
Protected Disclosures Act, 2000
,
for having made a protected disclosure defined in that Act.
(b)
A referral in terms of paragraph
(a)
is deemed to be made in terms of
subsection (5)
(b)
.
See
Mackie, fn 13.
[25]
[2025]
5 BLLR 472 (LAC).
[26]
Ibid at para 20.
[27]
(2025/169524) [2025] ZALCJHB 478 (22 October 2025) at paras 50 and
51.
[28]
Fisher
para 43.
[29]
Which provides for remedies of unfair dismissals and unfair labour
practices.
[30]
2016 (6) SA 279
(CC) at para 59.
[31]
Para 20.