Ndlangana v Mine Health and Safety Council and Another (J770/22) [2022] ZALCJHB 193 (27 July 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J770/22

In the matter between:

ZIME NDLANGANA

Applicant

and

MINE HEALTH AND SAFETY COUNCIL

First Respondent

MATEME LEKOKO N.O

Second Respondent

Heard: 13 July 2022

Delivered: 27 July 2022

(This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 27 July 2022.)

Summary: Section 188A(11) of the LRA machinery is not designed or intended to determine whether the facts constitute a protected disclosure as contemplated by the PDA.

JUDGMENT

NKUTHA-NKONTWANA, J

[1] Whistleblowing is essential in the fight against corruption both in the public and private sectors. The protection of whistleblowers from retaliation for reporting in good faith suspected acts of corruption and other wrongdoing is therefore integral to efforts to combat corruption, promote public sector integrity and accountability, and support a clean business environment.[1] That is the purpose of the Protected Disclosures Act[2] (PDA). Yet, as aptly warned by the Labour Appeal Court in National Institute for the Humanities & Social Sciences v Lephoto and another,[3] that:

‘There is, however, a danger that the Act will be abused in order to justify wrongful conduct or malperformance by a disgruntled employee, who seeks to fend off consequential disciplinary action taken against him or her by way of recourse to the Act.’

[2] That is not the case in the present instance. The applicant approached this Court by way of urgency seeking, inter alia, an order: to set aside any disciplinary steps already taken by the first and second respondents; to terminate the disciplinary

proceedings and request the Commission for Conciliation, Mediation and Arbitration (CCMA) to appoint an arbitrator in terms of section 188A(11) of the Labour Relations Act[4] (LRA); and to set aside the decision of the second respondent, as the chairperson of the disciplinary enquiry, dismissing her request to have her disciplinary enquiry conducted in terms of section 188A(11)).

[3] There is no controversy when it comes to the pertinent factual matrix. The applicant is employed by the first respondent as a Supply Chain Manager. She has been brought before the disciplinary enquiry

that is chaired by the second respondent on various allegations of misconduct. It is her contention that the disciplinary enquiry

constitutes an occupational detriment in terms of the PDA and, as result, should proceed by way of a pre-dismissal arbitration in terms of Section 188A(11).

[4] The applicant asserts that she duly made various protected disclosures to the office of the Public Protector in relation to maladministration and abuse of power by the first respondent. The first disclosure was submitted on 2 September 2019; the second disclosure was submitted on 27 November 2019, and the last disclosure was made on 23 May 2020 wherein she gave the details of alleged tender malfeasance in that the first respondent paid R6.3 million to Culart Productions, as service provider when the tender amount was 4.8 million.

[5] It is common cause that in 2017, the first respondent resolved to build two memorial plagues, an Amphitheatre and a sculpture, in the Metsimaholo Local Municipality and City of Johannesburg Metropolitan

Municipality, respectively. In 2019, the tender was awarded and execution commenced.

[6] On 24 November 2020, the first respondent conducted an investigation into allegations of irregularities in the awarding and the management of the tender for the construction of the memorial plagues. That was consequent to a query that emerged from the questions by the National Parliament that were directed to the first respondent and the Minister of Mineral Resources and Energy. The investigation was conducted by Macbeth Incorporated (Attorneys), who then presented an investigation report wherein they recommended that the applicant as well as other three colleagues be charged with of various acts misconduct.

[7] On 23 September 2021, the applicant was placed on precautionary suspension and subsequently charged per the investigation report. On 29 March 2022, she was served with the notice to attend the disciplinary enquiry. On 13 May 2022, the applicant, through her attorneys of record, sent an email to the first respondent intimating that the disciplinary action against her constitutes an occupational detriment and requested that it should rather proceed in terms of

Section 188A.

[8] The same request was also made with the second respondent during the sitting of the disciplinary enquiry on 20 May 2022. On 15 June 2022, the second respondent issued a ruling wherein he dismissed the applicant’s request and directed that the disciplinary enquiry would proceed on 22 June 2022.

[9] The applicant subsequently referred a request for an enquiry by an arbitrator to the CCMA as well as a dispute relating to an unfair labour practice in terms of Section 186(2)(d) of the LRA. On 22 June 2022, the disciplinary enquiry recommenced as directed by the second respondent. The applicant raised a point in limine to the effect that she has requested the CCMA to conduct a pre-dismissal arbitration hearing in terms of section 188A(11) and, as a result, the disciplinary enquiry should automatically terminate. The second respondent dismissed the applicant’s point in limine.

Legal principles and application

[10] This Court was confronted with similar circumstances recently in Jacobs and Others v National Commissioner of South African Police Service and Another (Jacobs),[5] where it pertinently stated that:

‘[20] To understand the extent of application of subsection (11) of section 188A, subsection (12) thereof is instructive. It is convenient to set out both subsection (11) and (12) of section 188A:

“(11) Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act No. 26 of 2000), that employee or the employer may require that an inquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee.

(12) The holding of an inquiry by an arbitrator in terms of this section and the suspension of an employee on full pay pending the outcome of such an inquiry do not constitute an occupational detriment as contemplated in the Protected Disclosures Act, 2000 (Act No. 26 of 2000)”.

[21] Obviously, section 188A(11) is not necessarily a scheme to challenge the alleged occupational detriment in terms of the PDA, per se. However, it is a mechanism aimed at avoiding collateral litigation where an employee claims that, the holding of a disciplinary enquiry into allegations of misconduct or suspension pending such an enquiry, offends the provisions of the PDA. Whilst the PDA protects employees who make a protected disclosure, “section 188A(11) aims to strike a balance between taking no action because the person allegedly guilty of misconduct is a whistle-blower in terms of PDA or allowing a disciplinary process, with the safeguard being that the disciplinary process has to be done in a manner that is entirely independent of the employer.”[6] In Nxele, this Court pertinently held that:[7]

“[31] In my view, the only proper construction to be accorded to section 188A(11) is that, where an employee or employer requires a pre-dismissal arbitration in terms of section 188A, that request it is imperious. This construction gives effect to the purpose of the legislature which is to provide a degree of protection to employees who make protected disclosures and to avoid parallel litigation, typified in the present case.

[32] Basically, following a section 188A(11) request by the employee, the employer is enjoined to institute a pre-dismissal arbitration in terms section 188A. The internal disciplinary enquiry that would have commenced and is pending must terminate…”’

[11] The first respondent’s counsel submitted that the applicant failed to make out a case for a pre-dismissal arbitration in terms of section 188A(11) simply because her disclosures are not protected in terms of PDA. To buttress this contention, reliance is placed on the unreported decision of this Court, per Tlhotlhalemaje J, in Luthuli v South African National Blood Service and Another[8] (Luthuli). In my view, that decision is patently distinguishable as the applicant in that case sought to vindicate a right not to be subjected to an occupational detriment in terms of PDA. As stated in Jacobs, section 188A(11) machinery was introduced in order to avert collateral litigation in cases where a fallacious protected disclosure is alleged as typified in Luthuli.[9]

[12] In Tsibani v Estate Agency Affairs Board and Others (Tsibani) ,[10] this Court, per Prinsloo J, succinctly expounded the framework within which section 188A(11) should be construed and pertinently stated that:

‘[63] Section 188A(11) is to be understood in the specific context within which it was enacted and is to be applied. Section 188A provides for the appointment of an arbitrator to conduct an inquiry into allegations about the conduct or capacity of an employee. Such a process is on request by an employer, with the consent of the employee, or in accordance with a collective agreement and is to be made in the prescribed form and a prescribed fee is payable. Section 188A(11) provides that if an employee alleges in good faith that the holding of an inquiry contravenes the PDA, that employee or the employer, may require that an inquiry be conducted in terms of section 188A, into the allegations by the employer into the conduct or capacity of the employee. The holding of such an inquiry does not constitute an occupational detriment, as contemplated in the PDA.

[64] Section 188A(11) entitles an employee, who is about to be subjected to an internal disciplinary process and who alleges in good faith that the intended disciplinary hearing contravenes the PDA, to instead request an inquiry be conducted in terms of section 188A. I see no reason why, if an employer , under circumstances where the employee complies with the requirements of section 188A(11), refuses to have the inquiry into the conduct or capacity of the employee conducted in terms of section 188A, the employee would not be entitled to approach this Court for an order interdicting the impending internal disciplinary hearing and an order directing that the inquiry pertaining to the employee’s conduct or capacity be conducted in terms of section 188A of the LRA.’ (Emphasis added)

[13] In light on the above authorities, the construction the first respondent accords to section 188A(11) is patently untenable. As aptly stated in Tsibani, this provision “is not designed or intended to determine whether the facts constitute a protected disclosure as contemplated by the PDA or not, and if not, for an internal disciplinary hearing to proceed”[11]. Therefore, to the extent that the applicant, in good faith, holds a view that the instituting of the disciplinary enquiry against her offends the PDA, section 188A(11) is correctly invoked.

Conclusion

[14] In all circumstances, I am thus satisfied that the applicant has made out a proper case for the grant of a final interdict by laying out sufficient facts to demonstrate a clear right in terms of section 188A(11); the injury reasonably apprehended; and that they have no adequate alternative remedy.

Urgency

[15] Furthermore, I am satisfied that the matter is urgent and have dealt with it as such. The applicant prudently raised her request to a section 188A(11) process with the respondents as a first port of call, in an attempt to obviate these proceedings, but to no avail.[12]

Costs

[16] It is well accepted that costs do not follow the result in this Court. However, in the present instance the applicant, an individual litigant, made several attempts, unsuccessfully so, to avoid this litigation.

[17] I, accordingly, make the following order:

Order

1. This application is heard as one of urgency and the applicant’s failure to comply with the normal time periods is condoned.

2. The disciplinary proceedings against the application under the chairpersonship of the second respondent are interdicted.

3. The second respondent’s preliminary rulings dated 15 June 2022 and 23 June 2022 are set aside.

4. The first respondent shall take all necessary steps to ensure that the disciplinary proceedings against the applicant are conducted as a pre-dismissal arbitration in terms of section 188A of the LRA.

5. The first respondent shall pay the applicant’s costs.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa Appearances:

For the Applicant:

Instructed by:

For the First Respondent:

[1] See: Tshishonga v Minister of Justice and Constitutional Development and Another [2007] 4 BLLR 327 (LC) at paras 166 – 177.

[2] Act 26 of 2000.

[3] (2020) 41 ILJ 374 (LAC) at para 2.

[4] Act 66 of 1995.

[5] Unreported judgment under case number: J194/21 delivered on 17 March 2021 at paras 20-21.

[6] See: Nxele v National Commissioner: Department of Correctional Services and others (2018) 39 ILJ 1799 (LC) at para 29.

[7] Ibid at paras 31 and 32.

[8] Unreported judgement under case no: J1914/19 delivered on 30 October 2019.

[9] See: Letsoalo and another v Minister of Police and others (2016) 37 ILJ 1916 (LC) at para 26.

[10] Unreported judgment under case no: J642/2021 delivered on 24 June 2021.

[11] Ibid at para 72.

[12] See: Jacobs supra fn 5 at paras 17-18.