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[2026] ZALCD 33
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Mbuyisa and Others v Ethekwini Municipality and Others (2026/128420) [2026] ZALCD 33 (31 July 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Case
No:
2026-128420
(1)
Reportable: No
(2)
Of interest to other Judges: Yes
31
July 2026
In the matter between:
ERIC
DUMISANI MBUYISA,
SIBUSISO
ZENZINKOSI BROOK
SITOLE
FALAKHE
BRUCE SITHOLE
First
Applicant/Plaintiff
Second
Applicant/Plaintiff
Third
Applicant/Plaintiff
and
ETHEKWINI
MUNICIPALITY
First
Respondent
SOUTH
AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
COMMISSIONER
HILDA GROBLER
(
N.O.
)
Third
Respondent
Heard:
25 June 2026
Delivered:
31 July 2026
Summary
(Urgent interdict to halt disciplinary
enquiry pending review of CCMA ruling refusing to convene S 188A(11)
disciplinary enquiry
– struck off the roll for lack of urgency
– costs awarded on attorney own client scale)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
The applicants in this matter (‘Mbuyisa’,
‘Sitole’ and ‘Sithole’) applied for a rule
nisi
preventing
the first respondent (‘the municipality’) from proceeding
with disciplinary enquiries, pending the outcome
of a review of
rulings issued by the third respondent (‘the arbitrator’)
on 25 May 2026. In the event the rulings are
set aside they seek an
order that the second respondent (‘the bargaining council’
or ‘SALGBC’) has jurisdiction
to adjudicate the dispute
between the applicants and the municipality in terms of section
188A(11) of the Labour Relations Act
66 of 1995 ("the LRA")
and setting the matter down for hearing accordingly.
[2]
Section 188A(11) reads:
‘
Despite
subsection (1),
if an employee
alleges in good faith
that the
holding of an inquiry contravenes the Protected Disclosures Act, 2000
(Act 26 of 2000),
that employee
or the employer
may require
that
an inquiry be conducted in
terms of this section into allegations by the employer into the
conduct or capacity of the employee
.’
[3]
The first ruling concerned Mbuyisa and
Sitole and the second concerned Sithole. The factual circumstances
underpinning both were
essentially the same. The arbitrator, found in
respect of Sithole that he did not even claim to have made a
protected disclosure
but had instructed Mbuyisa to report a
conversation that the latter claimed to have had with an unidentified
member of the so-called
‘taxi mafia’ at the Pearls Hotel
in Umhlanga. Having not been the person reporting the alleged
protected disclosure,
he was not entitled to invoke s 188A(11).
The arbitrator found, following the LAC judgment in
IDC
v Modika & others that
Mbuyisa and
Brook had failed to establish any of the conditions identified in
that judgment that an applicant under s 188A(11) must
satisfy.
Accordingly she ruled that their application under the section was
without substance and there was no basis on which the
bargaining
council could schedule a s 188A(11) inquiry.
Brief chronology
[4]
The events giving rise to the present dispute commenced on 22 October
2018 when the eThekwini municipality's Bid Evaluation Committee
recommended the appointment of Blacks Joint Venture (BJV) for
Contract E9412 at a contract value of R4,166,158.50. Subsequently,
on
11 February 2019, the Bid Adjudication Committee approved Contract
E9422 for the maintenance and construction of streetlights.
Twenty-four service providers were appointed to the panel, with work
allocations to be made in accordance with a predetermined
pricing
hierarchy and within an overall contract value of R114,035,080.00.
[5]
On 28 November 2019, Mbuyisa, a Superintendent within the Electricity
Unit, received a phone call from an unidentified individual
instructing him to attend a meeting at the Pearls Hotel in Umhlanga.
At the meeting, certain individuals identifying themselves
as taxi
industry representatives allegedly demanded that municipal projects
falling within his area of responsibility be allocated
to companies
associated with them. They further informed him that his superior, Mr
M Mthembu (‘Mthembu’), was allegedly
aware of the
arrangement and conveyed information concerning his private residence
and his wife's place of employment, which was
understood by Mr
Mbuyisa as a threat. Mthembu was the head of the Electricity Unit at
the municipality.
[6]
On 3 December 2019, Mr Mbuyisa reported the incident to his immediate
superior, Mr Sibusiso Sitole. Following discussions
with Mr Sitole
and a union representative, Mr Wiseman Mgilane, he attended Ethekwini
Central Police Station and, on 5 December
2019, deposed to a sworn
affidavit setting out the circumstances of the alleged intimidation.
According to Mbuyisa, he emailed
it to Mthembu. The text of the
affidavit reads:
‘
This
protected disclosure is done with an advise from my union
representative
Mr. Wiseman Mgilane (SAMWU) and that of Mr.
Sithole my immediate supervisor.
I hereby report the
incident that I encountered on 28 November 2019 whereby I received a
call giving me an ultimatum summoning me
to a meeting at the Pearls
Hotel in Umhlanga. The unknown caller seemed to know most of my work
details, as in who I was, what
I do in the position I occupy at work.
I was not given an option to attend this meeting, I was told to come.
Indeed I honored the
meeting where they introduced themselves as the
taxi bus of well-known Ethekwini taxi family. NB. Name is withheld
through the
advice of my union representative Mr. Wiseman Mgilane,
but will reveal during the sitting with the employer Mr. Mthembu. In
the
meeting I was told that they needed to work with me on all
municipal projects at the lighting division that I am in charge of
and
that they have service providers that they are in cooperation
with them and that I should not worry because my boss Mr. Mthembu
knows about this meeting.
I told them that I was
merely a low level staff working with already appointed service
providers. That is where threatening started,
they told they know my
address, my wife’s work address and they left.
Next day was 29
November 2019 way I had to switch on Christmas decorative lights in
town. On Monday, 2 September 2019 I reported
the incident to my union
that I was forced to do unlawful act of which I refused.
Union advised me to
tell my manager Mr. S Sithole about the incident which I did on 3
rd
December 2019. He also advised me to have a written statement to my
employer Mr Mthembu since his name was mentioned at that meeting
.
This is the main
reason I report this in of protected disclosure of information
through my union representative Mr. Wiseman Mgilane
who shall submit
this disclosure to my employer head of electricity Mr. Max Mthembu
.’
(
Sic –
emphasis
added)
[7]
The municipality contends that there is no documentary or other
objective evidence demonstrating that the 2019 affidavit
was ever
served on, delivered to, or brought to the attention of municipal
management. In reply, the applicants rely largely on
an explanation
regarding the migration of municipal information technology systems
and the resultant loss of records. No confirmatory
affidavit from the
individual allegedly responsible for transmitting the disclosure
appears to have been produced. On the papers,
the respondent's
allegation therefore remains substantially unanswered.
[8]
Later, concerns emerged regarding expenditure under Contract E9422.
During February 2020, Mr Sitole was reportedly advised
of substantial
over-expenditure on the contract and instructed that further work
allocations should cease. Despite these concerns,
work continued to
be allocated under the contract during the period that followed.
[9]
A municipal investigation was subsequently undertaken by the Business
Risk Control Unit. Although the applicants contend
that this
investigation did not implicate them in wrongdoing, further
investigations were later initiated. In October 2021, Mr
Mthembu
presented a regularisation report to the Bid Adjudication Committee
in relation to expenditure under Contract E9422. It
is alleged that
his report significantly understated the extent of the irregular
expenditure which, according to later forensic
findings, exceeded
R200 million.
[10]
A criminal case was opened during October 2022 concerning
irregularities related to Contract E9412. This was followed
by a
comprehensive forensic investigation conducted by the City Integrity
and Investigations Unit (CIIU).
[11]
On 17 April 2023, the CIIU finalised the forensic report under
reference INV 001/07/2020. The report concluded that Contract
E9412
had resulted in irregular expenditure amounting to approximately R 18
million, while Contract E9422 had generated irregular
expenditure of
about R250,000. The report recommended disciplinary action and
consequence management against several officials,
including Mthembu
and the applicants. The applicants’ replying affidavit does not
engage in any detail with the specific
factual findings contained in
the forensic report.
[12]
Between April and November 2024, the municipality served formal
disciplinary charges on the applicants. The allegations
concerned,
inter alia,
failures to monitor contract values, authorisation
of expenditure exceeding approved budgets, and failures to provide
documentation
required by investigators. The applicants deny any
wrongdoing on their part.
[13]
Separate disciplinary proceedings for each applicant commenced during
April 2025 and continued thereafter. It was only
on 23 April 2026
that the applicants referred their matter to the South African Local
Government Bargaining Council in terms of
section 188A(11)
of the
Labour Relations Act. The
applicants state that it was only during
April 2026, that they obtained legal advice concerning the legal
significance of the ‘disclosure
affidavit’. The
applicants claim that, even though the enquiries might have been
initiated in April 2025, the enquiry only
commenced a year later.
They argue that there is no requirement that they had to raise the
alleged protected disclosure within
a specified time-limit. The
municipality contends that the applicants’ delay in raising the
disclosure shows they were not
acting in good faith.
[14]
The applicants explain that proof of delivery of the affidavit to
Mthembu is missing because the municipality migrated
its computer
systems from Groupwise to Outlook in 2023. This migration completely
wiped historical local data from employees' active
computers. While a
master data backup exists, it is restricted and only accessible by
the respondent's centralized administration.
The applicants claim
that because Mr. Mthembu is no longer employed by the municipality,
they cannot easily obtain a confirmatory
affidavit from him
acknowledging receipt. The municipality disputes the migration
explanation, which it claims is a fabricated
excuse, noting that a
forensic search of immutable master backups found no trace of the
disputed document.
[15]
The applicants contend that the disciplinary proceedings constituted
an occupational detriment arising from Mr Mbuyisa's
2019 disclosure
and sought an inquiry by an independent arbitrator in place of the
employer-led disciplinary process.
[16]
On 25 May 2026, the third respondent (the arbitrator’)
dismissed the applications. The Commissioner found that
the
applicants had failed to establish that the 2019 affidavit was
communicated to the municipality or any authorised representative
thereof. In the absence of proof that the disclosure had been brought
to the employer's attention, the Commissioner concluded that
the
requirements for a protected disclosure had not been established.
[17]
Following an indication by the municipality that the disciplinary
proceedings would continue notwithstanding a pending
review
application, the applicants launched urgent proceedings in the Labour
Court on 3 June 2026. They sought interim relief staying
the
disciplinary proceedings pending a review of the Bargaining Council's
rulings. The application was enrolled for hearing on…………
Evaluation
Urgency
[18]
The first question is whether the applicants acted with sufficient
speed in launching the urgent application. Firstly,
did they act
promptly after receiving the adverse ruling on their requests for a
section 188A
(11) inquiry ?
[19]
On 15 April 2026, the applicants formally learned
of the arbitrator's ruling, which stated that the bargaining council
lacked the
jurisdiction to force a
Section 188A(11)
conversion
without the employer's prior consent. The following morning, the
applicants' attorneys took immediate action by drafting
and
transmitting a formal letter to the municipality's evidence leader
and the disciplinary chairperson to request an urgent stay
of the
internal disciplinary enquiry, pending a review of the rulings. On 17
April 2026, he delivered a formal written response
that refused the
stay and confirmed that the internal hearings would proceed as
scheduled. Later that day, the applicants' attorneys
finalized,
signed, and served the current court application to halt the internal
disciplinary process.
In this limited respect, the
applicants cannot be said to have been dilatory in approaching the
court.
[20]
However, another facet of urgency concerns the timing of the
application, in the context of the disciplinary proceedings.
The
question is whether the request for the
section 188A(11)
enquiry was
long overdue and should have been acted upon at least a year earlier,
when the applicants were charged. The municipality
points out that
the existence of an alleged protected disclosure was kept under wraps
for a year and that the applicants only acted
on it, when they could
see the enquiries were getting underway. The applicants’
response is that they only became aware
of the legal significance of
Mbuyisa’s affidavit on obtaining legal advice in April 2026, on
the strength of which the
section 188A(11)
request was made.
[21]
This explanation seems inherently implausible. It is readily
apparent from the text of the affidavit that Mbuyisa
knew full well
at the time he made the affidavit that he believed, on the advice of
his union, that he was making a protected disclosure
and that it had
to be conveyed to his employer. It seems most improbable he would
have been unaware of the implications of making
a protected
disclosure, when the sole value of making a protected disclosure is
to protect the employee from retaliatory disciplinary
action. It
seems far more likely that the protected disclosure referral was only
made once it was deemed necessary to stop the
enquiry progressing.
[22]
In any event, Mbuyisa provides no explanation why he did not raise
the protected disclosure when he was charged in 2025.
If he genuinely
believed the charges were trumped up as retaliation for the
disclosure he made six years earlier, it is wholly
improbable that
this improper reason for charging him would only have occurred to him
a year after he was charged. It was not necessary
for him to take
legal advice before he could entertain the belief that the real
motive of the municipality for charging him was
because of his
alleged whistleblowing, especially if he viewed the charges as ones
that were trumped up. No explanation is provided
why he had a
revelation after a year that it might be worth getting advice on
whether the alleged protected disclosure could avail
him a defence.
In all likelihood this was simply a poor attempt to justify the delay
in acting.
[23]
The applicants correctly point out that there is no time limit in
s
188A(11)
for requiring such an enquiry within a certain time period.
However, it stands to reason that since that enquiry would be a
substitution
for the employer’s internal enquiry, once an
employee is charged and believes the reason for being charged is an
ulterior
one arising from them making a protected disclosure, they
should act quickly to prevent the enquiry proceeding.
[24]
In
Mtweta
v Transnet Freight Rail and Operating Division of Transnet (SOC)
Limited
[1]
and
Lindokuhle
Tsibani v The Estate Agency Affairs Board and Others
[2]
,
the applicants in those matters had launched similar urgent
applications two months and more than three months respectively after
receiving charges. In both instances, this court dismissed the
applications for lack of urgency. In this instance, Mbuyisa delayed
for nearly a year, despite allegedly having expressly made a
protected disclosure and believing that was the reason for the
disciplinary
action taken against him.
[25]
In the circumstances, he ought to have acted soon after the charges
were proferred, not a year later. For this
reason, his
application must fail for lack of urgency.
Issues bearing on costs
[26]
Although the applications stand to be struck off the roll for lack of
urgency, there are other aspects of the application
which have a
bearing on costs and must be mentioned.
Sithole
and Sitole had no basis for being parties to the application
[27]
Even on the applicants’ own version, only one of them alleged
he made a protected disclosure, namely Mbuyisa. Only
he could
exercise the right to require a
section 188A(11)
enquiry. There
is no provision for one employee who makes a protected disclosure to
act as an implicit proxy for others.
If a protected disclosure
is clearly made jointly by a group of employees that is another
matter, but this was not the pleaded
case. In the circumstances,
their participation in the application was highly opportunistic to
say the least
Absence
of a prima facie right to a
section 188A(11)
enquiry
[28]
For the sake of completeness,
assuming that the
application had been brought with sufficient urgency, Mbuyisa ought
not to have succeeded in my view, because
he would not have been able
to establish a
prima facie
right
to the enquiry. This is also relevant to the question of a cost
order. What would have Mbuyisa have to demonstrate to make
out a
prima facie
right to the
section 188A(11)
inquiry, if the application was urgent?
There are conflicting Labour Appeal Court judgments about the
pre-requisites an employee
must meet before being entitled to require
a
section 188A(11).
[29]
Following
the wording of the provision, in
National
Commissioner Department of Correctional Services v Nxele and
Another
[3]
,
the
LAC held that:
‘
[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
.’
[30]
By
contrast, in
Industrial
Development Corporation of South Africa v Modika and Others
[4]
,
the LAC reaffirmed jurisdictional pre-requisites that an employee
must meet to satisfy the threshold to obtain a
section 188A(11)
enquiry
[5]
, which were first
enunciated in the Labour Court decision in
Mamodupi
v Property Practitioners Regulatory Authority and Another
[6]
. In
Mamodupi
the
court described the jurisdictional requirements to be met thus:
‘
[45] …
Accordingly, in my view the provisions of the subsection
[7]
are evocable if the following jurisdictional facts are present in the
order set out below:
45.1
The employee
must make a protected disclosure
;
45.2
Thereafter,
the employer must subject the employee who already
made a protected disclosure to an occupational detriment
;
45.3
Once so subjected
, an employee
must allege honestly and sincerely so that a causal connection does
exist between his or her protected disclosure
and the occupational
detriment.
Differently put,
it is because of having made a protected disclosure that an employer
chose to respond by an occupational detriment.
[47]
[8]
In my view
if
any of the above stated jurisdictional facts is absent, subsection
188A (11) cannot be invoked
.
Therefore,
to my mind, the council; accredited agency and the commission must
refuse to entertain the request that an inquiry be
conducted in terms
of this subsection if any of the jurisdictional facts are absent.’
[31]
Even if the less demanding standard of
Nxele
,
is applied to Mbuyisa it is difficult to see how he could succeed,
even on a
prima facie
basis
of establishing his right to a
section 188A(11)
enquiry. It is most
improbable that he could have
bona fide
believed that the municipality waited six years and initiated a
wide-ranging and lengthy forensic investigation which led to several
employees being charged, including himself, just for the sake of
punishing him for his disclosure so long ago, which appears to
have
had no adverse consequence for the municipality at all. Even less so
could he have met the pre-conditions endorsed in
Modika
,
which would almost require him to prove he actually did suffer an
occupational detriment, before he would be entitled to an independent
disciplinary enquiry.
Costs
[32]
Bearing in mind the discussion above, I am not
persuaded that this was anything more than a highly speculative and
application,
which was patently late, obviously with no prospect of
success as far as Sitole and Sithole are concerned, and with
virtually none
in the case of Mbuyisa. It hardly bears repeating that
this court has time and again warned applicants who wish to halt
disciplinary
enquiries on an urgent basis, that such applications
should not be undertaken lightly. If parties engage in such
high risk
litigation, there is no reason in law or fairness why such
gambles should be at the expense of the parties who are compelled to
oppose them.
[33]
Accordingly, the municipality should not be out of
pocket as a result of opposing this application.
Order
1.
The application is struck off the roll for lack of urgency.
2.
The Applicants are jointly and severally
liable for the First Respondent’s costs incurred in opposing
the application, including
the costs of counsel, which are payable on
an attorney own client scale, the one paying the others to be
absolved.
Lagrange J
Judge of the Labour
Court of South Africa
Appearances:
For the
Applicants:
--- S R Mhlanga
of Mahlanga Incorporated.
For
the Respondent:
--- S Tshangana
Instructed
by:
--- Mojela Hlazo Attorneys Inc
[1]
(J 58/2024) (2024) ZALCJHB 17 (29 January 2024)
[2]
(2021) ZALCJHB 150 (24 June 2021),
[3]
[2007] ZAECHC 63
;
[2025] 5 BLLR 472
(LAC)
[4]
(A2026/037072)
[2026] ZALAC 21
(17 March 2026)
[5]
At paragraphs 37, 47-49 and alluded to elsewhere in the judgment
[6]
J68/23) [2023] ZALCJHB 19 (13 February 2023)
[7]
I.e.
S 188A(11)
[8]
NB, it appears that there was a numbering typographical error.
Paragraph 47 should be paragraph 46.