IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JS 898/04
Heard: 2 November 2006
Delivered electronically: 26 December 2006
In the matter between:
M M TSHISHONGA Applicant
AND
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT First Respondent
THE DIRECTORGENERAL OF THE
DEPARTMENT OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Second Respondent
JUDGMENT
______________________________________________________________
Introduction
1. Are disclosures to the media about impropriety in the workplace
protected under the Protected Disclosures Act 26 of 2000
(PDA)? What is a disclosure? When does it qualify for
protection? What remedies are appropriate for compensating a
victim of an occupational detriment?
2. These are some of the questions that have to be answered in the
first claim before the Labour Court for compensation arising from
the PDA. 1
1 Previous decisions of the Labour Court were interdicts. Communication Workers Union v
1
Applicant’s evidence
3. The applicant was employed in 1978 in the department of justice
(the department) in Venda as a DirectorGeneral. In 1994 he
became a Deputy DirectorGeneral when the various
departments of justice amalgamated. He was the Managing
Director of the Masters’ office business unit (the unit).
4. One of his tasks was to eradicate corruption that riddled the
administration of insolvent estates, particularly around the
appointment of liquidators. After a brainstorming exercise with
the staff, it was resolved that a panel would be established to
appoint liquidators.
5. In 2002 the first respondent, the former Minister of Justice, Dr
Penwell Maduna, telephoned the applicant from Cape Town to
inform him that he was with a friend, Mr Enver Motala, who would
be contacting the applicant because he, Motala, was
knowledgeable about liquidations.
6. In February 2002 Motala met the applicant for lunch in Pretoria.
He expressed his dissatisfaction with the way in which he was
being sidelined by the procedure for appointing liquidators. Mr
Lategan, an Assistant Master in the Pretoria Master’s office was,
he said, very knowledgeable about liquidators and their
appointment and that he should be engaged when appointing
them. The Minister, he said, liked the applicant very much and
Mobile Telephone Network (Pty) Ltd (above); (Grieve v Denel (Pty) Ltd (2003) 24 ILJ 551 LC ).
Compensation was considered in two reported arbitrations viz H and M Ltd (2005) 26 ILJ 1739
and Rand Water Staff Association and Rand Water (2001) 22 ILJ 1461
2
that he had great respect for the Minister. The discussion ended
with the applicant being wary of Motala. It was clear to him that
Motala wanted to influence him for his own purpose by abusing
his relationship with the Minister.
7. Two insolvency practioners bodies wanted to merge. About 8
February 2002, they met under the chairmanship of the
applicant. Prior to the meeting, Motala had telephoned the
applicant to inform him that the Minister wanted him to attend the
meeting. The applicant was unhappy about acceding to the
request. He informed Dr Seriti, the erstwhile chairman of one of
the merging associations. Dr Seriti was concerned. At the
meeting he said it was not proper for Motala to attend whilst
other liquidators were excluded. Furthermore, it was a meeting of
the executive members of the practioners’ bodies. Motala
nevertheless remained in attendance throughout the meeting,
despite the discomfort it caused to the participants.
8. About 15 February 2002, the Minister telephoned the applicant
expressing dissatisfaction with the way in which liquidators were
being appointed. He directed the applicant to convene a meeting
with the staff so that he could address them.
9. The meeting was attended by South African Commercial
Catering and Allied Workers Union (SACCAWU) and South
African Revenue Services (SARS). Motala attended again as the
only liquidator. The Minister announced that he was unhappy
with the way in which Motala was being sidelined. The
chairperson of the panel for appointing liquidators, Irene
3
Mokgalabone, had prepared a report which she distributed at the
meeting. She explained why Motala was not appointed. (See
evidence of Mokgalabone)
10. The discussion ended on the note that as the Minister was made
aware of the procedure, if anyone was unhappy they could
approach the applicant first before contacting the Minister. In the
applicant’s opinion, the matter was resolved.
11. While the applicant was on leave in July 2002, Mr Koos Van der
Merwe, the Senior Manager: Inland who was deputizing for him,
telephoned to inform him that Mr Farouk Vahed, the Master of
the High Court in Pietermaritzburg, had been instructed by the
Minister to appoint Motala as liquidator in the Retail Apparel
Group (RAG) liquidation. Van der Merwe wanted to know how to
assist Vahed.
12. The applicant advised Van der Merwe to get help from the
department’s legal advisors so that the Minister can be informed
as to what his powers were. Van der Merwe replied that legal
advice had already been obtained and that the Minister did not
agree with it. The applicant then directed Van der Merwe to
inform Vahed to exercise his discretion in terms of the law and
that Vahed should get the Minister’s instructions in writing if they
were beyond his powers.
13. On his return to work the applicant asked Vahed to prepare a
report on this episode. (The Vahed report)
4
14. RAG was liquidated in May 2002.
15. Four liquidators originally appointed to the RAG enquiry
successfully challenged the appointment of Motala in the High
Court in Kwazulu Natal. The Court confirmed the opinion of the
department’s legal advisers, viz that the Minister did not have the
power to instruct the Master to appoint liquidators.
16. The Minister’s appeal to the Supreme Court of Appeal was
dismissed.2
17. About 12 September 2002, while the decision of the Supreme
Court of Appeal was pending, the Minister instructed the
applicant to convene a meeting between Lategan, the second
respondent, ie DirectorGeneral Vusi Pikoli, Vahed and himself.
At that meeting the Minister announced that he was appointing
Lategan as acting Assistant Master in Pietermaritzburg to
oversee the appointment of the liquidators in the RAG case.
18. The applicant was surprised. He did not expect the Minister to
appoint his subordinate without first approaching him. He
wondered how the Minister even knew of Lategan without
engaging the applicant. Furthermore, it was unheard of that an
Assistant Master from one jurisdiction could be appointed to act
in another jurisdiction and in a specific case.
19. Although RAG was one of the largest liquidations in the country
involving claims in excess of R1 billion, Vahed had been
2 Minister of Justice v Firstrand Bank Ltd and Others 2003 (6) SA 636 .
5
reluctant to follow the Minister’s instructions for the further reason
that it did not justify five liquidators.
20. Lategan appointed Motala as the fifth and lead liquidator in the
RAG liquidation after he became acting Assistant Master in
Pietermaritzburg.
21. The procedure for appointing liquidators was that the company in
liquidation would requisition a person to be appointed. It was not
open to Lategan to make an appointment without a
recommendation or requisition. Lategan’s relationship with
Motala was also unusual. The Finance Week of 14 April 2004 3
published a testimonial issued on 7 March 2001 in which he
praised Motala “unashamedly”. 4
22. The RAG enquiry in terms of s 417 of the Companies Act No 61
of 1973 proceeded in Sandton. Motala’s attorney, Brian Khan
and two advisors, viz Soraya Hassim and Ratif Bhana, who were
also related or personally associated with Motala, were
appointed.
23. During a meeting held in January 2003 to discuss how to deal
with the Minister and Motala, the DirectorGeneral admitted to
Mokgalabone and the applicant that he was unhappy about their
relationship and remarked that the Minister became “agitated”
whenever something was said about Motala.
3 A341
4 A342
6
24. At about 21h00 on 28 January 2003 the applicant received a
telephone call at his home from the Minister informing him that
he was with the trade union who was up in arms because it
believed that its interests were not being taken seriously when
liquidators were appointed. The Minister accused the applicant of
not helping him in the RAG matter and of badmouthing him. He
declared that the applicant would be “the first casualty”. He raged
on that he was removing the applicant as head of the unit with
immediate effect and that he did not care where the Director
General placed him. He refused to hear any response from the
applicant.
25. The applicant became numb with disbelief that the Minister could
be so insensitive. He telephoned the DirectorGeneral that
evening to report the incident. The DirectorGeneral was also
shocked. They agreed to discuss the matter the following day.
26. At the discussion the next day it was clear that the Minister had
already contacted the DirectorGeneral. The applicant
questioned how a politician could instruct the DirectorGeneral as
an administrator to remove the applicant and why the Director
General would execute the instructions without following
prescribed procedures. He wanted to ask the Minister for
reasons for removing him. The DirectorGeneral replied that the
Minister would not give reasons.
27. On 4 February 2003 Enver Daniels, the Chief State Law Advisor,
was appointed to take over the applicant’s responsibilities as the
7
Managing Director of the unit. 5
28. According to media reports, the Minister had allegedly hinted that
the applicant had an axe to grind after being rapped over the
knuckles for poor work performance. The applicant believed that
his performance was a matter that should have been raised by
the DirectorGeneral not the Minister. He denied that his
performance was ever in question. At his disciplinary enquiry, the
DirectorGeneral acknowledged that he “did a good job” in
cleaning up the Department and that he “sent a message of
clean and good corporate governance. 6 In the letter dated 19
February 2003 in which the DirectorGeneral gave the applicant
notice of his removal to the position of Managing Director in the
office of the DirectorGeneral, he assured the applicant that he
needed his expertise. 7
29. The applicant reported to work daily but was given no work in his
new position.
30. On the Applicant’s recommendation made when he managed the
unit, the DirectorGeneral had commissioned a forensic
investigation into corruption. Mr Kinghorn prepared a report on
his investigations (the Kinghorn report). Mr Mckensie, who had
been seconded to the department by Business Against Crime to
investigate corruption in the Master’s office, oversaw the
preparation of the report. He gave the applicant a copy in the first
week of February 2003. Copies of the Kinghorn and the Vahed
5 A90
6 A10, A19
7 A91
8
reports were also given to the DirectorGeneral. The Director
General did not act on either report.
31. In the absence of any response from the DirectorGeneral to
these reports, the applicant went to the Public Protector in
February 2003. He discussed his complaint with Adv Van
Rensburg of the Public Protector’s office and left copies of the
reports with him.
32. Not having heard from the Public Protector, the applicant lodged
the complaint with the AuditorGeneral’s Office on 16 April
2003.8 Apart from acknowledging receipt of the complaint the
following day 9, the applicant received no further response from
the AuditorGeneral.
33. Thereafter the applicant met with Adv Khutswana from the Public
Protector’s office. She had since been assigned his complaint.
He received a letter dated 12 May 2003 from her informing him
that his complaint relating to his treatment as a public servant
should be referred to the Public Service Commission (PSC). The
allegations about irregularities in the appointment of liquidators in
the RAG matter were to be handled by Mrs Fourie from the
Public Protector’s office. 10 His complaint to the AuditorGeneral
had also been redirected to the Public Protector to avoid
duplication.
34. Later in May 2003 the applicant received a call from Fourie
8 A97
9 A98
10 A99
9
requesting a signed copy of the Vahed report. He referred her to
Vahed in Pietermaritzburg. He heard nothing further about the
investigation from the Public Protector’s office.
35. The applicant then turned to Minister Pahad as a member of the
Cabinet. Minister Pahad said that it seemed that the Minister was
not right; but he was not prepared to get involved. Instead, he
urged the applicant to meet the DirectorGeneral and the
Minister. He offered to help the DirectorGeneral set up the
meeting as he had good relations with the Minister. The applicant
thought that was a good idea and asked the DirectorGeneral to
convene the meeting. He agreed to do so but the meeting did not
take place.
36. On 6 October 2003 he telephoned Fourie for a progress report.
She informed him that nothing had been done because there
was no official complainant. The applicant persisted that he was
the complainant and offered to go to her offices again to discuss
the matter. Fourie said that she would confer with the Public
Protector and revert shortly thereafter. The applicant did not hear
from her again.
37. Frustrated by the lack progress in investigating the complaint, the
applicant conferred with an investigative journalist on 6 October
2003, after Fourie failed to revert to him. He held a press
conference two days later.
38. The DirectorGeneral telephoned to discourage him from
approaching the media.
10
39. The applicant issued a press statement in which he set out
information about the alleged improprieties. 11 To justify his
suspicion that there was a questionable relationship between the
Minister and Motala he informed the media that Motala received
liquidations to the value if R 583m from July 2000 to September
2003. Other liquidators received liquidations to the value of R1m
or so. He included statistics of Motala’s appointments in his press
release.
40. Much publicity followed.
41. The Minister responded with a press release explaining that he
initially acted in response to a request by SARS to appoint
Motala. After his decision was set aside by the High Court
Lategan appointed Motala without his intervention. 12
42. The headlines of Sunday Independent of 12 October 2003 read
“Maduna throws in the towel.” Nepotism and corruption in the
department were cited as some of the reasons for the Minister
deciding not to be available to serve as a Minister the following
year.13
43. On 8 October 2003 The Sowetan reported that President Mbeki
was intending to appoint a judicial commission of enquiry into the
allegations of corruption against the Minister. 14 A commission
11 A105
12 A108109
13 A198A200
14 A173
11
was not established. Instead, an internal committee headed by
Advocates Nkosi and Seth Nthai was commissioned to
investigate corruption in liquidations. The applicant testified
before the committee. To date the committee has produced no
reports of its investigations of which the applicant is aware.
44. The Minister telephoned him after an article was published in
The Citizen 15 and shouted that he would not get any job in this
country.
45. Publicly, the Minister allegedly described the applicant on
national television as “a dunderhead”, “a relic of the Bantustans
of old who was accommodated by Maduna’s people in the new
order and who was now biting the hand that fed him.” 16 He was
also alleged to have said that the applicant was a timid public
servant who could not box himself out of a wet paper bag.
46. The applicant lodged a complaint of criminal defamation against
the Minister. The police obtained a transcript of the broadcast
and submitted it to the Director of Public Prosecutions. He
declined to prosecute and advised the applicant to pursue a civil
claim.
47. The applicant was suspended on 13 October 2003 pending
disciplinary action because, it was alleged, he should not have
held a press conference to reveal sensitive issues about the
Ministry and the department without following protocol, nor
15 A174
16 A344
12
should he have made defamatory remarks about the Minister to
the media. 17
48. In a further letter dated 23 October 2003 to the Public Protector
the applicant placed on record that he had been suspended and
that he suspected that the Minister would instruct the Director
General to charge him for misconduct. 18
49. On 27 October 2003 the applicant was subpoenaed to testify at
the RAG enquiry. He did not fit the criteria for relevant witnesses
in terms of s 417(1) of the Companies Act. Although he
suspected that he was being subpoenaed in order to be
discredited, he nevertheless attended the enquiry with a legal
representative. Adv Stephan Du Toit, the evidence leader,
badgered him with questions that were not relevant to the RAG
liquidation. He asked the applicant why he went to the press
about the corruption allegations. Such questions were relevant to
a disciplinary enquiry against him. Their relevance to a s 417
enquiry was also challenged by Adv Broster, SC who
represented another party at the enquiry.
50. The applicant received a message via his professional assistant
that the DirectorGeneral wanted him to return documents.
51. He sought a meeting with the DirectorGeneral to clarify precisely
what documents were sought. The Vahed and Kinghorn reports
had been impounded at the RAG enquiry. The applicant did not
17 A110, A113
18 A155E
13
want to hand over documents that would assist in his defence.
52. The DirectorGeneral did not meet with the applicant. Instead, on
14 November 2004 he obtained a rule nisi against the applicant
interdicting him from disclosing privileged information or
documents of the department to the RAG enquiry and to any
other person and called for the return of all documentation in his
possession which were obtained without authorization and which
belonged to the department. 19 The rule nisi was discharged on
16 November 2004. 20
53. The applicant was charged with misconduct on 5 December
2003.21
19 A149 – A152
20 A351
21 The charges were:
“Charge 1: That the applicant, during October 2003, made allegations against Mr Penwell
Meduna (who was at the time the Minister of Justice and Constitutional
Development), to the effect that Mr Meduna (sic) had a “questionable relationship”
with Mr Enver Motala, a liquidator appointed to handle the RAG liquidation. In this
regard Mr Tshishonga contravened:
1.1 Clause C3.4 of the Pubic Service Code of Conduct (“the Code”), which
requires that an employee must use the appropriate channels to air her or
his grievances or to direct representations.
1.2 Clause C4.10 of the Code, which states that an employee must “report to
the appropriate authorities, fraud, corruption, nepotism, maladministration
and any other act which constitutes an offence, or which is prejudicial to
the public interest” .
Charge 2: That the applicant accused Mr Maduna of:
2.1. Undermining the rule of law by acting outside the scope of his powers; and
in this regard, acting contrary to the discretionary powers of the Masters of
the High Court;
2.2. Nepotism;
2.3. Abuse of infrastructure and staff of the Department for the purposes of
advancing his personal interests; and
advancing his personal interests; and
2.4. Endangering South Africa’s criminal justice system;
2.5. By doing so he infringed the Minister’s constitutional right to his dignity.
Charge 3: That the applicant refused without just or reasonable cause to return
all documents relating to the RAG case after having been instructed to do so by a
person having authority, namely Mr V Pikoli, the DirectorGeneral of the
14
54. He challenged his suspension successfully and without
opposition in the Labour Court. On 28 January 2004 he was
reinstated in the position of Managing Director of the unit pending
arbitration to be conducted under the auspices of the General
Public Service Sectoral Bargaining Council. 22
55. The department refused to comply with the Labour Court order
because of his alleged misconduct.
56. His suspension persisted until 20 July 2004 when, following the
disciplinary enquiry conducted by an independent chairperson
appointed by the department, the applicant was found not guilty.
57. After the disciplinary hearing, the applicant contacted the
DirectorGeneral to get his job back and to ensure that the
department did not deem his employment to be terminated on
the grounds of abscondment. When they met the Director
General refused to reinstate the applicant despite the Labour
Court order and being found not guilty of the charges. He
contended that the trust had broken down and that they should
talk about a settlement. To avoid the risk of being deemed to
have absconded, the applicant secured a letter from the Director
General confirming that he was on indefinite leave. Negotiations
began which culminated in the applicant’s employment being
Department (‘the DG’). This amounts to gross insubordination.
Charge 4: That the applicant disclosed to the media the administration of liquidations by the
Office of the Master of the High Court of which he was in charge. By this conduct
he had disclosed official information for personal gain and the gain of others.”
Charge 4 was withdrawn.
22 A331
15
terminated by agreement.
Evidence of Irene Mokgalabone
58. Mokgalabone was employed by the department in 1995 as an
Assistant Master.
59. She corroborated the applicant regarding the establishment of a
panel of Assistant Masters to appoint liquidators. The rationale
was that it was easier to bribe or corrupt an individual but not
fifteen members of a panel. Prior to the establishment of the
panel, the function of appointing liquidators was rotated amongst
individual Assistant Masters.
60. She attended the meeting called by the Minister on 15 February
2002. She found the meeting strange firstly, because the Minister
had not visited the Masters’ office before. Secondly, he was
accompanied by one liquidator only, viz Motala. Thirdly, the
purpose of the visit was puzzling. The Minister wanted to know
why Motala was not being appointed. Mokgalabone presented
the Minister with a written report explaining why Motala was not
appointed in certain cases and especially in response to
requisitions from SARS. 23
61. She informed the Minister that the requisitions from SACCAWU,
the trade union that nominated Motala, had not been completed
properly to enable the panel to assess what the value of the
claims were and how many claimants supported the nomination.
23 A228 A261
16
62. The panel members expressed their concern that the corruption
uncovered was the tip of the iceberg. Part of the problem, they
said, was the absence of a regulatory framework for selecting
liquidators. As far as Mokgalabone was concerned, the Minister’s
queries had been addressed adequately.
63. Mokgalabone then turned to testify about the panel’s
comparative report regarding insolvency appointments for the
periods 2000 to 2001, ie the period immediately before the panel
was established, during its operation between the end of 2001 to
April 2003 and after it disbanded from April to September
2003.24 This report had been prepared for the Minister and the
industry.
64. The comparative analysis showed that when the panel appointed
liquidators, the work was spread more widely and evenly. When
the panel disbanded, Motala got the bulk of the liquidations.
65. Dr M S Motshekga of Sechaba Trust (Pty) LTD had responded to
the report by writing to the Minister on 12 March 2003 to
compliment the panel and Mokgalabone in particular about its
“transparent and fair” system of appointments. 25 Mr K S
Manamela, a liquidator from Legae Trust, wrote to Mokgalabone
on 25 October 2002 recording his appreciation of the work of the
panel.26
24 A280 329
25 A275
26 A277
17
66. Under cross examination, the work of the panel became even
clearer. On a daily basis all appointments of liquidators were
pinned to a board on the first floor of the Master’s office. Even
after Mokgalabone left the service she was able to complete the
report up to September 2003 with the other members of the
panel. She gathered information whenever she went to the
Master’s office. The panel met over weekends or after hours. It
took it upon itself to complete the report up to September 2003
for the sake of transparency.
67. She wanted to get the report “out there” so that the public would
know that the panel did a good job. Mr Hulley probed further to
establish why a person who was no longer employed by the
department would take the trouble to complete the report,
sometimes at the expense of her new employer’s time. To this
she responded convincingly that she had a passion for the
insolvency industry having been involved in its restructuring.
68. It emerged that before the panel was appointed, white males
mainly were appointed as liquidators. The number of previously
disadvantaged individuals (PDI’s) (ie white females, Coloured,
Africans, Indians and disabled) increased from 13 in 2000 before
the panel was established to 18 in 2001 and to 112 in 2002 27
when the panel made the appointments. The number of PDI’s
who received appointments in big liquidations rose from 12 in
2001 to 73 in 2002 and plummeted to 26 between April to
September 2003. 28
27 A282
28 A316
18
69. Motala had received 8 appointments as liquidator for the total
value of R265 000 between 27 June 2000 to 31 December 2000.
From 1 January 2001 to 31 December 2001 Motala ranked
fourteen on the list of liquidators after having 67 appointments
and was second highest in terms of the value of the estates to
which he was appointed. For the greater part of 2001
appointments were made by individual Assistant Masters and not
the panel.
70. Between 1 January 2002 to 31 December 2002 Motala dropped
to 10 th in terms of the value of the liquidations in which he was
appointed and had 38 appointments. Between April and
September 2003 Motala escalated to the top of the list of PDI’s
receiving 39 appointments to the total value of R309 787 000. Of
this, 11 appointments were in respect of claims above the value
of R5000. 29
71. Mokgalabone was challenged on the basis that white males got
the bulk of the liquidation work from the panel. One Mr Lyn was
cited as an example. He had 3 appointments to the value of R1m
in 2000, 8 appointments to the value of R184,5m in 2001 and 42
appointments to the value of R292,1M in 2002. Mokgalabone
explained that Lyn was favoured by the banks as a liquidator. He
was appointed on requisition.
72. The PDI’s were identified by an asterisk on the list of liquidators.
Mokgalabone elaborated that the asterisk implied that 90% of
29 A315
19
those liquidators’ appointments had been “discretionary” as
distinct from appointments on requisition. A discretionary
appointment was made by the panel when a PDI was teamed
with a liquidator who was not a PDI or who had been appointed
on requisition.
73. Two lists of insolvent estates were kept – one for estates above
R5m and the other for estates below R5m. A roster of liquidators
was maintained for each list. Discretionary appointments
followed the list alphabetically. As there were many more estates
below R5m, the roster in respect of small estates went through
faster with many PDI’s getting more appointments.
74. The list of liquidators was updated by the panel on a daily basis.
In the absence of a regulatory body to supervise the appointment
of liquidators, a monitoring committee was established with
representatives of the executive committees of the practioners’
bodies. The panel interviewed all the candidate liquidators in the
presence of the committee before they were allowed on to list. It
also inspected all the appointments made by the panel on a
monthly basis. 30
75. With regard to appointments on requisition, the panel had to
appoint the nominated liquidator if the requisition was in order.
The panel did spot checks to establish whether the requisitions
were in order. It was not possible to check every requisition
because of capacity constraints. The panel also referred
fraudulent claims to the Scorpions. By way of example
30 A281
20
Mokgalabone testified that many requisitions received from
SARS were rejected because the assessments were not
attached. As a result the value of the SARS’ interest as creditor
could not be assessed.
76. SARS’ assessments were liquid claims. That gave SARS an
advantage over most other creditors whose claims had still to be
proved. If an assessment was higher than other claims, then
SARS’ nominee would be appointed. SARS’ assessments were
sometimes questionable. It submitted claims when it owed a
refund. On other occasions it failed to produce an assessment
even after Mokgalabone had asked for it. Thus the panel could
not assume SARS’ requisitions were valid in spite of its preferred
status. Because of its status the panel had to be especially
vigilant.
77. Mr Hulley disputed that the discretionary appointments were
made fairly. He questioned how one PDI (Ledwaba) could get 14
appointments to the value of R19,5m whilst another PDI, Bahm
got one appointment valued at R40 000. Mokgalabone explained
that liquidators came on to and left the panel at different times.
Bahm might have been on the panel for a short time in 2002.
Similarly, Mandela Magato came on to the list later in 2002;
hence he received only 3 appointments. 31 When it was pointed
out to her that Makgato was already on the list for 2001 32, she
explained that there could have been two Makgato’s. She might
have confirmed that if she telephoned someone all the Master’s
31 A307
32 A297
21
office to check the files.
78. There was no request that Mokgalabone be allowed to make the
telephone call. Nor was the court prepared to stand the matter
down to allow her to do so as it was always open to the
respondents to refute Mokgalabone’s testimony by producing the
Master’s office files.
79. In March 2003 Mokgalabone and Van der Merwe were instructed
to meet the Minister at his offices.
80. They waited outside his office for thirty minutes before being
invited into the room where about thirty people were assembled.
The meeting had already been discussing Mokgalabone before
she arrived. The complaint of the liquidators assembled seemed
to have been about the appointment of white liquidators. The
Minister was angry with Mokgalabone and Van der Merwe and
encouraged the others to also voice their complaints. He told
Mokgalabone and Van der Merwe that they could leave the
department or sue him but he would fight to the bitter end.
81. After the meeting, the Acting Master, Mr Jordaan and Van der
Merwe assembled the panel. Jordaan praised them for their work
saying that since the panel started appointing liquidators, he had
never received a compliant. Van der Merwe directed them to
report to Lategan thenceforth as he was the Director: Insolvency.
82. This arrangement embittered the members of the panel as it
meant that their success in transforming the industry would be
22
reversed as the authority to appoint liquidators reverted to one
individual. Lategan could overturn their recommendations.
83. In a letter dripping with bitterness and disappointment, the panel
informed Jordaan that it was disbanding. 33
84. Jordaan replied by letter dated 9 April 2003 34 repeating his
appreciation of the work of the panel and reminding them of their
duties regarding the appointment of liquidators in future.
85. Frustrated by this turn of events, Mokagalbone resigned and
accepted appointment as a Manager: Estates with ABSA Trust in
July 2003. As her resignation was forced by intolerable
circumstances in the workplace she considered claiming for
unfair dismissal from the department. On advice, she abandoned
such action as the “fish was too big” and she was “small fry”. She
had overcome her grievance by the time she completed the
comparative report. She currently holds the position of Regional
Manager: Wills at ABSA.
33 A313; Extracts from the letter read as follows : “1)The appointment of Mr
Lategan to act as supervisor over the appointment of liquidators creates the
impression (in the Master’s Office as well as the Insolvency industry) that the
panel did not do the appointments correctly or that there was corruption
involved. If that is the case (that the panel did appointments incorrectly or
there was corruption involved), the current panel members are not suitable to
continue therewith.
2) The panel had a circular issued regarding the guidelines used to make appointments, which, if
deviated from, creates a lot of problems in the industry. If the panel’s decisions were to be
overruled, the panel would not be in a position to defend such decision, which would cause the
panel to lose credibility
…
7) It is not the duty of Assistant Masters to attend to appointments .
…
7) It is not the duty of Assistant Masters to attend to appointments .
The Assistant Masters attended to the appointments in an effort to clear the tarnished name of
the Master’s Office, Pretoria, created by the suspension of certain Deputy Masters. Obviously this
effort was not good enough for the Department/Minister.”
34 A278
23
Submissions for Applicant
86. The applicant’s case was brought squarely within the four
corners of the PDA. Mr Woudstrar, SC took the court through the
general principles on protected disclosures. He examined firstly,
what the requirements were for a disclosure by reference to the
definition of that word in s 1(a) and (b) of the PDA. 35 Secondly,
he answered the question whether the disclosure was protected
affirmatively by referring to s 5, s 6, s 7, s 8 and s 9 of the PDA.
87. Thirdly, he supported his submission that disclosure to
the media was protected in terms of s 9 by submitting that a
“wide and unqualified” meaning should be attributed to the word
“any” in 9(1). 36 He referred to the manual issued to public
service managers by the PSC 37 and a Master’s Degree
dissertation.38 Particular requirements of s 9 were discussed to
show that the applicant complied fully in that the disclosure was
35Communication Workers Union v. Mobile Telephone Network (Pty) Ltd (above); H and M
(above); Darnton v The University of Surrey 2003 IRIR 133; H & M Limited [2005] 26 ILJ 1737 at
1781F G.
36 Commissioner for Inland Revenue v Ocean Manufacturing Ltd 1990 (3) SA 610 (A) at 611H;
R v Hugo 1926 AD 268 at 271; Hayne and Company v Kaffrarian Steam Mill Company Ltd 1914
(AD) 363 at 371; H & M Limited (above)
37 A352 354
38 Juliette Van Rooyen The Desirability of a Culture of Whistleblowing
24
made in good faith, in the reasonable belief that the allegations
were substantially true and for no personal gain.
88. Fourthly, he submitted that the applicant was subjected
to an occupational detriment as defined in s 1 (a) (b) and (1) of
the PDA.
89. Fifthly, he invited the court to draw an adverse inference
from the respondents’ failure to testify 39 and to admit certain
hearsay evidence. 40
90. Sixthly, t he applicant’s claim for the costs of legal
representation for defending himself at the enquiry was based on
s 186(2)(b) and (d) and s 191(13) read with s 193 (4) and s
194(4) of the LRA and s 4(2)(b) of the PDA. The quantum of the
compensation should be assessed on the basis that it is a
solatium for an unfair labour practice. 41 The claim for legal
39 Elgin Fireclays Ltd Webb 1947 (4) SA 744 (A); ABSA Investment Management Services (Pty)
Ltd v Crowhurst (2006) 2 BLLR 107 (LAC)
40 Hewan v Kourie NO and Another 1993 (3) SA 233 (TPD) at 238G239A and 241AE
41 Pedzinski v Andisa Securities [Pty] Limited (2006) 2 BLLR 184 (LC); Brassey: Commentary
on the Labour Relations Act at A4154 ; Johnson & Johnson [Pty] Limited v Chemical Workers
Industrial Union (1999) 20 ILJ 89 (LAC) at 99DF; Fauldien and Others v The House of Trucks
[Pty] Limited (2002) 23 ILJ 2259 at para. 11 and 12; National Industrial Workers Union and
Others v Chester Wholesale Meats KZN [Pty] Limited (2004) 25 ILJ 123 (LC); Members of the
Executive Council for Tourism and Environmental and Economic Affairs: Free State v Nondumo
and Others (2005) 26 ILJ 1337 (LC); Prinsloo v Harmony Furnishers [Pty] Limited (1992) 13 ILJ
1593 (IC); Ellerine Holdings Ltd v Du Randt (1992) 13 ILJ 611 (LAC) at 612EF; Intertech
Systems [Pty] Limited v Sowter (1997) 18 ILJ 689 (LAC); Christian v Colliers Properties (2005) 5
BLLR 479 (LC)
25
costs was patrimonial and should be allowed. 42
91. Lastly, the applicant sought a punitive order for costs.
Submissions for the Respondents
92. The disclosures were not protected under the PDA firstly,
because they were made to the news media which is not a body
contemplated under the PDA, 43 and secondly, because they
were not made in a responsible manner as envisaged in s 3(1)
(c)44 of the PDA.
93. In the absence of any South African cases on the incidence of
the onus in proceedings under the PDA, he referred to case law
from the United Kingdom (UK) to show that the applicant bore
the onus of proving that his actions fell within the terms of the
PDA. 45
94. Returning to South African authorities on the onus of proof
generally46 and in employment contracts specifically 47 Mr Hulley
contended that the onus lay with the applicant to justify that the
42 Ferodo [Pty] Limited v De Ruyter (1993) 14 ILJ 974 (LAC) which cited Anderman, The Law of
Unfair Dismissal (2 nd edition); Intertech Systems [Pty] Limited v Sowter (1997) 18 ILJ 689 (LAC).
43 Communication Workers Union v Mobile Telephone Network (Pty) Ltd (above)
44 Para 3.2.2 of Respondents’ Heads. This reference is incorrect and should probably read “s
8(1)(c)”.
45 The United Kingdom’s Employment Rights Act, 1996 as amended by the Public Interest
Disclosure Act 1998; Street v Unemployed Workers’ Centre [2004] 4 All ER 839 (CA) at 842e;
[2004] EWCA Civ 964 (“Street”)
46 Pillay v Krishna 1946 AD 946 at 951 – 952; Mabaso v Felix 1981 (3) SA 865 (A) at 873E
47 Coolair Ventilator Co. (SA) (Pty) Ltd v Liebenberg 1967 (1) SA 686 (W); May v Raw & Co.
(1881) 2 NLR 158; Knox D’Arcy Ltd v Jamieson 1992 (3) SA 520 (W) at 527FH) ; McQuoid
Mason The Law of Privacy in South Africa (1978) at p. 189.
26
respondents were not entitled to exercise their powers of
dismissal, discipline and suspension and to prove that his actions
fell within the terms of the PDA, specifically s 9.
95. “Information” in the definition of disclosure in s (1)(1) of the PDA,
means “facts or knowledge provided or learned.” 48 Personal
opinion is not information contemplated in the PDA. 49 The
applicant did not have “reason to believe” in the truth of the
disclosures.50 He relied on the Vahed and Kinghorn reports and
his own knowledge to conclude that “the Minister had played an
integral role in ensuring the appointment of Motala”. 51 The
Kinghorn report did not state that the Minister was party to
corruption involving R950 000,00. Nor did he know the identity of
the person reporting to Kinghorn. Further investigations had to be
done and the applicant was unaware and made no enquiries to
establish whether they had been undertaken.
96. The applicant was aware that the Minister was taking up the
cudgels on behalf of SARS in wanting Motala to be appointed.
The Minister was therefore not furthering his own interests. The
applicant’s “reasonable belief” that the Minister was guilty of
“alleged corruption” was an indication of his bad faith as there is
no such crime as “alleged corruption”. 52
48 Oxford English Dictionary
49 Communication Workers Union v Mobile Telephone Network (Pty) Ltd (above)
50 Minister of Law and Order v Hurley & Another 1986 (3) SA 568
51 Para 26 of Respondents’ Heads. It was in fact common cause that Motala was appointed on
the Minister’s instructions which were declared to be unlawful.
52 Para 28 of the Respondents’ Heads
27
97. A disclosure made in good faith 53 is not one that is deliberately
aimed at embarrassing or harassing an employer. 54 The
applicant’s disclosure was inspired by a personal grudge against
the Minister. It was made one week after the Minister “sidelined”
him. He chose not to refer his complaint to the PSC. He failed to
investigate whether there was an innocent explanation for the
Minister’s conduct despite the Vahed report suggesting that there
might be such an explanation.
98. “Gain” is defined in the Collins English Dictionary as “to acquire
(something desirable); obtain”. It has been interpreted in the
context of s 30 and s 31 of the Companies Act to mean
“a commercial or material benefit or advantage, not necessarily a
pecuniary profit, in contradistinction to the kind of benefit or result
which a charitable, benevolent, humanitarian, philanthropic,
literary, scientific, political, cultural, religious, social, recreational or
sporting organisation, for instance, seeks to achieve.”
99. The applicant had an axe to grind. He did not have “clean hands”
or “pure motives.” His actions were not “truly selfless or
altruistic.” He testified at the disciplinary enquiry that he made the
disclosure because the department was not settling with him and
because he (without reason) feared for his life. For these reasons
the applicant disqualified himself from claiming the protection
under the PDA.
100. The respondents persisted in justifying the charge of
53 Street (above)at 842a – 843b
54 Communication Workers Union v Mobile Telephone Network (Pty) Ltd (above)
28
insubordination because the applicant refused to return the
department’s documents, despite the rule nisi being discharged
and the applicant being found not guilty at the disciplinary
enquiry. The contention was that the PDA did not authorize the
applicant to remove and withhold documentation from the
employer.
101. With regard to the relief claimed, the respondents acknowledged
that compensation involves the payment of a sum of money 55 for
pecuniary and nonpecuniary loses 56 subject to fairness to both
parties.57
102. The applicant was not dismissed and has been fully
remunerated. As his claim is based on alleged insults and ill
treatment short of defamation 58 there is no reason to link his
claim to his remuneration the amount of which, in any event, has
not been proved. The applicant’s claim was delictual and none of
the factors for assessing compensation for damages to his
personality59 were canvassed during the trial.
103. The respondents deny that the applicant is entitled to costs of
legal representation at the disciplinary enquiry as they were
incurred at his instance. Furthermore, as a matter of policy
employees should not be able to recover such costs.
55 Russell NO & Loveday NO v Collins Submarine Pipelines Africa (Pty) Ltd 1975 (1) SA 110 (A)
at 145D – E
56 Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (above)
57 Whall v Brandadd Marketing (Pty) Ltd (1999) 20 ILJ 1314 (LC)
58 Brenner v Botha 1956 (3) SA 257 (T)
59 Neethlings, Law of Personality (1995), p. 217
29
104. Costs should follow the result.
Legal issues for determination
105. The crux of the case was whether the applicant’s disclosures to
the media were protected under the PDA. Ancillary issues that
arose include the relevance and admissibility of documentary
evidence, the relevance of the evidence of Mokgalabone, the
onus of proof, whether the applicant’s suspension from duty and
disciplinary proceedings constituted “occupational detriment” as
contemplated in the PDA and therefore unlawful, whether the
applicant’s claim for compensation was delictual, and whether
the applicant’s claim for costs of procuring legal representation
for his disciplinary enquiry was competent.
106. The PDA takes its cue from the Constitution of the Republic of
South Africa Act No 108 of 1996. It affirms the “democratic
values of human dignity, equality and freedom”. In this respect its
constitutional underpinning is not confined to particular sections
of the Constitution such as free speech or rights to personal
security, privacy and property. Although each of these rights can
be invoked by whistleblowers, the analysis in this case is from
the perspective of the overarching objective of affirming values of
democracy, of which the particular rights form a part. Democracy
embraces accountability as one of its core values. Accountability,
dignity and equality are the main themes flowing through the
analysis that follows.
Evidence
30
107. The starting point is to clarify the relevance, admissibility, quality
and weight to be attached to the oral and documentary evidence.
Respondents’ failure to testify
108. The applicant testified in person and called one witness
Mokgalabone to corroborate his evidence regarding certain
meetings with the Minister and the Minister’s interventions
regarding the appointment of liquidators, and Mokgalabone’s
own knowledge of operations in the Master’s office regarding
liquidations.
109. The respondents led no evidence. No explanation was tendered
for this failure. They were material witnesses. For instance, only
the Minister could explain his relationship with Motala and
whether he said that he was his friend. Only he could say why he
wanted Motala to attend meetings which were not opened to
other liquidators, why he was dissatisfied with the way in which
the panel operated, whether, and if so, why he circumvented the
ruling of the Kwazulu Natal High Court by having Lategan
appoint Motala while the decision of the Supreme Court of
Appeal was awaited, why he took the extraordinary step of
appointing Lategan to act as Assistant Master in another
jurisdiction in a specific case, why he summarily sidelined the
applicant without following any procedures, whether he made
derogatory, unsubstantiated remarks about the applicant to the
media, whether he lied about the applicant being taken to task for
poor performance and not knowing Motala “from a bar of soap”
after he had disclosed to the applicant that Motala was his friend
31
and whether he subjected the applicant to occupational
detriment.
110. Only the DirectorGeneral could explain why he removed the
applicant from his position as the Managing Director of the unit to
a post that did not even exist without ensuring that his removal
was procedurally and substantively lawful and fair, why he did
not resist this instruction from the Minister, why he discouraged
the applicant from asking the Minister for reasons for sidelining
him, why he did not act on the Vahed and Kinghorn reports, and
if he did, what the outcome was and whether he subjected the
applicant to occupational detriment.
111. Their evidence was relevant to show that any belief that the
applicant held was reckless, dishonest, unreasonable or in bad
faith. And any action against the applicant was lawful and
justified.
112. The failure of a party to call a witness is excusable in certain
circumstances,60 such as when the opposition fails to make out
a prima facie case. 61 But an adverse inference must be drawn if
a party fails to testify or place evidence of a witness who is
available and able to elucidate the facts as this failure leads
naturally to the inference that he fears that such evidence will
expose facts unfavourable to him or even damage his case. 62
60 R v Bezuidenhout 1954 (3) SA 188 (A); S v Kelly 1980 (3) SA 301 (A); Hoffman and Zeffertt
The South African Law of Evidence 4 th Edition 604
61 SA Veterinary Council and Another v Veterinary Defence Association (2003) 2 All SA 156
(SCA) at para 27,43
62Elgin Fireclays Ltd v Webb (above) ; ABSA Investment Management Services [Pty] Ltd v
Crowhurst (above) at 113
32
That inference is strengthened if the witnesses have a public
duty to testify.
113. The respondents are publicly accountable for the actions against
the applicant. Their defence is paid from public funds as will any
compensation award. They owe the applicant and the public an
explanation. The claim is not against them as individuals but in
their official capacities.
114. Their failure to testify results in a dearth of factual material on
their side which makes it impossible to exercise any discretion in
their favour. 63
115. There was no suggestion from Mr Hulley that the respondents
were not available or able to testify. In fact, there was no
explanation at all for why they did not testify.
116. The court must therefore accept the evidence for the applicant,
qualified by its probative value. 64
Probative value of the applicant’s evidence
117. As a mature, legally trained, former public servant who had
extensive experience in a senior position in the department, the
applicant was measured and meticulous in the presentation of
his evidence. He was unwavering in every material respect. His
responses were complete and coherent.
63 Earthlife Africa (Cape Town Branch) v Eskom Holdings Ltd (2006) 2 All SA 632 (W) at para 17
64 S v Ndlovu and Others 2002 (6) SA 305 at 307J308 A
33
118. Whistleblowers who do not also have a personal grievance
against the employer are exceptional. Caution has to be
exercised in assessing the evidence of a whistleblower who is
consumed by ulterior motives. Such a person will not be as
reliable as one who is driven by the singular desire to prevent or
stop wrongdoing. Unquestionably, the applicant was aggrieved
by the way the respondents treated him. That does not
automatically disqualify from being a reliable witness. His
grievance for being removed from his post as the Managing
Director of the unit was manifestly legitimate. That triggered the
disclosures.
119. The more credible were his disclosures, the greater the risk he
was to the Minister, the fiercer his retaliation, the stronger the
legitimacy of his grievance and the more reliable was his
evidence. Retaliating against the applicant as the messenger
instead of responding to his message strengthened the
applicant’s credibility.
120. How the applicant went about making the disclosures also
impacted on his credibility. He willingly accepted Minister
Pahad’s suggestion that he meets with the Minister because he
genuinely wanted to find a resolution to the impasse. Fame and
heroism were not forces that drove him to make the disclosures
to the media. He was therefore unlikely to colour his evidence for
dramatic effect.
Relevance and Reliability of Mokgalabone’s evidence
34
121. Mr Hulley submitted that the evidence of Mokgalabone was
irrelevant because it was not her state of mind that had to be
tested but that of the applicant’s. In those respects that her
evidence was relevant, it was not reliable as it was contrived to
favour the applicant, so he submitted.
122. Mokgalabone’s evidence was relevant firstly, to corroborate the
applicant’s evidence in certain material respects.
123. Secondly, the applicant had to show that his reliance on
information about the workings of the panel was reasonable and
that it was gleaned from someone who was involved
operationally in the system. He had to also show that there was a
rational, objectively fair procedure for appointing liquidators
which was achieving transformation of the liquidation industry by
spreading work equitably to PDI’s, that the system worked well,
and consequently, that the Minister’s interference in seeking the
appointment of Motala was unjustified.
124. Mokgalabone was unhappy about the treatment she and the
panel received from the Minister. However, she was not so close
or disposed to the applicant to tailor her evidence in his favour.
The applicant had asked the office manager for someone who
could assist him with information about the work of the panel.
Mokgalabone obliged. She set about preparing her affidavit even
before discussing the matter with the applicant. They met once
before the press conference. Her “passion for the industry” as
she described it, inspired her to testify.
35
125. Mokgalabone was a reliable witness because she was
knowledgeable about the operations of the Master’s office and
the liquidation industry. She corrected Mr Hulley when he put it to
her that the panel did not have a mandate to investigate the
claims filed by SARS and other creditors because claims were
proved at the first meeting of creditors. Claims, she said, were
not proved at the first meeting of creditors. Ninetynine percent of
claims were simply lodged at the first meeting without the
creditors attending.
126. The more she was crossexamined, the more she exuded
confidence. As a legally qualified person she understood what
information she needed to adduce to verify the panel’s report.
She firmly resisted suggestions that she was not knowledgeable
about the contents of the report. Her calm replies veiled her
irritation at being challenged about her personal knowledge of
the work of the panel.
127. She was genuinely committed to ensuring that the unit was
corruptionfree and transformed to represent PDI’s fairly. The
panel was keenly conscious of the potential for corruption if
responsibility for appointing liquidators rested with an individual
instead of a panel. She understood what needed to be changed
to eliminate corruption and had implemented a plan that was
working to achieve that end.
128. Her responses were direct, unequivocal, firm and confident. To
the suggestion that SARS was “deeply aggrieved” by the
handling of the requisitions by the Mater’s office she replied that
36
the panel members too were also “deeply aggrieved” by SARS’
behaviour.
129. Where her memory failed her and whenever it was suggested
that she was not testifying truthfully or correctly she was keen to
check the files in the Master’s office to verify her testimony. If the
panel’s report was contrived and not drawn from data in the
Master’s office she would have been reluctant to refer to the
source documents. The respondents could have called her bluff if
they genuinely believed that she was misleading the court by
producing the files themselves.
130. Her evidence is admitted in all material respects.
Contradiction
131. In one respect the applicant and Mokgalabone contradicted each
other. The applicant testified that he got the data about Motala’s
appointments from Mokgalabone and that he had received the
panel’s report from which the data was extracted after the press
release.
132. Mokgalabone could not recall whether the applicant had a copy
of the report at their meeting on 5 October 2003 or at the press
conference. She was aware that eventually he did have a copy.
She explained it to him briefly as the focus of the meeting was on
her affidavit.
37
133. Mokgalabone had seen the applicant’s press statement 65 only
after it had been released. She could not recall giving him the
statistics concerning the number of liquidations awarded to
Motala. She denied that she would have done the calculations
herself as she was not good with numbers. She recalled pointing
out the R30m discrepancy between the panel’s report and the
press release but by then the press statement had already been
released.
134. The relevance of the contradiction, it was submitted, was that the
applicant was bent on putting the Minister in a bad light. He
inflated the value of the liquidations in which Motala was
appointed by R30m and did not bother to verify his data.
135. From the way in which the witnesses testified on this aspect, it
seemed that their inconsistency stemmed more from their loss of
memory than any deliberate attempt to mislead the court. The
inconsistency does not show the witnesses to be necessarily
dishonest. It is also not material as the error does not detract
from the central thrust of the applicant’s claim namely, that
Motala was getting the lion’s share of the liquidations.
Documentary evidence
136. Both parties tendered bundles of documents on the basis that
they were what they purported to be, that they were authentic
and could be before court without proof, but the truth of their
contents was not admitted and had to be proved in the ordinary
65 A105 106
38
course. With regard to the record of the disciplinary enquiry,
there was the further admission that it was correct.
137. Other documents in the bundles included press clippings,
judgments, court orders and a document titled “Whistleblowing
a Guideline for Public Sector ManagersPromoting Public Sector
Accountability, Implementing the Protected Disclosure Act.”
138. Mr Hulley objected on several occasions to the applicant being
examined on the contents of the press clippings on the basis that
the applicant’s evidence about their contents amounted to
hearsay.
139. The admission pertaining to the status of the documents, limited
as it was, is nevertheless sufficient evidence to show what
information was available to the applicant and whether he could
rely on them to form a reasonable belief to justify his disclosures
to the media. In International Tobacco Co (SA) Ltd v United
Tobacco Co’s (South) Ltd 1953 (3) SA 343 (W) , evidence of
rumours conveyed to a traveler were admitted as proof that
rumours were circulating, not that the rumours were true. 66
Wright v Does d Tatham 1837 (7) Ad and El 313 was a decision
in which letters written to a testator were admissible to prove not
the truth of their contents but that the testator was a person of
reasonable intelligence and understanding and that he therefore
had testamentary capacity. 67
66 Zeffertt et al The South African Law of Evidence (2003) at 363
67 Zeffertt et al (above) at 363364
39
140. The documents are divisible on the basis of those that were
available when the disclosures were made and those that were
generated later. The former are relevant to prove the
reasonableness of the applicants belief when he made the
disclosures. The latter are relevant to prove whether his belief
remained reasonable throughout, whether they fortified his initial
belief and whether he had reason to withdraw his disclosures or
this action.
Evidence of theTelevision Broadcast
141. Mr Hulley submitted that the evidence of the broadcast on
national television during October 2003 when the Minister
allegedly referred to the applicant in disparaging terms 68 was
inadmissible as it was hearsay. The authenticity of the recording
that was broadcast had to be proved 69 in order to substantiate
his delictual claim for compensation. The broadcasters or other
persons having direct knowledge of their contents had to attest to
the truth of their contents before the broadcasts could be
admissible as proof of his claim in delict.
142. Whether the applicant’s claim is delictual is discussed under
“remedy”. The evidence that the applicant sought to have
admitted is firstly, the fact that there was a broadcast of
statements attributed to the Minister. That is not in dispute. The
fact of the broadcast is admissible and relevant as evidence of
material that shaped the applicant’s belief.
68 A344; A198 – A200
69 S v Ramgobin and Others 1986 (4) SA 117 (N)
40
143. Secondly, the applicant wanted the Minister’s statements that
were broadcast admitted as evidence. What is in dispute is
whether the Minister said what he is alleged to have said. Proof
is required that the Minister issued the statements.
What is hearsay?
144. Under the common law hearsay was defined as
“oral or written statements made by persons who are not
parties and are not called as witnesses(.They) are
inadmissible to prove the truth of the matters stated… 70
145. S 3(4) of the Law of Evidence Amendment Act 45 of 1988
defines it as
“evidence, whether oral or in writing, the probative value of which
depends upon the credibility of any person other than the person
giving such evidence.”
146. The statements were allegedly made by the Minister. Under the
common law the statements are hearsay as the Minister did not
testify.
147. In terms of the statutory definition the alleged utterances are also
hearsay because their probative value depends on the credibility
of the Minister. 71
70 Hoffman and Zeffertt (above) at 623; Estate De Wet v De Wet 1924 CPD 341 at 343
71 Hoffman and Zeffertt (above) at 127; Hewan v Kourie NO and another 1993 (3) SA 233 (T)
41
Admissibility
148. Are the utterances admissible as an exception to the hearsay
rule?72
149. The constitutional right to a fair trial is at the heart of the question
as to whether hearsay evidence is admissible. 73 Hearsay is
inadmissible because it cannot be tested by crossexamination
and is therefore unreliable. 74
150. The singular consideration for the admissibility of hearsay under
s 3(1)(c) Law of Evidence Amendment Act is the interests of
justice.75 The interests of justice is not dependant on whether
the declarant testifies. Nor is the disavowal or nonconfirmation
of a statement enough to prevent it from being admitted, if it is in
the interests of justice to do so. Its reliability can be weakened if
it is disavowed or not confirmed. 76 Prejudice which is always
72 s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 states:
“(1) Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings, unless
(a) …
(b) …
(c) the court, having regard to
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the
person upon whose credibility the probative
value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account,
is of the opinion that such evidence should be admitted in the interests of justice.”
73 S v Ndlovu (above) @ 307 C; GH
74 S v Ndlovu (above) 308 C
75 Shaik v The State (1) [2007] SCA 134 (RSA) at 170171
76 S v Ndlovu para 3132
42
present when hearsay is admitted against a party will not usually
outweigh the interests of justice. 77 To outweigh the interests of
justice it will have to be prejudice of the kind suffered by accused
if the prosecution is allowed to reopen its case to lead hearsay
evidence after the accused have closed their case. 78
151. Safeguards must be applied to ensure a fair trial whenever
hearsay is tendered. What would be appropriate safeguards
could be different for criminal and civil trials 79. In criminal cases
where an accused against whom the statement is sought to be
used is unrepresented, the court must exercise greater caution.
152. These are civil proceedings in which the parties are legally
represented and are themselves legally trained. 80
153. They are in terms of the PDA and the LRA. The movement
towards “good, effective, accountable and transparent
governance”81 is the overarching purpose of the PDA. Fairness
is the cornerstone of the LRA. Both statutes serve to protect
employees as vulnerable people.
154. Governance in the public service is at issue. So is the credibility
and dignity of the Minister and the applicant. Both were high
ranking public figures. As the utterances were broadcast the
public is owed an explanation. The public has an expectation
77 S v Ndlovu para 13; 49
78 S v Mbanjwa and Others (2003) 1 All SA 740 (D) at 741 de
79 Executor Estate Phillips v Government of the RSA 2003 (3) All SA 575 at 581a; S v Shaik v
The State (above)
80 Contrast with S v Ndlovu (above) at 307 DE
81 Preamble to PDA
43
created by s 195(1) of the Constitution that public administration
would be governed by democratic values and principles,
including the following:
“(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with
timely, accessible and accurate information.
(h) Good humanresource management and careerdevelopment practices, to maximise
human potential, must be cultivated.”
155. An overly technical approach that excludes the content of the
Minister’s statements would defeat the purposes of the statutes
and the scheme of the Constitutional project which they are
designed to serve 82. The nature of the proceedings therefore,
favour the admission of the hearsay statements in the interest of
justice.83
156. The nature of the hearsay sought to be admitted 84 is the oral
evidence of the applicant that the Minister made the statements.
It was not disputed that the statements were broadcast. Only the
authenticity of the broadcast was put in issue to deny that the
Minister said what was broadcast.
157. That happened when Mr Hulley objected to the applicant being
examined on the contents of the broadcast. Nothing was
specifically pleaded in the statement of case or defence about
the broadcast. The applicant mentioned it in the Minutes of the
82 Meledad v National Employers General Insurance Co Ltd 1992 (1) SA 494 (W) at 498I499G ;
Executor Estate Late Phillips v Government of the RSA (above) at 580
83 S 3(1)(c)(i) of the Law of Evidence Amendment Act
84 S 3(1)(c)(ii) of the Law of Evidence Amendment Act
44
Pretrial Conference of 27 January 2005 in the context of
elucidating the relief claimed and the criteria to be considered to
assess compensation. The broadcast is one of several factors
that the applicant wants to be considered in support of his claim
for 12 months remuneration. When the respondents requested
further particulars for trial no particulars were sought about the
broadcast or any other aspect of the calculation of compensation.
158. It follows from this that the purpose for which the hearsay is
tendered85 is firstly not central to the applicant’s case. It was
limited to proving the amount of the compensation claimed.
Courts are slow to admit hearsay if it is central to the case. 86
Secondly, the applicant had no prior notice that a challenge
would be pitched during the trial at the admissibility of the content
of the statements that were broadcast. Although no reasons were
advanced as to why someone was not available and able to
testify, it is not hard to see why the applicant called no one. The
Minister was the best person to say whether he issued the
statements.
159. In Executor Estate late Phillips (above) the probative value of
sworn evidence tested under crossexamination and found to be
credible by a previous court was held to be high 87. In S v Ndlovu
(above) the Supreme Court of Appeal allowed a warning
statement by one accused to be admitted against a coaccused
before the defence had closed its case. 88 In the recent criminal
85 S 3(1)(C(iii)
86 Executor Estate Late Phillips v Government of the RSA (above)
87 Executor Estate Late Phillips v Government of the RSA (above) at 583b
88 S v Mbanjwa and others (2003) 1 ALL SA 740 D at 741e
45
case of Shaik v The State (above), the Supreme Court of Appeal
expanded the limits of the interest of justice to admit hearsay
evidence of an encrypted fax which was central to one of the
main charges. 89 Despite it being common cause that the author
of the encrypted fax was unreliable and dishonest, the court
found that it was highly improbable that the content of the fax
would have been false. 90
160. The probative value of the evidence in this case 91 is enhanced
by the following:
160.1.The fact that the statements were broadcast is not in dispute.
160.2.The broadcast was on national television. The broadcaster’s
reputation for credible, reliable and accurate reporting would have
been at risk if it disseminated false information. Moreover, it could
find itself being disciplined by the media regulatory authorities.
160.3.There was no retraction or correction by the broadcaster or the
Minister despite the potentially defamatory content of the
statements.
160.4.The broadcast was reported on in the print media, also without
attracting any retraction or correction from the Minister.
161. In Shaik v The State , the author of the encrypted fax refused to
come to South Africa to testify. The Supreme Court of Appeal
89Shaik v The State para 169179
90 Shaik v The State para 174
91 S 3(1)(c)(iv) of the Law of Evidence Amendment Act
46
admitted the fax because it was open to the accused to call him
as a witness or apply to have his evidence obtained on
commission.
162. In this case the reason why the evidence was not given by the
person upon whose credibility the probative value of the
evidence depends 92 was because that person was the Minister,
who failed to testify. He had direct knowledge of what he said.
Unlike Shaik who had the advantage of having attended
meetings where the fax was discussed, the applicant was not
present when the Minister allegedly made the statements.
Contesting the authenticity of the statement lay firmly, if not
exclusively, within his grasp. The applicant would have been at a
disadvantage if the Minister testified and denied having made the
statement. He chose not to testify and must bear the adverse
consequences of that election.
163. Whereas, in Shaik v The State (above) the court found that the
accused would not be prejudiced because crossexamination of
the author of the fax was unlikely to yield positive results for
them93 any prejudice that the Minister might endure by the
admission of the content of the broadcast 94 could have been
avoided if he had testified.
164. That is a factor 95 that leads inevitably to a finding that on the
probabilities, the Minister did make the statement. As a highly
92 S 3(1)(c)(v) of the Law of Evidence Amendment Act
93 Shaik v The State para 177
94 S 3(1)(c)(vi) of the Law of Evidence Amendment Act
95 S 3(1)(c)(viii) of the Law of Evidence Amendment Act
47
qualified lawyer he would have been aware that the statements
were potentially defamatory and that his failure to correct any
inaccuracies in the broadcast could aggravate damages.
165. In all the circumstances the evidence of the content of the
broadcasts is admitted in the interests of justice.
The philosophy and purpose of the PDA
166. Internationally, there is growing recognition that whistleblowers
need protection. 96 Whistleblowing is healthy for organizations.
Managers no longer have a monopolistic control over
information.97 They have to be alert to their actions being
monitored and reported on to shareholders and the public.
Everyone is alive to their loyalty to the organization. As a safe
alternative to silence, whistleblowing deters abuse. 98
167. If employees did not turn a blind eye or were not afraid to rock
the boat and if employers did not turn a deaf ear or blame the
messenger instead of heeding the message, many catastrophes
could have been averted. 99
168. Whistleblowers are not impipis, a derogatory term reserved for
apartheid era police spies. Whistleblowing is neither selfserving
96G. Stencell v The Crown, Grievor v. The Crown in Right of Ontario (Office of the Provincial
Auditor), Employer Ontario Public Service Grievance Board 1996 WL 1791337 (Ont.P.S.G.B.)
1996 CarswellOnt 3335 para 187 189; Richard Calland et al WhistleBlowing around the World –
Law, Culture and Practice (2004); John Bowers Q.C. et al Whistleblowing the new law (1999)
97Calland et al 6
98 Calland et al 7
99 Bowers (above) Chapter 1
48
nor socially reprehensible. In recent times its pejorative
connotation is increasingly replaced by openness and
accountability.100 Employees who seek to correct wrongdoing, to
report practices and products that may endanger society or resist
instructions to perform illegal acts, render a valuable service to
society and the employer. Still, of 230 whistleblowers in the
United Kingdom and the USA, a 1999 survey found that 84
percent lost their jobs after informing their employer of fraud,
even though they were not party to it. 101
169. Employees have a responsibility to disclose criminal and other
irregular conduct in the workplace. 102 Public servants have an
obligation to report fraud, corruption, nepotism, maladministration
and other offences. 103 A company can have a cause of action
against its directors for failing in their duty to report
wrongdoing.104
170. Employees also have to act in the employer’s best interest, to
observe its right to confidentiality, to be loyal and ultimately to
preserve its viability, good name and reputation.
171. These obligations are owed to the employer as an organization
and to the state as the employer in the case of public servants. It
does not attach to individuals. 105 The defence raised by a
director that he was simply doing what “the company” wanted of
100 Bowers (above) 12
101 Bowers (above) 10
102 Preamble to the PDA
103 Clause 4.10 of the Public Service Code of Conduct
104 RBG Resources Plc v Rastogi [2002] EWHC 2782; 2002 WL 31784514
105 Stencell v The Crown para 191
49
him even though this was fraudulent, would be unsustainable as
a company has a legal identity separate from its directors.
172. The duty of confidence and loyalty to the employer is not
absolute that it can protect an employer or other employees who
act wrongfully. 106 It is not breached if, for instance, a teacher
discloses to a former employee or trustee of a school that a
student, who is the sister of the principal, was alleged to have
mistreated children. 107 Likewise, reporting genuine concerns
about the way a company is operating to a shareholder is not an
external disclosure. 108
173. To manage the conflict between the duty to disclose and the duty
of confidence, employers must make available effective internal
procedures for reporting wrongdoing. 109 They should also
ensure that its policy on the management of confidential
information is clear and consistently applied. 110
174. The overarching motivation for the PDA and similar legislation
internationally is to protect employees who disclose information
about improprieties by their employers or other employees. 111
Employees have insider information of wrongdoing and are
usually first to detect it. Inherent in the jurisprudence is the
acknowledgment that employees are vulnerable people. They
106 Stencell v The Crown para 190 RBG Resources Plc v Rastogi (above); A Horing General (?)
107 Mama East African Women’s Group, Trustees of v Dobson [2005] UKEAT 0219_05_2306
(23 June 2005)
108 H and M (above)
109 Stencell v The Crown
110 Stencell v The Crown para 195
111 Stencell v The Crown para 189
50
are especially vulnerable because by disclosing information
about the employer and other employees, conflicts arise with
their duty of loyalty and confidence which exposes them to
retaliation. Although employers and employees have an
obligation to disclose wrongdoing, statutory protections exist only
for employees. 112
175. An equally important aim of the PDA and the very reason for
protecting whistleblower employees is “to promote the
eradication of criminal and other wrongful conduct in organs of
state and private bodies.” 113 This aim is not recaptured in the
objects clause of the PDA. 114 Framed as it is in the context of
labour law, sight can easily be lost of the aim of having a crime
free and healthy environment. 115 The PDA assumes that
employers and other recipients of information would investigate
complaints but it imposes no obligation on them to do so. The
trauma which a whistleblower undergoes can come to naught if
nothing is done to investigate the disclosures or act against
wrongdoers. Any remedy awarded to the whistleblower
ultimately by a court is in that instance a pyrrhic victory.
176. The PDA is conceived as a fourstaged process that begins with
an analysis of the information to determine whether it is a
disclosure. If it is, the next question is whether it is protected. The
third stage is to determine whether the employee was subjected
112 Preamble to PDA; s 2 of PDA
113 Preamble to the PDA
114 S 2(1) of the PDA
115Borak S.W: The legacy of "Deep throat": The disclosure process of the whistleblower
Protection Act Amendments of 1994 and the No Fear Act of 2002 59 U . Miami L. Rev. 617 (July,
2005) at 619
51
to any occupational detriment and lastly, what the remedy should
be award for such treatment. It is not an enquiry into wrongdoing
but about whether the employee deserves protection. Structured
in this way the inclination to shift the emphasis from the conduct
and credibility of the wrongdoer to that of the whistleblower is
real.
177. As the PDA focuses narrowly on protecting whistleblowers, it
can fall short of producing outcomes that satisfy its crime fighting
aims.116 Employees who are more concerned with getting their
message out and less fearful of retaliation, could be
disappointed.
Disclosure
178. “ Disclosure” in s 1 of the PDA means any disclosure of
“information” about the conduct of “any employer by an employee
who has reason to believe” that the information “shows or tends
to show” certain “improprieties”.” 117
179. The requirement is that information must be disclosed.
Information includes but is not limited to facts. By its nature
uncovering impropriety often starts with a suspicion. Information
would include such inferences and opinion based on facts which
show that the suspicion is reasonable and sufficient to warrant an
investigation.
116 Borak 621
117 The definition of a “qualifying disclosure” in s 1 of the Public Interest Disclosure Act 1998
(PIDA) inserted after Part IV of the Employment rights Act 1996 as s 43B(1) and (2) in the United
Kingdom, is substantively incorporated into the definitions of “disclosure” and impropriety” in the
PDA
52
180. The standard of quality that the information must meet is pitched
no higher than requiring the impropriety to be “likely”. It is enough
if the information “tends to show” an impropriety. That anticipates
the possibility that no impropriety might ever be committed or
proven eventually. If the suspects are cleared, the protection will
not be lost. 118 “Likely” and “tends to show” must therefore mean
that the impropriety can be less than a probability but must be
more than a mere possibility. 119
181. “Smelling a rat” is not information. 120 Nor are unsubstantiated
rumours.121
182. In the nature of disclosures about impropriety, embarrassment
follows. Embarrassment therefore cannot disqualify reports from
being disclosures.
Impropriety
183. “Impropriety” includes the following categories of conduct
irrespective of whether it occurs in or outside South Africa or
whether South African law or that of any other country applies to
the impropriety:
118 In International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers
Local Union 771, through its Officers, Charles D. Gumulcak, President and Bert J. Royer,
Business Manager Her Majesty The Queen ex rel Linda Merk SKQB 332, 2006 C.L.L.C 210029,
50 C.C.E.L (3d) 306 at para 20 (“Merk”) . Merk blew the whistle on two supervisors of the union
which employed her as a bookkeeper. Although the supervisors were cleared of any wrongdoing,
she was nevertheless compensated for loss of income.
119 Kraus v Penna Plc 2003 WL 22769581 (EAT) [2004] I.R.L.R. 260; Boulding v Land
Securities Trillium (Media Services) Ltd 2006 WL 1666956 (EAT) para 25
120 Communication Workers Union v Mobile Telephone Network (Pty) Ltd (above)
121 Bower (above ) 19
53
183.1.a criminal offence has been committed, is being committed or is
likely to be committed;
183.2. a person has failed, is failing or is likely to fail to comply with any
legal obligation to which that person is subject;
183.3. unfair discrimination as contemplated in the Promotion of Equality
and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000); or
183.4. any matter referred to in paragraphs (a) to (f) of the definition
which has been, is being or is likely to be deliberately concealed 122
184. The disclosure must be of improprieties. Disclosure about
disagreements with the employer’s policy is not disclosure of
impropriety.123 Information may be in the public interest, eg
whether an employer contributes to the coffers of a particular
political party, but that would not by itself be an impropriety.
“(R)eason to believe ”
185. The text “(a)ny employee who has reason to believe” 124 pitches
the test as subjective in that the employee who makes the
disclosure has to hold the belief. It is objective in the sense that
122 s 1 of the PDA; for the UK equivalent see the definition of “qualifying disclosure” in s 43B(1)
and (2) of PIDA
123 The Alberta Union of Provincial Employees and The Government of the Province of Alberta
with respect to The Grievance of Guy Smith 1111 WL 6044 Alberta Arbitration Board Para 90
(“Guy Smith”) .
124 The PIDA equivalent is “in the reasonable belief of the worker” s 43(B)(1) of PIDA
54
the belief has to be reasonable. Whether the belief is reasonable
is a finding of fact based on what is believed. 125 Thus if the
employer clearly has no legal obligation, the employee’s belief
that he does cannot be reasonable. 126 Conversely, if some
wrong doing is occurring which does not fall within the definition
of impropriety, but the employee reasonably believes that it does,
reporting it would still qualify as a disclosure if the employee
reasonably believes that it does amount to an impropriety. 127
186. The PDA does not require an employee to prove the truth of
information disclosed. 128 If the employee believes that the
information is true it would fortify the reasonableness of his
belief,129 from which, in turn, his bona fides can be inferred. 130
187. The requirement of “reason to believe” 131 cannot be equated to
personal knowledge of the information disclosed. That would set
so high a standard as to frustrate the operation of the PDA.
Disclosure of hearsay would, depending on its reliability, be
reasonable.
188. A teacher who received a complaint from a student that another
student mistreated children at the cr èche was found to have had
a reasonable belief that the information she disclosed tended to
show that a criminal offence had been committed and that it
125 Boulding (above)
126 Kraus v Penna Plc ( above)
127 Bower (above) 19
128 Communication Workers Union v Mobile Telephone Network (Pty) Ltd (above) at para 21 ; H
& M Ltd (above)
129 Darnton v University of Surrey (above)
130 Street (above)
131 Or “reasonable belief” as required in s 43B(1) of the PIDA
55
warranted investigation as “ostensibly serious allegations.” 132
189. Reliance on official documents of the employer to formulate a
belief would likewise be reasonable even if the employee does
not have personal knowledge of the truth of their contents.
190. A mistaken belief or one that is factually inaccurate can
nevertheless be reasonable 133, unless the information is so
inaccurate that the public can have no interest in its
disclosure.134
191. Seldom is there a whistleblower who does not also have an axe
to grind or who is not obsessed or preoccupied with personal
issues. If the primary or exclusive purpose of reporting is to
embarrass or harass the employer the reasonableness of the
employee’s belief is questionable.
192. Malcontents and employees who slander the employer without
foundation or disagree on the way the organisation is managed
do not enjoy whistleblower protection. 135 Thus a shop steward
who was also a public servant was validly disciplined for issuing
statements to the media concerning the government’s social
policy on child welfare. His statements went beyond labour
relations issues. 136 The state needs to have employees who can
132 Mama East African Women’s Group, Trustees of v Dobson (above) para 4 quoting para 12
and 14 of judgment of Employment Tribunal
133 Darnton v University of Surrey 2002 WL 31676347 (EAT) ; [2003] I.C.R. 615 ; [2003] I.R.L.R.
133; De Haney v Brent MIND, 2003 WL 21047338 (EAT) ; Bowers (above) 19
134 Stencell v The Crown para 222
135 Stencell v The Crown para 196 ; Guy Smith (above)
136 Guy Smith (above)
56
put aside their personal views and implement its policies.
193. Mr Stencell, an Accountant employed by the office of the
Financial Auditor lodged three complaints to the Premier of
Ontario. The first complaint was personal concerning
discrimination against him as a natural parent who was denied
the same benefits as an adoptive parent. The other complaints
related to possible fraud. The arbitration panel found that his
belief was in good faith; that he was mistaken in his analysis; the
information he disclosed was inaccurate and therefore not of
public interest; that he did not exhaust his internal remedies and
that his personal complaint seriously diluted his claim for
protection against employer punishment. 137 The panel found
that the employer had spent time and energy to investigate and
explain its “measured conclusions” about his concerns, but that
Stencell remained unconvinced not because of the quality of its
explanations but his fixed idea that his perception of the facts
was correct. 138
194. An explanation that is becoming more common for employees
reporting information about their employers – and one at which
the PDA is specifically targeted – is that some employees care
enough to want to see that the wrongs of the employer and other
employees are put aright so that their workplace in particular and
society in general can benefit. That could be a response to a
137 Stencell v The Crown para 201, 218, 222 and 225
138 Stencell v The Crown para 218
57
moral or legal calling 139, a fear for the health 140 or economic
wellbeing of the public 141, or the organisation 142 or simply a
desire to see that justice is done. Such employees are entitled to
a safe environment which would protect them against the risks of
disclosure.
What is a protected disclosure?
195. A “protected disclosure” 143 means “a disclosure made to
a. a legal adviser in accordance with section 5;
b. an employer in accordance with section 6; 144
c. a member of Cabinet or of the Executive Council of a province in
accordance with section 7 145;
139 eg the disclosures by Victoria Johnson who exposed attempts by some politicians in the City
of Cape Town to misrepresent that public opinion favoured changing certain street names.
(Calland et al 4252)
140 eg the disclosure by Jiang Yamyong who blew the whistle on Chinese governments cover up
of the true scale of the Severe Acute Respiratory Syndrome (SARS) virus (Calland et al 5360)
141 eg the disclosures by Sherron Watkins of accounting irregularities at Enron Corporation
(Calland et al 6172
142 eg Cynthia Cooper’s fear of retaliation was outweighed by her concern for the importance of
exposing Worldcom’s unlawful accounting practices (Borak 621).
143 s 1 of PDA
144 A protected disclosure to an employer is
“(1) Any disclosure made in good faith
(a) and substantially in accordance with any procedure
prescribed, or authorised by the employee's employer
for reporting or otherwise remedying the impropriety
concerned; or
(b) to the employer of the employee, where there is no procedure as contemplated in
paragraph (a), is a protected disclosure.
(2) Any employee who, in accordance with a procedure authorised by his or her employer, makes
a disclosure to a person other than his or her employer, is deemed, for the purposes of this Act,
to be making the disclosure to his or her employer.”
145 S 7 Protected disclosure to member of Cabinet or Executive Council
145 S 7 Protected disclosure to member of Cabinet or Executive Council
Any disclosure made in good faith to a member of Cabinet or of the Executive Council of
a province is a protected disclosure if the employee's employer is
(a) an individual appointed in terms of legislation by a member of Cabinet or
of the Executive Council of a province;
(b) a body, the members of which are appointed in terms of legislation by a
member of Cabinet or of the Executive Council of a province; or
58
d. a person or body in accordance with section 8 146;
e. or any other person or body in accordance with section 9, but does
not include a disclosure
i.in respect of which the employee concerned
commits an offence by making that disclosure; or
ii.made by a legal adviser to whom the information
concerned was disclosed in the course of obtaining
legal advice in accordance with section 5”
196. Consistent with the approach in Canada 147, the United
Kingdom148 and the United States of America 149, the scheme of
the PDA encourages internal procedures and remedies to be
exhausted before the disclosure is made public.
197. Good faith is not a requirement for disclosures to a legal
advisor.150 It is a requirement for any disclosure to the
(c) an organ of state falling within the area of responsibility of the member
concerned.
146 S 8 Protected disclosure to certain persons or bodies
(1) Any disclosure made in good faith to
(a) the Public Protector;
(b) the AuditorGeneral; or
(c) a person or body prescribed for purposes of this section; and
in respect of which the employee concerned reasonably believes that
(i) the relevant impropriety falls within any description of matters which, in
the ordinary course are dealt with by the person or body concerned; and
(ii) the information disclosed, and any allegation contained in it, are
substantially true,
is a protected disclosure.
(2) A person or body referred to in, or prescribed in terms of, subsection (1) who is of the
opinion that the matter would be more appropriately dealt with by another person or body referred
to in, or prescribed in terms of, that subsection, must render such assistance to the employee as
is necessary to enable that employee to comply with this section.
147 Stencell v The Crown para 192
148 Calland et al, Bower
149 Calland et al
150 s 5 of PDA
59
employer151, to a member of Cabinet 152, to the Public Protector
and AuditorGeneral 153 and any other person or body 154.
Disclosure to the Public Protector and the AuditorGeneral and
general disclosures also require an employee to “reasonably
believe” ( sic) that the information is “substantially true” 155 to be
protected. Disclosures to the employer do not have to be
“substantially true”. The requirements in the definition of
“disclosure” viz that the employee must have “reason to believe”
that an impropriety is merely “likely” is significantly elevated in
order for a disclosure to qualify for protection. 156
197. The tests are graduated proportionately to the risks of making
disclosure. Thus the lowest threshold is set for disclosures to a
legal advisor. Higher standards have to be met once the
disclosure goes beyond the employer. The most stringent
requirements have to be met if the disclosure is made public or
to bodies that are not prescribed, for example the media.
198. There should be reasonable steps to investigate the matter. The
employer should be given a chance to explain or correct the
situation. The motivation for this approach is not to cover up
wrongdoing but because the internal remedy may be the most
effective.157 Genuine engagement on the issues minimizes the
risks for both parties. An employee who refuses to engage runs
151 s 6 of PDA
152 s 7 of PDA
153 s 8 of PDA
154 s 9 of PDA
155 s 8(i)(ii) and s 9(1)(a) of PDA
156 This staged process is emulated from PIDA. See also Street para 58
157 Stencell v The Crown para 192
60
the risks of not being able to show that his belief was reasonable.
An employer who refuses to engage cannot later be heard to
complain that it was embarrassed or that it was brought into
disrepute.
199. The definition of “protected disclosure” does not require an
employee to formally request the recipient of the disclosure to
conduct an investigation. It is implicit in the act of reporting
wrongdoing to such persons or bodies that an investigation must
follow. Uppermost on the list of persons responsible for
investigating improprieties is the employer.
General Protected Disclosures
200. Several hurdles must be overcome before disclosures can qualify
as general protected disclosures. 158
158 s 9 of PDA “General protected disclosure
(1) Any disclosure made in good faith by an employee
(a) who reasonably believes that the information disclosed, and any
allegation contained in it, are substantially true; and
(b) who does not make the disclosure for purposes of personal gain, excluding any reward
payable in terms of any law;
is a protected disclosure if
(i) one or more of the conditions referred to in subsection (2) apply; and
(ii) in all the circumstances of the case, it is reasonable to make the
disclosure.
(2) The conditions referred to in subsection (1) (i) are
(a) that at the time the employee who makes the disclosure has reason to
believe that he or she will be subjected to an occupational detriment if he
or she makes a disclosure to his or her employer in accordance with
section 6;
(b) that, in a case where no person or body is prescribed for the purposes of section 8 in
relation to the relevant impropriety, the employee making the disclosure has reason to believe
that it is likely that evidence relating to the impropriety will be concealed or destroyed if he or she
makes the disclosure to his or her employer;
makes the disclosure to his or her employer;
(c) that the employee making the disclosure has previously made a disclosure of
substantially the same information to
(i) his or her employer; or
(ii) a person or body referred to in section 8,
61
201. First, the disclosure must be in good faith. Good faith in the
context of protected disclosures was discussed in Street (above).
202. Auld LJ summarized the definition thus : “
Shorn of context, the words "in good faith" have a core meaning of
honesty. Introduce context, and it calls for further elaboration.
Thus in the context of a claim or representation, the sole issue as
to honesty may just turn on its truth. But even where the content of
the statement is true or reasonably believed by its maker to be
true, an issue of honesty may still creep in according to whether it
is made with sincerity of intention for which the Act provides
protection or for an ulterior and, say, malicious, purpose.”
203. By setting good faith as a specific requirement, the Legislature
must have intended that it should include something more than
reasonable belief and the absence of personal gain. An
in respect of which no action was taken within a reasonable
period after the disclosure; or
(d) that the impropriety is of an exceptionally serious nature.
(3) In determining for the purposes of subsection (1) (ii) whether it is reasonable for the
employee to make the disclosure, consideration must be given to
(a) the identity of the person to whom the disclosure is made;
(b) the seriousness of the impropriety;
(c) whether the impropriety is continuing or is likely to occur in the future;
(d) whether the disclosure is made in breach of a duty of confidentiality of
the employer towards any other person;
(e) in a case falling within subsection (2) (c), any action which the employer or the person or
body to whom the disclosure was made, has taken, or might reasonably be expected to have
taken, as a result of the previous disclosure;
(f) in a case falling within subsection (2) (c) (i), whether in making the disclosure to the
employer the employee complied with any procedure which was authorised by the employer; and
employer the employee complied with any procedure which was authorised by the employer; and
(g) the public interest.
(4) For the purposes of this section a subsequent disclosure may be regarded as a
disclosure of substantially the same information referred to in subsection (2) (c) where
such subsequent disclosure extends to information concerning an action taken or not
taken by any person as a result of the previous disclosure.”
62
employee may reasonably believe in the truth of the disclosures
and may gain nothing from making them, but his good faith or
motive would be questionable if the information does not disclose
an impropriety or if the disclosure is not aimed at remedying a
wrong.
204. Good faith is a finding of fact. The court has to consider all the
evidence cumulatively to decide whether there is good faith or an
ulterior motive, or, if there are mixed motives, what the dominant
motive is .159
205. A whistleblower is unlikely to have “warm feelings” about the
wrongdoing or person against whom disclosure is made. 160 At
the other extreme a whistleblower who is overwhelmed by an
ulterior motive, that is, a motive other than to prevent or stop
wrongdoing, may not claim the protection under the PDA. The
requirement of good faith therefore invokes a proportionality test
to determine the dominant motive.
206. In the context, good faith is required to test the quality of the
information. A malicious motive cannot disqualify the disclosure if
the information is solid. If it did, t he unwelcome consequence
would be that a disclosure would be unprotected even if it
benefits society.161 Such might be the case of an accountant
who out of malice discloses to SARS that his employer is
evading taxes. Or, an employee of a trade union who bears a
grudge against its management might blow the whistle to the
159 Lucas v Chichester Diocesan Housing Association Ltd 2005 WL 460717 (EAT) 7
160 Street para 72
161 Bowers (above) 74
63
registrar of trade unions that the trade union is not complying
with its constitution and the LRA. A malicious motive could affect
the remedy awarded to the whistleblower.
207. The second requirement viz that the employee must have a
reasonable belief, has been discussed in the context of the
definition of “disclosure”. In the context of determining whether a
disclosure is protected the test is more stringent. The
reasonableness of the belief must relate to the information being
substantially true.
208. The third requirement that the disclosure should not be for
“personal gain” 162 should be construed to include any
commercial or material benefit or advantage received by or
promised to the employee as a quid pro quo for the disclosure
and any expectation by the employee of a benefit or advantage
that is not due in terms of any law. “Cheque book journalism”
falls into this category. If the employee benefits incidentally from
the disclosure it will be protected provided that was not the
purpose of making the disclosure.
209. As a form of discrimination, whistleblowing legislation deserves
“a certain generosity in …. construction” .163 The word “any” in
“any other person or body” 164 and “any disclosure” 165 should be
construed widely 166, constrained only by the definition of
162 s 9(1)(b) of PDA
163 Boulding (above) para 24
164 s 1(e) definition of “protected disclosure”
165 s 9 (1) of the PDA
166 Commissioner for Inland Revenue (above)
64
“disclosure” and the requirements of s 9. 167
210. Good faith, reasonable belief and personal gain overlap 168 and
are mutually reinforcing. A weakness in one can be
compensated for by the other(s). Thus a doubtful motive can be
compensated for by a strong belief based on sound information.
211. Each of the three requirements in s 9(1) should be construed
narrowly so as not to defeat the objectives of eliminating crime,
promoting accountable governance and protecting employees
against reprisals.
212. This view is fortified by the fact that the disclosure has to be
filtered further through two more tests. Firstly, the disclosure
must meet one or more of the four conditions in s 9(2). Secondly,
it must be reasonable to make the disclosure. Reasonableness
must be assessed against the seven criteria in s 9(3). These two
tests shift the focus away from an assessment of the employee’s
good faith and the reasonableness of his beliefs to more tangible
and objectively determinable facts.
213. A narrow approach to s 9(1) could therefore block the enquiry
firstly into facts that are more easily ascertainable in ss 9(2) and
(3) and secondly, into the alleged impropriety and the retaliation.
214. The defence that any one of the requirements in s 9 is lacking
must be specifically pleaded and proved. Deciding whether all
167 H and M (above)
168 Street para 26, 4950
65
the requirements are met is a question of fact. The more serious
the allegation, the more cogent the proof. The threshold of proof
required for each requirement must be assessed from all the
facts, case by case. This is the approach adopted in Street169
and endorsed in Lucas.170 Contrary to Mr Hulley’s submission,
Street did not hold that the employee bears the onus of proving
good faith. To saddle the employee with a burden of proof would
set too high a standard which, if not met, could disqualify the
disclosure and bar an enquiry into whether the employer
breached the PDA by subjecting the employee to an
occupational detriment. Unfair labour practices and unfair
dismissal are occupational detriment. 171 Ultimately, the
employer bears the burden of proving that it did not commit an
unfair labour practice or dismiss the employee unfairly.
Did the applicant reasonably believe that the information disclosed, and the
allegations contained in it, are substantially true”? 172
215. The meaning of “substantially true” must lie closer to the total
than to a trivial degree of truth. 173 Information of quality and
quantity go to determining whether the disclosure is substantially
true.
216. This case differs significantly from that of a public servant who
makes adverse statements to the press about a government
169 Para 57
170 Para 39
171 S 1(b) definition of “occupational detriment”
172 s 9(1)(a) of the PDA
173 Bower (above) 35
66
decision without being involved in the decisionmaking or taking
steps to get to know the grounds for it. 174
217. The applicant believed that a crime was or was likely to be
committed; that the Minister was failing to comply with his legal
obligations; that the Minister committed unfair discrimination as
contemplated in the Promotion of Equality and Prevention of
Unfair Discrimination Act, No 4 of 2000; and that these
improprieties were likely to be deliberately concealed. 175
218. His belief was based on the Vahed and Kinghorn reports and his
personal encounters with the respondents and Motala.
219. His belief was reasonable because firstly, the Vahed and
Kinghorn reports were prepared by responsible persons whose
duty was to prepare them. They were official documents of the
department. The bona fides and competence of the preparers of
the reports were not questioned.
220. Secondly, he had personal knowledge of some of the
information. He interacted with the respondents and Motala. He
also knew that the panel within his unit was succeeding in
transforming the liquidation industry to ensure a more equitable
distribution of work to include PDI’s. Consequently, the Minister’s
persistence in having Motala appointed could not have been
because transformation was not being achieved.
174 Haydon v. Canada (Treasury Board) 2004 CF 749, 2004 FC 749, 253 F.T.R. 230, [2005] 1
F.C.R. 511
175 s 1(a), (b), (f) and (g) of the PDA –definition of “disclosure”
67
221. Thirdly, he knew that the DirectorGeneral was also concerned
about the Minister’s relationship with Motala.
222. Fourthly, no one was willing to investigate his allegations – not
the Director General, the Public Protector, the AuditorGeneral
or Minister Pahad.
223. He also believed that the information he disclosed was
substantially true because :
224. He had personal knowledge. He knew what the relationship
between Motala and the Minister was because they told him that
they were friends. He knew that the Minister preferred Motala
over other liquidators.
225. The Kinghorn report 176 which stated that there was alleged
corruption involving R950 000.00 noted that :
“Information was received about the appointment of certain
liquidators into the affairs of RAG N221/02. As the first
appointment was made in total disregard of the set principals ( sic)
of the Insolvency Act of 1936 the appointment was set aside by
the Supreme court in Durban. A senior member of the department
then went as far as to appoint a master from another master’s
office as master in Pietermaritzburg to appoint the liquidator that
was wrongly appointed. As RAG is the biggest liquidation in South
Africa the benefits that can be begotten by a liquidator is far
reaching. The happenings in this case seems to be linked to other
similar cases at various Master’s offices in RSA and must be
176 A 96
68
investigated intensively. Because of the scale of this investigation
it will still take some time before a clear result can be given.”
226. That information was supplemented by his personal knowledge
that the Minister had appointed Lategan, the “senior member of
the department”, who appointed Motala, whose initial
appointment by the Minister had been set aside.
227. The Vahed report stated that 177:
227.1. Two Assistant Masters from the Masters’ Office in
Pietermaritzburg appointed four provisional liquidators to RAG
which was placed in provisional liquidation on 28 May 2002.
227.2. Motala was aggrieved about not being appointed.
227.3. SARS’ requisition in support of Motala lacked “clarity and
authenticity.” Motala was given an extension of time to submit a
proper requisition but he did not comply.
227.4. Motala’s requisition reflected SARS’ claims as R106 400,00 for
VAT and R5 039 671,23 for PAYE.
227.5. Mr Lyn, the provisional liquidator, had reported that SARS owed
RAG a refund.
227.6. On 7 June 2002 Motala’s attorney called for the Master’s
reasons for refusing to appoint Motala.
177 A215226
69
227.7. Accompanied by SARS’ Counsel they subsequently met Vahed
and the two Assistant Masters to demand that Motala be
appointed failing which SARS would obtain an order compelling
his appointment.
227.8. Vahed found no cogent reason to appoint a fifth provisional
liquidator and undertook that his office would give reasons for its
refusal.
227.9. About 14 June 2002, SARS submitted an assessment for R249
832 016,58 against RAG.
227.10. The Assistant Master was instructed to send his reasons to the
Minister which was done on 12 July 2002.
227.11. On the same day the Minister informed Vahed that he was
setting aside his decision and directed him to appoint Motala.
227.12. On 15 July 2002 Motala telephoned Vahed to alert him to
correspondence from the Minister to the Assistant Master
instructing him (Vahed) to appoint Motala. Vahed was opposed
to doing so.
227.13. Vahed learnt from the Assistant Master that the other provisional
liquidators would be applying to interdict the appointment of
Motala.
227.14. Nevertheless, he decided to appoint Motala. He invited him to
70
submit an affidavit of noninterest and bond of security to enable
him to make the appointment.
227.15. At about 15h00 that day Lyn gave Vahed notice telephonically of
his intention to interdict the appointment.
227.16. By the time Vahed left his office that day he had not received the
interdict application.
227.17. At about 19h30 Motala telephoned to inform him that the
Minister wanted to speak to him. The Minister was angry that
Vahed had not appointed Motala despite his instruction and
especially as Motala had received the application for the interdict.
227.18. The Minister insisted that Vahed appoint Motala despite Vahed
informing him that Motala had not submitted a bond of security.
227.19. Vahed agreed to attend to the appointment the next morning,
but the Minister insisted that he effect the appointment
immediately.
227.20. He instructed Vahed to notify him by short message service
(sms) once the appointment was made.
227.21. Vahed was unsuccessful in getting the Assistant Master to open
the office to make the appointment. He used his wife’s office to
issue a temporary appointment.
227.22. The State Attorney who had been contacted by the Minister then
71
called Vahed who informed him that he had made the
appointment.
227.23. He learnt at 22h40 that Galgut J had granted an interim order.
228. Mr Hulley’s suggestion that competition amongst liquidators
motivated the four appointed liquidators to resist the appointment
of Motala in the RAG enquiry, was not born out by the evidence.
The four liquidators succeeded in getting the High Court to set
aside Motala’s appointment and the Supreme Court of Appeal
confirmed that order because it was made on the unlawful
instructions of the Minister.
229. There were negative media reports to which the Minister did not
respond publicly. Financial Mail of 28 February 2003 reported
that the Minister denied knowing Motala 178. If the report was
false or inaccurate, it was not corrected. In the applicant’s
opinion the Minister would have been lying if he denied knowing
Motala from “a bar soap” because firstly, he had referred to
Motala as his friend when he had introduced him to the applicant
in February 2002. Secondly, Motala had claimed to act on the
authority of the Minister when he informed the applicant that he
wanted to attend the meeting for the amalgamation of the two
insolvency practioners’ associations.
230. The applicant had also received many adverse reports from the
public about Motala.
178 A214
72
231. On 13 February 2003 Stegmann J had awarded costs de bonis
propriis against Motala as a mark of that courts disapproval of his
improper conduct as a liquidator. 179
232. The adverse reports continued long after the applicant made
disclosure. Finance Week published a report on 14 April 2004
tracking the developments since the visit by the Minister to the
Master’s office in February 2002 to about 26 July 2002 when
Motala’s appointment by the Kwazulu Natal Bench was set aside
and the extraordinary lengths to which the Minister went to have
Motala reappointed. 180 There was no public reaction by the
Minister.
233. In a judgment of the High Court 181 Leeu J found Motala’s
explanations were calculated to mislead the court in that case
where he was cited as a liquidator.
234. The applicant’s knowledge gleaned second hand from the
reports and fortified by his own encounters with the Minister and
Motala constitute reasonable grounds on which the applicant
formed his belief that the information he disclosed and the
allegations he made were substantially true. 182
235. His suspicion was so strong that it was not dented by his
knowledge that SARS, who was not party to the corruption, also
179 A213
180 A340 342
181 A345 PG Bison Ltd v the Master Case No 655/03 issued on 24/6/04( Bophuthatswane
Provincial Division)
182 Minister of Law and Orde r v Hurley and Another (above)
73
wanted Motala appointed and had been urging the Minister to
support him.
Did the applicant make the disclosure for gain? 183
236. The allegation that the applicant made the disclosure for gain
was not specifically pleaded as it should have been as it was a
statutory defence. Nor was any evidence led or cross
examination on this issue. In fact, this charge was withdrawn at
the disciplinary enquiry.
237. If Mr Hulley’s submission is correct that the applicant’s purpose
in making the disclosures was to secure a settlement, that is a
reward to which the applicant became entitled as a result of the
unlawful conduct of the respondents.
238. The applicant did not make the disclosures for personal gain.
Did the applicant have reason to believe that he would be subjected to an
occupational detriment if he made his disclosure to the employer? 184
239. This question must be answered affirmatively because the
Minister was involved. Politically, he was the most powerful
person in the department. And he was angry with the applicant.
240. He had demonstrated his wrath by removing the applicant as the
head of his unit. The obligation to follow fair procedure did not
183 s 9(1)(b) of the PDA
184 s 9(2)(a) of the PDA
74
concern him. Retaliation against him as the messenger was
more likely than an investigation of his message.
241. Furthermore, as the applicant believed that the information was
substantially true, the retaliation was likely to be vicious.
Did he believe that the impropriety will be concealed or destroyed if he made
disclosure to the employer? 185
242. This question must also be answered affirmatively as the
DirectorGeneral was reluctant to investigate the allegations.
243. The Vahed and Kinghorn reports were available to the Director
General. They were supplemented by the applicant’s reports of
his interactions with the Minister and Motala. The Director
General was aware of the allegations against the Minister. He
knew that the Minister became “agitated” whenever Motala was
discussed. It was not suggested to the applicant in cross
examination that the DirectorGeneral was not aware of the
allegations or that he had acted upon them. He did nothing to
investigate the allegations. He discouraged the applicant from
provoking the Minister by asking him for reasons for removing
him from his position as ManagingDirector of the unit. Taken
together, the applicant reasonably inferred that the Director
General would not act against the Minister to stop or prevent the
improprieties. The probabilities were that the allegations would
not have seen the light of day if the applicant did not make the
disclosure.
185 S 9(2)(b) of the PDA
75
Did he make disclosures previously to his employer or persons or bodies referred
to in s 8 of the PDA? 186
244. As the DirectorGeneral was disinclined to act on the information
contained in the Vahed and Kinghorn reports and from the
applicant and Mokgalabone, it served no purpose to request that
he investigate the complaints.
245. It is common cause that the applicant made disclosures of
substantially the same information to the Public Protector and the
AuditorGeneral.
Did a reasonable period lapse without any action being taken to investigate the
complaint?187
246. Whether the period was reasonable must be assessed not only
in terms of the passage of time. The nature of the complaint, its
seriousness and the quantity and quality of the investigation it
calls for must also be considered. Statutory and other procedures
might apply to the investigators. Other statutes, practices and
procedures could serve as benchmarks. Willingness and
capacity to undertake the investigation could be decisive factors.
247. Seven months had passed from the end of February to October
2003. The applicant was guided by the Promotion of
Administrative Justice Act No 3 of 2000 where an administrator
186 S 9(2)(c) of the PDA
187 S 9(2)(c) of the PDA
76
has 90 days in which to respond to a request for reasons for
administrative action. 188 The applicant deduced that seven
months was unreasonable.
248. All the indications were that none of the persons or bodies was
willing to investigate the complaints. There was no evidence that
any investigation had been undertaken by any of them by the
time of the trial three years later. Seven months was in the
circumstances a reasonable period to allow these persons and
bodies to investigate the matter.
Was the impropriety exceptionally serious? 189
249. It was common cause that the allegations were exceptionally
serious. Allegations of corruption against a Minister is an
exceptionally serious matter, irrespective of the amounts
involved.
250. In the circumstances the applicant m et al l the conditions in s
9(2).
Was it reasonable for the applicant to make the disclosure to the media? 190
251. It was reasonable for the applicant to make the disclosure
because it was made to the media. 191 The media is one of the
pillars that promote and uphold democracy. Corruption
188 s 5(2)
189 S 9(2)(d) of the PDA
190 S 9(1)ii read with (3) of the PDA
191 s 9(3)(a)
77
undermines democracy. The media’s exposition of corruption is
good for democracy. Whistleblowers depend on the media and
other organs of civil society to help level the playing fields as they
are often lonely voices against powerful interests. As an
employee the isolation and vulnerability are even more acute. 192
So symbiotic is the relationship between whistleblowers and the
media that Brewers Dictionary defines whistleblowing to mean
“exposing to the press a wrongdoing or a coverup in a business
or government office. 193
252. Disclosures to the media of confidential material have been held
to be justified in several cases in the United Kingdom. 194 A
disclosure about price fixing was lawful because the public as
being misled. 195 Disclosures to the press about faulty roadside
breathalysers were justified so that people could challenge
criminal charges against them. 196 Publishing allegations of
corruption in the police force was also allowed. 197
253. Disclosures to the media will not be justified if it is not in the
public interest. That might be the case if confidentiality has to be
maintained so that the complaints can be better investigated or
the employer can be protected until the suspicions are confirmed.
Such disclosures if made to the police, a professional body or
prescribed regulator would better serve the public interest. 198
192 Calland et al 19
193 Calland et al 2
194 Bowers 3738
195 Initial Services v Putterill (1968) 1 Q.B. 396
196 Lion Laboratories v Evans (1985) 1 Q.B. 526
197 Cork v Mc Vicar, The Times October 31 1985; Bowers 37
198 Bower (above) 38
78
Disclosures to the media will also not be justified if the complaint
has already been addressed internally or by a prescribed
regulator.199
254. The impropriety was exceptionally serious. 200
255. There was every indication that the impropriety was continuing
once the panel was instructed to report to Lategan and it became
clear that no action would be taken against the Minister following
the Vahed and Kinghorn reports and the sidelining of the
applicant.201
256. Disclosure of wrongdoing cannot be a breach of confidence.
Thus a defence that the employee breached confidentiality has to
be approached so cautiously that it does not strip the PDA of its
content.202 Hence the enquiry is confined to breach of
confidence of third parties, which must also be assessed against
the countervailing forces of openness and accountability.
257. There was no suggestion that the applicant breached a duty of
confidentiality to a third party. 203 The charges for which he was
disciplined was not breach of confidentially.
258. Neither the DirectorGeneral, the Public Protector nor Auditor
General said that they would act on his complaint. 204 The Public
199Bower (above) 38
200 S 9(3)(b) of the PDA
201 s 9(3)(c) of the PDA
202 Bower (above) 38
203 s 9(3)(d)
204 s 9(3)(e)
79
Protector seemed to be of the opinion that the disclosure was not
a complaint.
259. No procedure was prescribed or authorized for making
disclosures to the employer in the circumstances of this case. 205
Although the Public Service Code of Conduct required the
applicant to use appropriate channels to air his grievances, there
were none available to him internally. The Minister had not
issued regulations in terms of s 10(4) of the PDA to guide
whistleblowers.
260. The normal grievance procedure was inadequate to ventilate an
issue that fell under the PDA because it did not protect whistle
blowers. Furthermore, the grievance procedure did not apply in
the applicant’s situation where he was the second most senior
official in the department and his complaint was against the most
senior political and administrative heads of the department, the
very people he reported to.
261. The PSC as an organ of state having regulatory functions over
the public service 206 had recommended that “wider” disclosures
could be made to the media. 207
262. The disclosures were in the public interest as it involved the
public service and public officials. 208
205 s 9(3)(f) read with s 6
206 The Preamble to the Public Service Commission Act No 46 of 1997
207 A 355
208 s 9(3)(g)
80
263. The applicant’s disclosure to the media was in all the
circumstances reasonable.
Was the disclosure made in good faith? 209
264. Compliance or otherwise with all the other requirements of s 9 of
the PDA feed cumulatively into the assessment of the applicant’s
motive for the disclosure and whether he acted in good faith.
265. The reason the applicant made the disclosures was simply that
corruption had to be stopped. It distressed him that the PDA was
being “killed” by the very department that gave birth to it. The
court has no cause to doubt that. He and Mokgalabone
presented as honest, dedicated and disciplined public servants.
They were deeply and legitimately aggrieved by the castigation
they endured from the Minister.
266. The applicant had no axe to grind with either of the respondents.
The DirectorGeneral valued his expertise and contribution to the
department. Tensions arose only after the applicant resisted the
Minister’s attempts to promote Motala as a liquidator.
267. Mokgalabone and the applicant had no reason to embarrass the
respondents. If the respondents were embarrassed there is no
evidence of that before this court. It was the Minister’s own
unlawful conduct which spurred the applicant to make the
disclosures.
209 S 9(1) of the PDA
81
268. The applicant had no choice but to make the disclosures. He had
a statutory obligation to disclose criminal and any other irregular
conduct210 and to “report to the appropriate authorities, fraud,
corruption, nepotism, maladministration and any other act which
constitutes an offence, or which is prejudicial to the public
interest”211
269. As it was his assigned task to combat corruption, he would not
have been able do his job effectively by turning a blind eye to
what he reasonably believed were improprieties.
270. He turned to the media because that is where the guidelines
issued by Professor Sangweni, the chairman of the PSC,
directed him. The PSC promoted the PDA and had work
shopped it with the department to produce a manual. 212
271. The way he made the disclosures tells on his motives. He could
have leaked information anonymously. Instead, he took
responsibility for the disclosures he made to the various persons
and bodies. He proceeded cautiously from ensuring that the
DirectorGeneral was aware of the allegations, to disclosing to
prescribed state institutions responsible for such investigations
and to the Minister in the Cabinet and Presidency before making
his disclosures public.
272. Although the applicant had a strong suspicion that the Minister
was involved in corruption and nepotism, he did not say that he
210 Preamble to the PDA
211 C.4.10 of the Public Service Regulations, 2001
212 A352 – A354
82
knew as a fact that the Minister was corrupt. That, he
understood, fell within domain of the investigators to report on.
273. The applicant readily acknowledged that there were
discrepancies in the Vahed and the Kinghorn reports and in his
media releases. The discrepancies were of a technical nature,
such as the citation of the incorrect statute and possibly a
miscalculation of the value of estates in which Motala was
appointed as liquidator. The central thrust of the reports was not
vitiated by the discrepancies. Nor were the reports criticized by
the respondents.
274. The applicant conceded that he did not draw the attention of the
recipients of the reports and the media to them. He was either
not aware of them at the time or considered them too
insignificant to make an issue. Furthermore, in his opinion he had
demonstrated a reasonable suspicion warranting further
investigation. The journalists were to conduct that investigation.
He was not qualified to conduct the sort of investigation that
required the skills of a financial officer such as Mckensie. Nor
was he as well placed as the media to get to the truth.
275. By not seeing the annexures to the Vahed and Kinghorn reports
before they were disclosed did not mean that his belief was not in
good faith. Nothing from the annexures was put to him to suggest
otherwise. His stance was that it was up to the Public Protector
and AuditorGeneral to obtain any further information they
needed for their investigations.
83
276. A public expose was not the applicant’s preferred option. He
opted to make a disclosure to Minister Pahad even though that
was not a precondition for making generally protected
disclosures. He welcomed Minister Pahad’s advice to resolve the
matter internally. The respondents failed to meet him after
agreeing to do so.
277. By making the disclosures the applicant had a lot to lose as a
senior public servant with long service. It was not a risk that he
took without careful consideration as can be seen from the
planned process he pursued in making the disclosures.
278. The applicant made the disclosures in good faith.
Was the disclosure protected?
279. The court finds that the applicant’s disclosure to the media was a
general protected disclosure in terms of s 9 of the PDA.
Occupational detriment
280. The nature of the treatment of the applicant consequent upon the
disclosure to the media is not disputed. It was common cause
that he was suspended in October 2003 and later charged with
misconduct.213 He was forced to negotiate himself out of his job
because the respondents found that the relationship had broken
down and that affected his employment, profession and office
213 Definition of “occupational detriment” s 1(a) and (b) PDA
84
adversely.214
281. Nor was it disputed that the treatment was a consequence of the
disclosures.215
282. The respondents’ defence was that it was not an occupational
detriment or an unfair labour practice because the disclosures
were not protected. As the court has found that the disclosures
were protected, the defence must fail.
283. The court finds that applicant was subjected to occupational
detriment. Although he was paid during his suspension and the
settlement assures him of his remuneration until he reaches the
retirement age of 65, he has been denied the dignity of
employment.
Remedy
284. The purpose of compensation is to redress for patrimonial and
nonpatrimonial losses. In assessing compensation that is
reasonable, fair, just and equitable particular criteria come to the
fore in PDA claims.
285. To reach the stage where a remedy is to be granted means that
the applicant has successfully overcome the hurdles of proving
that he made a disclosure, that it was protected and that he was
subjected to occupational detriment. Compliance with each
214 Definition of “occupational detriment” s 1(h) of PDA
215 Knight v Harrow LBC 2002 WL 31476435 (EAT) [2003] I.R.L.R. 140; 2002 WL 31476435
85
hurdle as defined automatically justifies a remedy. All the
developments up to and after the occupational detriment
contribute cumulatively to the assessment of compensation.
While it is not necessary to rediscuss every aspect, some
general principles for assess compensation in PDA cases need
to be emphasized.
286. An employee who is subjected to an occupational detriment is in
a position similar to one who is victimized or discriminated. 216
Compensation awards for discrimination are guidelines for claims
by whistleblowers. 217
287. Detriment suffered by whistleblowers generally and in the
particular circumstances of this case is akin to a very serious
form of discrimination which merits a very high award. 218
288. An employer who subjects an employee to occupational
detriment or fails to protect an employee who makes a protected
disclosure cannot be allowed to limit compensation on the basis
of its own conduct. 219 Thus if an employer fails to investigate the
allegations but prefers to retaliate that should count against it.
216 Virgo Fidelis Senior School v Boyle 2004 WL 62152 (EAT); [2004] I.C.R. 1210 ; [2004]
I.R.L.R. 268; Times, February 26, 2004 2004 WL 62152 ; Woodward v Abbey National Plc (No.1)
[2006] EWCA Civ 822; [2006] I.R.L.R. 677; (2006); 103(27) L.S.G. 31; (2006) 150 S.J.L.B. 857;
Times, July 11, 2006; Independent, June 27, 2006; 2006 WL 1666918 at para 59; Boulding
(above) para 24
217 Vento v Chief Constable of West Yorkshire [2002] EWCA Civ 1871; [2003] I.C.R. 318 ; [2003]
I.R.L.R. 102; (2003) 100(10) L.S.G. 28; (2003) 147 S.J.L.B. 181 ; Times, December 27, 2002;
2002 WL 31676435 ; Miklaszewicz v Stolt Offshore Ltd (EAT) [2001] I.R.L.R. 656; Independent,
July 9, 2001 (C.S); 2001 WL 415617
July 9, 2001 (C.S); 2001 WL 415617
218 Virgo Fidelis Senior School v Boyle (EAT) [2004] I.C.R. 1210 ; [2004] I.R.L.R. 268; Times,
February 26, 2004
219 Mama East African Women’s Group, Trustees of v Dobson (above)
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289. Whistleblowing involves risks. The applicant took risks and must
be acknowledged for that. Silence was not a “safer” option for
him.220 The seriousness of the improprieties and the status of
the suspects increased the risks. It meant exposing a close
colleague and breaching his trust. There was also the risk that
the disclosures would not be protected. The disclosure might
have been found to have been made in the reasonable belief that
it was substantively true but that the applicant lacked good faith.
In that case he could have found himself facing defamation
claims.
290. How the disclosure was made also impacts on the remedy. He
pursued a carefully constructed, cautious, staged process,
proceeding from private to public disclosures.
291. The purpose of the disclosures was intended for the greater good
of the department and society and not for personal gain. His
disclosure was socially responsible. Employees who prefer
silence over whistleblowing leave consumers, shareholders,
communities and the employer itself at risk. 221
292. The more serious the nature of the occupational detriment to
which the employee is subjected the greater the compensation.
Hence dismissal attracts compensation of as much as twenty
four month’s remuneration. Being suspended and charged for
misconduct are a step away from being dismissed.
220 Calland et al at 34
221 Calland et al at 4
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293. The longer the dispute endures, the greater the stress on the
employee and the higher the compensation should be. This
controversy has endured for almost four years. Furthermore, the
applicant was driven to make the disclosure to the media.
Disclosures to the media are more stressful as the risks are
greater.
294. How the employer conducts itself in resolving the controversy is
material. In this case the respondents agreed to be bound by the
decision of the chairperson of the disciplinary committee as
regards the applicant’s alleged misconduct, but they refused to
be bound by the finding that the disclosures were protected for
purposes of this claim for compensation. It has been correctly
held in limine that this court is not bound by the decision of the
chairperson of the disciplinary enquiry. 222 But the respondents
remained bound by the chairperson’s decision.
295. Assuming that the in limine ruling gave the respondents a choice
of retrying the issues or abiding by their obligation to be bound by
the decision of the chairperson, that they opted for the former
must count against them as they prolonged the applicant’s
anxiety and escalated costs. If they had adopted for the latter
approach more issues could have been narrowed down.
296. Once the respondents were bound by the finding that the
disclosures were protected it followed automatically that the
222 Judgment of Musi J issued on 16 February 2006 under this case No JR898/04 reported as
Tshishonga v Minister of Justice and Constitutional Development and Another (2006) 6 BLLR
601 (LC)
88
suspension of the applicant and the disciplinary action against
him fell within the definition of “occupational detriment”. The only
focus of this trial therefore should have been the amount of the
compensation. What the disclosures were, why and how they
were made were questions that had been fully canvassed at the
disciplinary hearing. Furthermore, the parties were agreed that
the record of the disciplinary hearing was a true reflection of what
transpired in those proceedings. Having called the Director
General to testify at the disciplinary hearing and lost, they could
hardly have expected their case to get better when neither of the
respondents testified at the trial. In these circumstances the
question of compensation could have been simply argued on the
record of the disciplinary enquiry and the common cause facts,
with minimal evidence being led on those issues that still
remained in dispute. The protraction of the matter unduly, is a
continuation of the respondents’ retaliation against the applicant.
This opinion is fortified, for instance, by the respondents
persisting in alleging that the applicant was motivated by gain
when it had withdrawn that charge at the disciplinary enquiry.
297. Whether the respondents account for their conduct as they
should in a constitutional democracy is a consideration. They
failed to do so by testifying in this trial and, in the case of the
Minister, also at the disciplinary enquiry. Furthermore, the
respondents’ defence is funded from public coffers. They, and
the Minister in particular, owe the public an explanation. It is not
as if they dismissed the allegations as illconsidered,
unsubstantiated rantings of a disgruntled employee. They took
the allegations against them seriously and were relentless in their
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pursuit of the applicant. Their failure to offer any explanation in
this case aggravates the claim against them.
298. After a struggle protracted over four years the applicant’s
objective in making the disclosures has not been met. The
respondents have still not accounted for their conduct. Nor has
the department, which is now under new management, called for
an investigation into the allegations or a halt to the retaliation. In
that sense, this application is a pyrrhic victory for the applicant.
299. The applicant’s claim for compensation for unfair labour practice
in the amount of twelve months remuneration is a statutory claim
based on the respondents’ breach of section of s 3 of the PDA.
Remedies are prescribed by s 4 of the PDA read with s 186(2)
(d), 191(5)(b) and (13) of the LRA. It is not a common law claim
in delict for “insults and illtreatment”, an iniuria “not amounting to
defamation” as submitted by Mr Hulley. 223 That the applicant
was insulted, illtreated and his dignity impaired are elements of
the content of the occupational detriment he endured which the
remedy must redress.
300. The amount of compensation awarded should be just and
equitable224 but limited to twelve months remuneration.
301. The applicant’s claim is for twelve months pay. But he also
claims the legal costs incurred in defending himself at the
223 Para 50 52 of Respondent’s Heads.
224 S 194(4) of the LRA; Melia v Magna Kansei Ltd (CA (Civ Div)) Court of Appeal (Civil
Division) [2005] EWCA Civ 1547; [2006] I.C.R. 410 ; [2006] I.R.L.R. 117; 2005 WL
2893795
90
disciplinary enquiry. Legal representation is a necessity in cases
under the PDA not least because employees need to test their
beliefs and the information they intend to disclose against the
objective, independent and trained mind of a lawyer. Disciplinary
action for making a protected disclosure is detrimental action. It
is distinguishable from disciplinary action for misconduct. In the
former, the employer has no right or prerogative to discipline the
employee who has not committed any misconduct. Legal costs in
opposing detrimental action is part and parcel of the damages
imposed on the employee. It is a patrimonial loss that must be
included in the compensation awarded without exceeding twelve
month’s remuneration.
302. Although compensation would usually be mitigated by the
department paying the applicant’s remuneration and benefits up
to retirement, in this instance it does not relieve the respondents
of paying the maximum allowed.
303. Taking into account all the criteria discussed above the applicant
should be paid the maximum of twelve month’s remuneration
calculated at the rate payable to Deputy DirectorGenerals as at
the date of this judgment.
304. Costs were reserved on a previous occasion when the matter
was enrolled for trial. The applicant submitted that the
respondents should pay the costs as the matter had to be
adjourned at their instance as they gave notice at a late stage
that they wished to compile their own bundle of documents.
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305. The respondents contended that the applicant should pay the
costs as it wanted to amend its pleadings.
306. The amendment was merely an elaboration of the applicant’s
case to include facts that were substantially common cause and
which would not have warranted an adjournment.
307. On the other hand, although the respondents produced a bundle
of 203 pages incorporating some documents from the applicant’s
bundle, Mr Hulley referred to only one document of fourteen
pages in connection with the procedures for appointing
liquidators. The document took that issue no further.
308. In the circumstances the adjournment was illconceived and
probably another attempt at protracting the applicant’s stress in
the hope that he would back down.
Order
309. The respondents are directed to pay the applicant twelve month’s
remuneration at the current rate applicable to DirectorGenerals.
310. The respondents are to pay the applicant’s costs including the
costs of Senior Counsel, such costs to also include those
reserved on 31 August 2006.
Pillay D, J
APPEARANCES
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Date of hearing: 02 November 2006
Date of judgment: 26 December 2006
For the applicant: Adv H Van Woudstra SC
(Instructed by State Attorney)
For the respondent: Adv G I Hulley
(Instructed by Henning Viljoen Attorneys)
93