City of Tshwane Metropolitan Municipality v Engineering Council of SA

SCA in protecting the appointment disclosure was ‘satisfied that the letter contained a disclosure of information regarding the conduct of those employees of the appellant who had taken responsibility for the selection of people to be appointed as system operators and a professional view on the suitability of the persons concerned to be appointed to those jobs. Both the letter itself and the background sketched earlier in this judgment demonstrate quite clearly that this information concerned the actual or prospective health and safety of individuals in the employ of the municipality and possibly outsiders as well and related to compliance with statutory obligations in regard to safety. Accordingly the letter constituted a disclosure in terms of the PDA. In terms of the definition of a protected disclosure in section 1, whether it was protected depends upon whether it was made to the Department of Labour and the Engineering Council in accordance with section 9 of the PDA’.

Essence

Protecting appointment disclosure upheld by SCA because it disclosed conduct of employees who were responsible for selecting people as systems operators.

Decision

(SCA 532/08) [2009] ZASCA 151; 2010 (2) SA 333 (SCA) ; (2010) 31 ILJ 322 (SCA) ; [2010] 3 BLLR 229 (SCA) (27 November 2009)

Order:

Disallowing appeal with costs, such costs to include those consequent upon the employment of two counsel.

Judges

WALLIS AJA (MPATI P, NAVSA, NUGENT AND MLAMBO JJA concurring)

Heard: 16 November 2009
Delivered: 27 November 2009

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at 572 574

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2020)

Van Niekerk and Smit (Managing editors) et al [email protected] 5ed (LexisNexis 2019) at

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at

Reasons

“[35] In my opinion the clear answer to this contention is that section 4(1) specifically states that an employee who may be subjected to an occupational detriment by his or her employer in consequence of having made a protected disclosure may approach ‘any court having jurisdiction’. In principle that is the appropriate High Court bearing in mind the jurisdiction conferred on High Courts by section 169 of the Constitution, read with section 19 of the Supreme Court Act 59 of 1959, and that the reference to ‘any court’ is extremely broad. There is nothing in section 4 to exclude that jurisdiction. Instead the section says that the Labour Court will also be included as a court having jurisdiction.

Bearing in mind that the Labour Court’s jurisdiction is carefully circumscribed in sections 156 and 157 of the LRA that statement alone might have occasioned some difficulties in understanding the precise extent of the Labour Court’s jurisdiction under the PDA. Accordingly the legislature went on in section 4(2) to place any dismissal in the category of automatically unfair dismissals and any other occupational detriment in the category of unfair labour practices, thereby locating the jurisdiction of the Labour Court under the PDA within the framework of its existing jurisdiction in respect of unfair dismissals and unfair labour practices. Subsequently it introduced sections 186(2)(d) and 187(1)(h) into the LRA to harmonise the two statutes. There is nothing in any of this to indicate that it was intended to deprive the High Court of jurisdiction in these matters.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

. . . . 

[30] It is a curious feature of this case that the initial complaint was not that the letter had been copied to the Engineering Council and the Department of Labour, but that it had been sent to the Municipal Manager and Mr Weyers was perceived to have gone over Dr Lukhwareni’s head thereby challenging his authority. What is clear is that the entire imbroglio arose when Mr Mahlangu intervened to prevent the implementation of the agreement of 10 May and it seems from this e-mail that he was also largely the driving force behind the disciplinary proceedings.

Be that as it may, until his suspension on 9 November, Mr Weyers continued in his post thereafter trying to resolve the impasse and participated in an interview process that resulted in six employment equity candidates being selected for system operator positions on the basis that they would undergo training. His conviction on the one disciplinary charge ultimately pursued against him precipitated the present proceedings. 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.

[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.

[33] According to its long title the purpose of the PDA is to make provision for procedures in terms of which employees in both the private and the public sectors may disclose unlawful or irregular conduct by their employers or by other employees and to provide for the protection of employees who make such disclosures. The preamble records that employees bear a responsibility to disclose criminal and any other irregular conduct in the workplace, and that employers have a responsibility to take all necessary steps to protect employees who make disclosures from reprisals as a result of making such disclosures.

All of this is located within the constitutional imperative of good, effective, accountable and transparent government in organs of state. Section 3(1) of the PDA states as its objects

  • the protection of an employee who makes a protected disclosure from any occupational detriment;
  • the provision of remedies for those who suffer an occupational detriment in consequence of having made a protected disclosure and
  • the provision of procedures to enable an employee, in a responsible manner, to disclose information concerning improprieties by his or her employer.

Whilst it was submitted to us that the purpose was to have the subject of a disclosure investigated, and no doubt it is hoped that will flow from disclosures, that is not a stated purpose of the PDA. It recognises that disclosures are frequently not welcome to an employer and seeks to protect the employee who makes a protected disclosure from retribution from their employer in consequence of having made a protected disclosure.

[34] Before addressing the question whether Mr Weyers’ letter contained a protected disclosure it is necessary to deal with a contention on behalf of the appellant that this is not a matter within the jurisdiction of the High Court, but one exclusively within the jurisdiction of the labour tribunals established under the LRA. The basis for that contention is an interpretation of section 4 of the PDA in the light of certain recent decisions by the Constitutional Court and this Court.

The starting point is section 4 itself, the relevant portions of which read as follows:

‘(1) Any employee has been subjected, is subject or may be subjected, to an occupational detriment breach of section 3, may —
(a) approach any court having jurisdiction, including the Labour Court established by section 151 of the Labour Relations Act, 1995 (Act No 66 of 1995), for appropriate relief; or
(b) pursue any other process allowed or prescribed by any law.
(2) For the purposes of the Labour Relations Act, 1995, including the consideration of any matter emanating from this Act by the Labour Court —
(a) any dismissal in breach of section 3 is deemed to be an automatically unfair dismissal as contemplated in section 187 of that Act, and the dispute about such a dismissal must follow the procedure set out in Chapter VIII of that Act; and
(b) any other occupational detriment breach of section 3 is deemed to be an unfair labour practice as contemplated in Part B of Schedule 7 to that Act, and the dispute about such an unfair labour practice must follow the procedure set out in that Part…’

[35] In my opinion the clear answer to this contention is that section 4(1) specifically states that an employee who may be subjected to an occupational detriment by his or her employer in consequence of having made a protected disclosure may approach ‘any court having jurisdiction’.

In principle that is the appropriate High Court bearing in mind the jurisdiction conferred on High Courts by section 169 of the Constitution, read with section 19 of the Supreme Court Act 59 of 1959, and that the reference to ‘any court’ is extremely broad.

There is nothing in section 4 to exclude that jurisdiction. Instead the section says that the Labour Court will also be included as a court having jurisdiction. Bearing in mind that the Labour Court’s jurisdiction is carefully circumscribed in sections 156 and 157 of the LRA that statement alone might have occasioned some difficulties in understanding the precise extent of the Labour Court’s jurisdiction under the PDA.

Accordingly the legislature went on in section 4(2) to place any dismissal in the category of automatically unfair dismissals and any other occupational detriment in the category of unfair labour practices, thereby locating the jurisdiction of the Labour Court under the PDA within the framework of its existing jurisdiction in respect of unfair dismissals and unfair labour practices.

Subsequently it introduced sections 186(2)(d) and 187(1)(h) into the LRA to harmonise the two statutes.

There is nothing in any of this to indicate that it was intended to deprive the High Court of jurisdiction in these matters.

[36] That straightforward reading of section 4 was challenged on the basis that because section 4(2) created what were referred to as LRA rights and remedies that meant that the Labour Court has exclusive jurisdiction. The explanation proffered for the reference to ‘any court having jurisdiction’ was that section 2 of the LRA excludes from its ambit members of the National Defence Force, the National Intelligence Agency, the South African Secret Service, the South African National Academy of Intelligence and Comsec and accordingly it was necessary to provide for another court to have jurisdiction in respect of these employees.

The submission for the appellant is that the Labour Court is the court having primary jurisdiction in cases under the PDA with the jurisdiction of the High Court being incidental thereto and limited to the excluded employees who amount at most to a few percent of all employees in South Africa.

[37] The answer is that this inverts the language and structure of the section. The section starts by saying that all employees may have resort to any court having jurisdiction. It then says that the Labour Court is included in that broader category presumably because otherwise it would have had no jurisdiction at all in respect of cases arising under the PDA.

Perhaps the effect is that for these purposes employees otherwise excluded from the scope of the LRA may have resort to its provisions and to the Labour Court or the CCMA, but it cannot mean that they are obliged to do so. Nor can it mean that employees otherwise subject to the LRA are deprived of the right to approach the ordinary courts for relief under the PDA. The language of the section is simply not apt for that purpose.

There was a strong body of authority prior to the Constitution that held that the jurisdiction of the then Supreme Court was not lightly excluded. That is now reinforced by the Constitution, which provides in section 169(b) that the High Court may decide any matter not assigned to another Court by an Act of Parliament.

Where the statute in question gives the right to approach any court having jurisdiction and then adds by way of inclusion the Labour Court that is not an assignment of the matter to the Labour Court. Had the intention been as suggested the section would have started by referring all cases under the PDA to the Labour Court and then, if necessary, dealing separately with the few employees who fall outside the purview of the LRA. It does not do so.

[38] Mr Pauw SC, who appeared for the appellant, sought to support his argument by reference to the recent decision of this Court in Makhanya v University of Zululand and that of the Constitutional Court in Gcaba v Minister for Safety and Security and others. He submitted, with reference to paragraph 66 of the latter judgment, that this was ‘a quintessential labour-related issue’ and accordingly that the Labour Court has exclusive jurisdiction in regard to disputes arising under the PDA, with the exception of disputes in regard to those employees excluded from the scope of operation of the LRA.

However that quotation is taken out of context. It must be seen in the light of paragraph 64 of the judgment where it was said that: ‘Generally, employment and labour relationship issues do not amount to administrative action within the meaning of PAJA.’ and also in the light of the full passage where the phrase occurs, which reads:

‘In Chirwa J found [at paras 142 and 150] that the decision to dismiss Ms Chirwa did not amount to administrative action. He held that whether an employer is regarded as “public” or “private” cannot determine whether its conduct is administrative action or an unfair labour practice. Similarly, the failure to promote and appoint Mr Gcaba appears to be a quintessential labour-related issue, based on the right to fair labour practices, almost as clearly as an unfair dismissal. Its impact is felt mainly by Mr Gcaba and has little or no direct consequence for any other citizens.’

The basis of the judgment in Gcaba is that the decision in regard to Mr Gcaba’s promotion did not amount to administrative action. Whilst pointing to the advantages of specialised courts and the undesirability of forum shopping it laid down no wider principle. The reference to a ‘quintessential labour-related matter’ is made in the context of the constitutional concept of an unfair labour practice that is given shape and form by the LRA.

[39] 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. Those issues are by no means solely or at all labour-related matters. The questions that can arise in relation to a protected disclosure, such as whether the person concerned had reasonable grounds for believing that a criminal offence had been committed or that a miscarriage of justice had occurred or that the environment is likely to be damaged are not labour-related issues and are more appropriately dealt with in the ordinary courts.

The mere fact that it is an employee who is protected under the PDA from an occupational detriment in relation to that employee’s working environment does not mean that every issue arising under the PDA is a ‘quintessential labour-related issue’ as contended by Mr Pauw. For those reasons I reject the challenge to the High Court’s jurisdiction.

[40] I turn then to consider the provisions of the PDA. Under section 3 of the PDA an employee who makes a protected disclosure may not be subjected to an occupational detriment by his or her employer on account, wholly or partly, of having made that disclosure. An occupational detriment is defined in section 1 as including being subjected to any disciplinary action.

Accordingly the question is whether Mr Weyers’ action in sending his letter to the Department of Labour and the Engineering Council constituted a protected disclosure. If it did then the appellant was not entitled to institute disciplinary proceedings against him and he was entitled to obtain the interdict that was granted by the Pretoria High Court.

[41] The material portion of the definition of a disclosure reads:

‘…any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show one or more of the following:
(a) …
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
(c) …
(d) that the health or safety of an individual has been, is being or is likely to be endangered…’

The first argument advanced before us was that the contents of the letter did not constitute information because they contained only Mr Weyers’ opinion that people who were not competent were about to be appointed as system operators and not a fact or similar form of information. However a person’s opinion is itself a fact, for as Bowen LJ pointed out:

‘the state of a man’s mind is as much a fact as the state of his digestion’.

In addition an opinion often relates to a fact the existence of which can only be determined by considering the views of a suitably qualified expert. Whether a person has the requisite skills to undertake a dangerous and skilled task is a question of fact, but prior to their appointment, which was the relevant time in this instance, that fact can only be ascertained by way of tests and the assessment of people who know what the job requires of their level of skill.

The letter dealt with that issue and as such contained information concerning the possible lack of competence of those who were likely to be appointed to the system operator posts. It also contained information to the reader about the state of mind of Mr Weyers as the person in charge of the PSC centre and the person responsible, both under his contract and by virtue of his appointment under the OHSA, for the safety of the machinery under his control and that of the PSC centre staff.

[42] A further difficulty with this approach to the nature of information under the PDA is that its narrow and parsimonious construction of the word is inconsistent with the broad purposes of the Act, which seeks to encourage whistleblowers in the interests of accountable and transparent governance in both the public and the private sector.

That engages an important constitutional value and it is by now well-established in our jurisprudence that such values must be given full weight in interpreting legislation. A narrow construction is inconsistent with that approach. On the construction contended for by Mr Pauw the threat of disciplinary action can be held as a sword of Damocles over the heads of employees to prevent them from expressing honestly held opinions to those entitled to know of those opinions. A culture of silence rather than one of openness would prevail. The purpose of the PDA is precisely the opposite.

[43] For those reasons I am satisfied that the letter contained a disclosure of information regarding the conduct of those employees of the appellant who had taken responsibility for the selection of people to be appointed as system operators and a professional view on the suitability of the persons concerned to be appointed to those jobs.

Both the letter itself and the background sketched earlier in this judgment demonstrate quite clearly that this information concerned the actual or prospective health and safety of individuals in the employ of the municipality and possibly outsiders as well and related to compliance with statutory obligations in regard to safety. Accordingly the letter constituted a disclosure in terms of the PDA. In terms of the definition of a protected disclosure in section 1, whether it was protected depends upon whether it was made to the Department of Labour and the Engineering Council in accordance with section 9 of the PDA.

[44] Section 9 reads in its material part as follows:

‘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) applies; and
(ii) in all the circumstances of the case, it is reasonable to make the disclosure.”

The conditions in subsection (2) that are relevant for the purposes of this case are contained in paragraphs (c) and (d) which read:

“(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,
in respect of which no action was taken within a reasonable period after disclosure; or
(d) that the impropriety is of an exceptionally serious nature.”

[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.

[46] Mr Pauw confined his contentions on this part of the case to the submission that Mr Weyers had not made a prior disclosure to his employer of substantially the same information in terms of paragraph (c), as the latter was at all times aware of his view, so that nothing was disclosed to it. He also contended that the disclosure did not relate to any impropriety as required by paragraph (d). Accordingly, so he submitted, the last necessary element of a protected disclosure was missing.

[47] I cannot accept these contentions. In regard to the first it was put to him that the effect of his submission was that if the employer knew of a problem before the employee went and reported it there could be no prior disclosure to the employer and accordingly no protected disclosure could be made to anyone else.

There was no answer to this point and the postulate cannot be correct. Its effect is that if an employee goes to the managing director and reports that bribes are being paid in order to secure contracts flowing from successful tenders that is not a disclosure if the managing director authorised the payments, and that knowledge would bar a protected disclosure to anyone else, such as the party issuing the tenders.

Such a construction would undermine the whole purpose of the PDA because it has the result that the more culpable the employer in the conduct giving rise to the report and the greater its knowledge of wrongdoing, the less would be the protection enjoyed by the employee.

[48] The alternative submission was that the letter merely reflected a disagreement between Mr Weyers and his employer and therefore there had been (and could be) no previous disclosure to the employer because that disagreement did not amount to a disclosure. However that is merely the argument that the letter contained no information decked out in a different guise and the way in which it is couched further undermines that original submission.

If the letter is so construed then the information it contains is that there is a disagreement between the manager of the PSC centre, a skilled and highly qualified electrical engineer, and the representatives of management and human resources concerning the abilities of persons to be appointed as system operators in the PSC centre.

That is a most important item of information that could cause the Department of Labour to intervene to conduct a safety inspection and engage with the relevant individuals to address the concerns being raised by Mr Weyers. Equally it could cause the Engineering Council to become involved in the interests of public safety and protecting the standing and reputation of its member. It also illustrates why these were the appropriate parties to whom to make the disclosure in question.

[49] In my view therefore the requirements of section 9(2)(c) were satisfied, it being common cause that the relevant officials in the municipality had disregarded Mr Weyers’ concerns and intended to ride roughshod over them. Accordingly he had made the disclosure to his employer and no action had been taken consequent upon it, other than to disregard his bona fide concerns. It was not suggested that a reasonable period for acting upon his disclosure had not passed.

[50] That conclusion suffices to hold that the letter embodied a protected disclosure. The same result is reached by considering the requirements of sub-section (d). An ‘impropriety’ is defined in section 1 as being conduct in any of the categories in the definition of disclosure, which includes any conduct that shows or tends to show that the health or safety of an individual has been, is being or is likely to be endangered.

Having regard to the nature of the enterprise and the nature of the work that system operators would be employed to perform it would be likely that the safety of an individual would be endangered by the appointment of a person who did not possess the skills necessary to do the job safely. That is an impropriety as defined and, against the background set out in paragraphs [3] to [6] above, it cannot be contended that it was not an impropriety of an exceptionally serious nature. Clearly lives were at risk as the municipality’s own advertisement for the position had stated.

[51] It follows that the respondents proved that the publication of the letters to the Department of Labour and the Engineering Council constituted a protected disclosure by Mr Weyers. It was accordingly impermissible for the municipality to discipline him for doing so and it would be impermissible for it to impose any sanction upon him for doing so.

Lest it be taken that in referring to the municipality in this regard I am attributing conduct to the council of the municipality it is appropriate for me to record that it is unclear from the record, and counsel were not in a position to inform us, of the extent to which the council, as opposed to its officials acting in accordance with their delegated powers were responsible for both the disciplinary proceedings and the opposition to the present litigation, including this appeal.

Accordingly my references to the municipality must be understood as referring to the conduct of those officials as representatives of the municipality. It is important to say this because it is not apparent that in the dispute that arose the broader interests of the residents of Tshwane and their need for service delivery, in the form of a safe and stable supply of electricity, were always kept in mind. In addition the manner in which these proceedings were conducted was deplorable with an answering affidavit being delivered by the manager: legal support services supported by purely formal confirmatory affidavits.

The answering affidavit was replete with vague, evasive and in many cases demonstrably untruthful denials, as well as an attack on Mr Weyers’ bona fides that could not be, and was not, supported by counsel in argument. This judgment would not be complete without recording that this was not justified and that it was not in the interests of the residents of Tshwane.

[52] The appeal is dismissed with costs, such costs to include those consequent upon the employment of two counsel.

Court summary

“Whistleblower – employee writing a letter to Engineering Council and Department of Labour concerning appointments to posts – whether contents of the letter constituted a protected disclosure under the Protected Disclosures Act 26 of 2000.”