Imagine you are a professional electrical engineer holding the position of managing engineer: Power System Control (PSC) with the municipality of Tshwane.   Your primary responsibility is to ensure that the systems are correctly configured and safety measures applied to the high, medium and low voltage networks to ensure continuity, quality and safety of electrical supply to all consumers within the metropolitan area.  You express concerns about the employment of certain operators in a letter copied to the Municipal Manager, the Department of Labour and your Engineering Council.

You are then suspended and disciplined for copying that letter to the outside bodies without authorisation.   Fortunately your Engineering Council supports you and the Pretoria High Court (Prinsloo J) interdicts your employer from imposing any disciplinary sanction because your disclosure enjoys statutory protection.   Your employer then appeals to the Supreme Court of Appeal (SCA) against that order.

On 27 November 2009 in City of Tshwane Metropolitan Municipality v Engineering Council of SA & Weyers (532/08) [2009] ZASCA 151 Wallis AJA, with the concurrence of the other 4 judges of appeal, disallowed the appeal with costs.

In sketching the background to the dispute Wallis AJA deals with a number of emails that passed between official of the employer and Mr Weyers and states:

“[19] The effect of these e-mails was considerable.   No white males were to be considered for appointment notwithstanding the agreement on 10 May with Dr Lukhwareni, who was the head of the electricity department and Mr Mahlangu’s superior.   Accordingly the four candidates who had been identified as suitable to commence work immediately would not be appointed.   Mr Weyers would be removed from any process of assessing the competence of the candidates and the previous agreement in regard to the filling of these posts was set aside.   Finally the blame for the absence of suitable black candidates was simply laid at the door of their managers without more.   That left Mr Weyers in the position that he recorded in his e-mail to Mr David Garegae on 5 August namely that:

‘These positions I would like to fill are critical to the Service Delivery of Tshwane Electricity, and while they are not filled with competent personnel we are sacrificing Batho Pele’.”

Mr Weyers sought guidance from his professional body, the Engineering Council, and was told that he was obliged to report to the Council any attempt to force him to make such appointments.

In para [30] it is made clear that the “only issue in the appeal is whether the court below was correct to hold that the distribution of the letter to the Engineering Council and the Department of Labour was protected under one or other of the statutes relied upon by Mr Weyers”.

In the following para Wallis AJA states:

“[31] It is perhaps as well at the outset to make it clear what this case is not about.   It is not about the disciplinary proceedings and whether the sending of the letters in fact constituted misconduct or whether Mr Weyers received a fair hearing.   Nor is the case about the application of the Employment Equity Act in the Tshwane Metropolitan Municipality.   Nor does it require any view to be expressed on the wisdom of the approach adopted by either of the main protagonists, Mr Weyers and Mr Mahlangu, to the appointment of system operators and other staff in the PSC centre.   Quite plainly they approached that issue from different perspectives and senses of priority.   Whilst one might hope that these difficult issues in our society would always be resolved by mature discussion and mutual understanding, that did not occur in this instance and it is not for this court to determine the rights and wrongs of the situation that arose.   Our only task is to determine whether the sending of the letter to the Engineering Council and the Department of Labour was protected by statute.   It is to that question that I now turn”.

“[32] Mr Weyers relies on three statutory provisions to justify what he did.   They are section 30 of the Engineering Profession Act, 46 of 2000; section 26(1) of the Occupational Health and Safety Act 85 of 1993 (OHSA) and section 3 of the Protected Disclosures Act 26 of 2000 (‘the PDA’).   All the oral argument revolved around this latter provision and in view of the conclusion I have reached it is necessary for me to deal only with that aspect”.

Before addressing that issue Wallis AJA rejected a challenge to the jurisdiction of the High Court to make the order being appealed against.   He held that the Protected Disclosures Act did not deprive the High Court of jurisdiction and in effect only included the Labour Court as an additional court.

Wallis AJA discussed or referred to the recent cases of:

Makhanya v University of Zululand [2009] ZASCA 69

Gcaba v Minister for Safety and Security and others [2009] ZACC 26

Tshavhungwa v NDPP [2009] ZASCA 136

Mkumatela v The Nelson Mandela Metropolitan Municipality [2009] ZASCA 137

Young v Coega Development Corporation (Pty) Ltd 2009 (6) SA 118 (ECP)

In para [39] Wallis AJA pointed out that the “issues in this case, whilst arising in the context of employment, relate to questions of public safety and the professional obligations of persons in the position of Mr Weyers in the context of the accountability of a municipality for proper service delivery of electricity within its municipal area”.

After discussing the provisions of the PDA it was also held that:

“[45] The effect of these provisions is that the disclosure would be protected if Mr Weyers acted in good faith; reasonably believed that the information disclosed and the allegations made by him were substantially true; was not acting for personal gain and one or other of the conditions in section 9(2)(c) and (d) was satisfied.   Mr Pauw rightly conceded that the first three requirements were satisfied.   In the light of the evidence summarised earlier in this judgment he could do no less.   It is plain that Mr Weyers was throughout painfully aware of his professional responsibilities and of the need to provide residents of Tshwane with a safe and reliable electricity supply.   His concern about the dangers arising from appointing people who, after testing, he regarded as insufficiently skilled to undertake the onerous duties attaching to a system operator position shines through each document.   His bona fides and his belief in the truth of what he was saying are apparent.   As this case shows he made the disclosure at considerable personal cost and not for personal gain.   He acted in the discharge of what he conceived, and had been advised, was his professional duty.   The disclosure was made to parties that would manifestly be interested in such disclosure.   It would be surprising in those circumstances to learn that the disclosure was not protected”.

The SCA concluded that the letter embodied a protected disclosure and that is was impermissible for Mr Weyers to be disciplined and it would also be impermissible for any further disciplinary action to be taken against him.