Tshishonga v Minister of Justice and Constitutional Development and Another (JS898/04) [2006] ZALC 104; [2007] 4 BLLR 327 (LC); 2007 (4) SA 135 (LC); (2007) 28 ILJ 195 (LC) (26 December 2006)

Tshishonga v Minister of Justice and Constitutional Development and Another (JS898/04) [2006] ZALC 104; [2007] 4 BLLR 327 (LC); 2007 (4) SA 135 (LC); (2007) 28 ILJ 195 (LC) (26 December 2006)

The court found that the applicant’s disclosures to the media regarding corruption and nepotism in the Department of Justice were protected under section 9 of the Protected Disclosures Act. The applicant acted in good faith, with reasonable belief in the substantial truth of the allegations, and not for personal gain. He had exhausted internal remedies by reporting to the Director-General, Public Protector, and Auditor-General, none of whom took action. The subsequent suspension and disciplinary proceedings constituted occupational detriment as defined in the PDA. The respondents failed to testify or provide any explanation for their conduct, justifying an adverse inference. The applicant...

Citation
[2006] ZALC 104
Parties
Applicant: M M Tshishonga; Respondent: Minister of Justice and Constitutional Development; Respondent: Director-General of the Department of Justice and Constitutional Development
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
26 December 2006
Case Number
JS898/04
Procedural Posture
Labour Claim / Trial and Final Judgment
Outcome
Applicant’s claim for compensation for unfair labour practice is upheld. The disclosures to the media are protected under the PDA. The applicant suffered occupational detriment as a result.
Judges
Pillay D
Legal Topics
Protected Disclosure Act, Occupational Detriment, Whistleblower Protection, Unfair Labour Practice, Disciplinary Procedure, Remedies for Victimisation
Labour Law Administrative Law Protected Disclosure Act Occupational Detriment Whistleblower Protection Unfair Labour Practice Disciplinary Procedure Remedies for Victimisation

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Parties

M M Tshishonga

Applicant

Minister of Justice and Constitutional Development

Respondent

Director-General of the Department of Justice and Constitutional Development

Respondent

Procedural Posture

Labour Claim / Trial and Final Judgment

Legal Issues

  1. 1 Are disclosures to the media about workplace impropriety protected under the Protected Disclosures Act?
  2. 2 What constitutes a protected disclosure under the PDA?
  3. 3 Did the applicant suffer occupational detriment as a result of making protected disclosures?

Ratio Decidendi

The court found that the applicant’s disclosures to the media regarding corruption and nepotism in the Department of Justice were protected under section 9 of the Protected Disclosures Act. The applicant acted in good faith, with reasonable belief in the substantial truth of the allegations, and not for personal gain. He had exhausted internal remedies by reporting to the Director-General, Public Protector, and Auditor-General, none of whom took action. The subsequent suspension and disciplinary proceedings constituted occupational detriment as defined in the PDA. The respondents failed to testify or provide any explanation for their conduct, justifying an adverse inference. The applicant...

Court Disposition

Applicant’s claim for compensation for unfair labour practice is upheld. The disclosures to the media are protected under the PDA. The applicant suffered occupational detriment as a result.

Orders

  • The respondents are directed to pay the applicant twelve months’ remuneration at the current rate applicable to Deputy Director-Generals.
  • The respondents are to pay the applicant’s costs, including the costs of Senior Counsel and those reserved on 31 August 2006.