Various Labour Law Topics

Labour Law cases decided in the South African Courts (Highlights and updated 6 1997 to 12 2025 [Copyright: Marius Scheepers /16.1.1])

Varied topics: Administrative action, Administrative law, Collective agreement, Common law, Constitutional Law, Definition, Information, Interest dispute, Mutual interest vs rights issue, Nature of dispute, Parity principle, Protected disclosure act, Public Holidays Act 1994, Trade Union, Transfer of Employment, Unreasonable Delay Rule.

Administrative action

Employment Equity Plan

J879/12

Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 15; (2016) 37 ILJ 1012 (LC); [2016] 5 BLLR 484 (LC) (26 January 2016)

Equity plan not implemented contrary to s 27(2) of SAPS Act Use of national demographics not in breach of s 195(1) of the Constitution

Promotion of Administrative Justice Act, 3 of 2000.

J467/17

Sekano v Tiger Brands Ltd (J467/17) [2017] ZALCJHB 188 (6 March 2017)

Gcaba v Minister of Safety and Security and others(2010) 31ILJ296 (CC)

the law has been settled in favour of a single system of law, i.e. that created by the LRA.

section 14(2) of the Employment of Educators Act[1] (the EEA)

CA10/2018

Member of the Executive Council for the Department of Education Western Cape Government v Jethro N.O and Another (CA10/2018) [2019] ZALAC 38; [2019] 10 BLLR 1110 (LAC); (2019) 40 ILJ 2318 (LAC) (13 June 2019)

[32] The respondent sought a review in terms of section 158(1)(h) of the LRA read with section 6 of PAJA. Section 158(1)(h) provides that the Labour Court may review any decision taken or act performed by the State in its capacity as employer, on such grounds that are permissible in law. Section 6 of PAJA permits any person to institute proceedings in a court or tribunal for the judicial review of an administrative action on various grounds if, inter alia, the action was taken irrationally, in bad faith, arbitrarily or capriciously. The respondent relied on various grounds specified in PAJA, but most relevantly: i) section 6(2)(f)(ii) of PAJA on grounds that the action was not rationally connected to the purpose of the empowering provision, the information before the administrator and the reasons given; and ii) sections 6(2)(e)(v) and (vi) of PAJA on grounds that the action was taken in bad faith, arbitrarily and capriciously.

Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) SA 313 (SCA)

the Equality Report suggests that socio-economic needs be considered within designated, vulnerable groups. In other words, affirmative action should continue to be implemented on the basis of race, gender and disability, given the persistence of current patterns of economic inequality. However, special measures should be targeted at vulnerable groups within apartheid-era classifications so as to recognise multiple forms of disadvantage that they continue to experience. In this context, the report recommends that the EEA be amended to target more nuanced groups on the basis of need, taking into account social and economic indicators.

J3092/18

Solidarity v Minister of Labour and Others (J3092/18) [2019] ZALCJHB 277; [2020] 1 BLLR 79 (LC); (2020) 41 ILJ 273 (LC) (8 October 2019)

the South African Human Rights Commission (SAHRC), issued a report entitled Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa (the Equality Report)...The report concludes, amongst other things, that the definition of designated groups in the EEA (broadly, the categories of persons who are beneficiaries of the affirmative action measures established by the EEA) is not in compliance with constitutional or international law obligations, and recommends that the EEA be amended to target more nuanced groups on the basis of need, and taking into account social and economic indicators.

Solidarity seeks only to have the findings and recommendations of the Equality Report given legal recognition and effect, at least until any reviewing court sets them aside. That being so, the court is not concerned with a direct challenge to the constitutionality of s 42 of the EEA

[27] In summary: There is no statutory or other regulatory provision that renders the Equality Report binding on government or any other party. The SAHRC itself does not intend the Report to be binding; it is a research report intended to contribute to the public discourse and to provide advice and guidance to government in fulfilling its constitutional obligations. Since the Equality Report is not binding on government or any other party, it follows that there is no basis on which this court is empowered to confirm or otherwise enforce the report’s findings and recommendations for the purpose sought by Solidarity, or for any other purpose.

jurisdiction ito section 1 of PAJA

JR496/17

Department of Education: Gauteng v Education Labour Relations Council and Others (JR496/17) [2021] ZALCJHB 392 (19 October 2021)

[24] It is apparent from the above authority that section 6 of EEA does not only provide for the powers the employer has in relation to the appointments, promotion and transfers of educators but also for the procedure to be followed in doing so. It is further apparent that the appointments made by the Head of Department of Education were plainly the result of an 'administrative action' as defined in section 1 of PAJA.

[25] The law is clear that the administrative decisions may only be subjected to judicial review in a Court or tribunal.[6] The Court is defined in section 1(iv) of PAJA as:(a) the Constitutional Court acting in terms of section 167(6)(a) of the 30 Constitution; or(b) (i) a High Court or another court of similar status; or(ii) a Magistrates Court, either generally or in respect of a specified class of administrative actions, designated by the Minister by notice in the Gazette and presided over by a magistrate designated in writing by the Minister after consultation with the Magistrates Commission.[26] Section 1(xiii) of PAJA defines the tribunal as any independent and impartial tribunal established by national legislation for the purpose of judicially reviewing an administrative action in terms of PAJA.[27] In the current matter, although the dispute was referred in terms of 186(2) of the LRA and the arbitrator described it as such, it is apparent from the reading of his award that what the arbitrator did was to review, set aside and substitute the decision of the applicant. This, is confirmed by the portion where the arbitrator states as follows: the arbitration is not the review of the process or the hearing de novo but a review of the employers decision[7][28] To an extent that the applicants decision sought to be challenged by the third respondent at the arbitration was the result of an administrative action as defined in s 1 of PAJA and further that the first respondent is not a Court or a tribunal as defined in PAJA, it follows that the arbitrator had no jurisdiction to review the applicants decision. As such, his award falls to be set-aside only on this ground.

[21] The first ground on which the arbitrators award was challenged was that he failed to give due consideration to sections 6(3) and 7(1) of the EEA. It is appropriate, at this point to set out the provisions in question.

labour disputes do not amount to administrative actions

JR1157/20

NTEU obo Moeketsi v The CCMA and Others (JR1157/20) [2022] ZALCJHB 226 (16 August 2022)

[28] It is by now settled law that labour disputes do not amount to administrative actions [Gcaba v Minister for Safety and Security and others (2010) 31 ILJ 296 (CC) and Chirwa v Transnet Limited and others 2008 (4) SA 367 (CC).]. Therefore, it is entirely inappropriate, in my view, to infuse into the LRA administrative law principles. It ought to be remembered that the dispute resolution bodies envisaged in the LRA do not function like Courts. They are not possessed with judicial review powers like the Courts do. Even section 7 (2) (a) (b) (c) of the Promotion of Administrative Justice Act (PAJA)[Act 3 of 2000.] does not deprive a Court of its review jurisdiction. A Court may direct a party to first exhaust internal remedies before it can review any administrative decision. Section 7 (1) (a) of PAJA expressly provides that the 180 days commence to run after the internal remedies are concluded. The LRA has no similar provisions.

action of dismissal by State does not constitute administrative action

J 1615/21

Leshabane v Minister of Human Settlements and Others (J 1615/21) [2023] ZALCJHB 341 (1 December 2023)

Dismissal – principle of legality – applicant relying on principle of legality to challenge dismissal – action of dismissal by State does not constitute administrative action – employee in public service still obliged to follow dispute resolution processes under LRA – basis for relief sought by applicant not competent

S 158(1)(h) of LRA – requires review application – applicant not seeking to review decision – relief under s 158(1)(h) not competent – section cannot be relied on in absence of review or where dispute resolution process under LRA available

Administrative law

PAJA

JA103/2015

Minister of Labour and Another v Public Services Association of South Africa and Another (JA103/2015) [2017] ZALCJHB 23 (25 January 2017)

Ministers reversal of designation of official as registrar of labour relations appointed in terms of S108(1) of the Labour Relations Act,no.66 of 1996 administrative action and reviewable in terms of the Promotion Of Administrative Justice Act, no.2 of 2000, Alternatively, the principle of legality in the constitution not established that registrar had duty to brief minister concerning specific matter registrar was dealing with in exercise of functions Registrar nevertheless found to have adequately briefed minister----Reversal of designation In circumstances confirmed to have been irrational and invalid Decision also confirmed to have been procedurally Reinstatement to position of registrar appropriate remedy---Appeal of Minister against judgment and order of labour court dismissed with costs.

PAJA

JR2395/14

Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JR2395/14) [2017] ZALCJHB 414 (6 April 2017)

Public Servants Association of SA on behalf of de Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC) at para 26.

The supposition that public servants had an extra string to their bow in the form of judicial review of administrative action, ie acts and omissions by the state vis--vis public servants, evaporated when the Constitutional Court in Chirwa v Transnet Ltd & others, held that the dismissal of a public servant was not 'an administrative act' as defined in PAJA and therefore not capable of judicial review in terms of that Act. Any uncertainty regarding the interpretation of the Chirwa judgment was removed in the subsequent decision in Gcaba v Minister for Safety & Security & others. The result is that a public servant is confined to the other remedies available to him or her.

section 17 of the PSA

DA9/16

Gangaram v MEC for the Department of Health, Kwazulu-Natal and Another (DA9/16) [2017] ZALAC 38; (2017) 38 ILJ 2261 (LAC); [2017] 11 BLLR 1082 (LAC) (13 June 2017)

Employee deemed dismissed in terms of section 17 of the PSA employee making representations for her reinstatement employer failed to respond employee implying that the failure to take a decision amount to a decision refusing her reinstatement susceptible to be set aside Held that the point of departure is whether the employee was properly deemed to have been dismissed that employer knew employees whereabouts as employee submitted leave forms as justification for each absence that in the absence of a refusal of the leave forms, employee rightly assuming that leave forms approved that the jurisdictional requirements for the employee to be deemed dismissed because of being absent for a period exceeding one calendar month without permission have not been satisfied, and as such there was no need for her to make representations in terms of s17(3)(b) for her reinstatement. Appeal upheld and Labour Courts judgment set aside employee reinstated retrospectively.

Collective agreement

Strike

Unions members not prohibited from striking if agreement has not yet been extended to them in terms of s 32

31, 32

J1398/08

Bravo Group Sleep Products (Pty) Ltd & Another v CCEPAAWU & Others

Remuneration

Unfair discrimination

increase to non-union members provided not join union

D104/08

SAFDU v Safcor Freight (Pty) Ltd t/a Safcor Panalpina & Others

Bargaining Council Arbitration

Own employment policy

Private Arbitration

Les favourable: no conciliation; cost order ito sect 35 Arbitration act

JA 52/10

National Bargaining Council for the Road Freight Industry and Another v Carlbank Mining Contracts (Pty) Ltd

Was about the fairness of the dispensation and that issue could not be the subject of arbitration proceedings.

C 381/12)

Public Servants Association obo Strauss v Minister of Public Works NO and Others

Bargaining council: ULP referral reduced from 90 to 30 days

J2264/17

Appels v Education Labour Relations and Others (J2264/17) [2017] ZALCJHB 428; (2018) 39 ILJ 816 (LC) (7 November 2017)

the key to a proper interpretation of s 51 (9) of the LRA is an understanding of the role of bargaining councils in the statutory dispute resolution system. Bargaining councils are voluntary bodies and operate according to the principles of self-regulation and autonomy. Having said that, bargaining councils are creatures of statute and may act only within the confines of the empowering legislation. The question to ask is whether s 51 (9), which clearly empowers bargaining councils to establish procedures to resolve any dispute, must be read subject to a condition that any agreed procedure must replicate time periods and any other limitations as they find reflection in the LRA. There is nothing in the LRA that establishes such a condition, or which otherwise places constraints on a bargaining council that agrees to establish dispute resolution procedures. On the contrary, there is at least one authority to support the proposition that bargaining councils may establish procedures that differ from those established by the LRA. [16]...This will ensure that procedures are rational, not arbitrary and free from caprice or ulterior purpose. The reasons proffered by the bargaining council for truncating the periods within which promotion disputes must be referred are obviously rational, intended as they are to serve the legitimate ends of minimising disruptions to learning and the expeditious resolution of disputes.

MIBCO v Osborne & others [2003] 6 BLLR 573 (LC)

However, section 51 (9) permits a bargaining council to exclude the operation of the LRA in the circumstances contemplated in that subsection, by establishing its own procedures by means of a collective agreement, which obviously can be extended to non-parties. The collective agreement, such as those to which I have referred in this judgement, circumvent the operation of the LRA.

Wanenburg v Motor Industry Bargaining Council & others (2001) 22 ILJ 242 (LC)

[20] Bargaining councils may design their own dispute systems in ways that ensure efficient and cost effect (sic) resolution and prevention of disputes. From the DRC terms of reference and procedures, there is nothing inherently prejudicial to non-parties. It provides a procedure for conciliation and arbitration of disputes and for granting combinations. It is consistent with the LRA. There is therefore no reason for the court to interfere by imposing any other procedure.[21] in the circumstances the DRC terms of reference and procedures can be applied to non-parties not as a collective agreement but as a procedure developed by the bargaining council for the industry in order to give effect to its obligations in terms of ss 51 (3) and 191 (2) in order to carry out its functions in terms of s 28 (1) (c) and (d).[23] Firstly, bargaining councils must be allowed the flexibility to design their own dispute systems so that the most inexpensive and effective procedures are adopted. If that means having a condonation application followed by an internal appeal, so be it. Even if the NRA makes no express provision for such an appeal, it would be consistent with the general policy of encouraging maximum use of private and internal dispute resolution mechanisms and the settlement of disputes at the lowest possible level.

collective agreement that regulates organisational rights

JA87/2015

South African Correctional Services Workers Union (SACOSWU) v Police and Prisons Civil Rights Union (POPCRU) and Others (JA87/2015) [2017] ZALAC 30; [2017] 9 BLLR 905 (LAC); (2017) 38 ILJ 2009 (LAC) (31 May 2017)

On appeal: the decision of the Labour Court was set aside on the basis that s 20 provides that nothing in Part A of Chapter III, which must include a s 18(1) threshold agreement, precludes the conclusion of a collective agreement that regulates organisational rights. This accords with the recognition that minority unions are entitled to have access to the workplace so as to challenge the hegemony of majority unions, at least to represent their members. On the same basis, the deduction of trade union subscriptions for a limited period was permissible. The appeal was consequently upheld with costs.

Section 24(1)

DA1/2015

Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016)

NUCW v Oranje Mynbou en Vervoer Maatskappy Bpk [2000] 2 BLLR 196 (LC) at paras 8 9

Whether a dispute about the application of a collective agreement, referred to in section 24(1) of the Act, would include the enforcement of a collective agreement when it is breached, is a further question which needs to be decided. Enforcement of an agreement only becomes an issue when there is some form of non-compliance with that agreement. When a party wishes to enforce the agreement it would be, at least interalia, because it believes the agreement is applicable to the party who is in breach thereof. Therefore a dispute about the application of a collective agreement (section 24(1) of the Act) applies to the situation where there is non-compliance with a collective agreement and one of the parties wishes to enforce its terms. Consequently, the CCMA, and not the Labour Court, should entertain disputes arising from the non-compliance with collective agreements.

t seems plain that the notion of enforcement articulated by Revelas J was of a step that followed up on the applicability of the collective agreement being proven, rather than a facet of the notion of application.

There is accordingly no need nor any justification to understand section 24in a sense so broad that any alleged breach of a term of a collective agreement means the dispute automatically falls within section 24.

Different time periods from LRA

JA19/18

Appels v Education Labour Relations Council (ELRC) and Others (JA19/18) [2019] ZALAC 49; [2019] 10 BLLR 985 (LAC); (2019) 40 ILJ 2284 (LAC) (10 July 2019)

[5]...collective agreements concluded in bargaining councils that regulate dispute resolution should be given primacy because section 51 of the LRA empowers bargaining councils to establish procedures to resolve disputes and in doing so, to design their own procedures that address the exigencies of the sector for which they are registered and to ensure efficient and cost-effective dispute resolution, and that these procedures may deviate from those established by the LRA.

freshold imposed by collective agreement

JA40/2018

Murray and Roberts (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA40/2018) [2019] ZALAC 58; [2019] 11 BLLR 1224 (LAC); (2019) 40 ILJ 2510 (LAC) (20 August 2019)

SACOSWU [2017] 9 BLLR 905 (LAC)

Section 18

[28] In SACOSWU on appeal the majority in the Constitutional Court held that majority trade union parties (and employers) could not, by entering into private threshold agreements contemplated in section 18 of the LRA and which were not laws of general application, limit a trade unions (and accordingly its members) right to engage in collective bargaining.[15] Accordingly, such a private threshold agreement could also not preclude a minority trade union from bargaining with the employer about organisational rights. Section 18 of the LRA does not authorise majority unions and employers from determining which constitutional rights other unions, which were not parties to the threshold agreement, may exercise.

Section 20

Section 20 of the LRA also declares expressly that nothing in part A of Chapter III (being the place in the LRA where section 18 is located) precludes the conclusion of a collective agreement that regulates organisational rights. Thus, not even a threshold agreement concluded between an employer and a majority union, or unions.[17]

section 23

Although section 23 of the LRA is not located in the position of the LRA referred to in section 20, it also does not preclude a collective agreement between an employer and a minority union regulating organisational rights where there is an existing threshold agreement in place between an employer and a majority trade union regulating those rights.[18]

organisational rights in section 12, 13 and 15

First, it may acquire those rights if it meets the threshold set in the collective agreement between the majority union and the employer. In that event, a minority union does not have to bargain before exercising the rights in question. Second, such a union may bargain and conclude a collective agreement with an employer in terms of which it would be permitted to exercise the relevant rights. Third, a minority union may refer the question whether it should exercise those rights to arbitration in terms of section 21 (8C) of the LRA. If the union meets the conditions stipulated in that section, the arbitrator may grant it organisational rights in the relevant provisions.[19]

amendment not rectified

JA11/17

Solidarity obo Members employed in motor industry v Automobile Manufacturers Employers Organisation (AMEO) and Others (JA11/17) [2019] ZALAC 63; [2020] 2 BLLR 142 (LAC); (2020) 41 ILJ 419 (LAC) (16 October 2019)

agency shop agreement is a collective agreement which could be amended and not rectified - Rectification is a remedy designed to correct the failure of a written contract to reflect the true agreement between the parties to the contract.

agency shop

J1338/19

UASA and Others v Western Platinum Limited and Others (J1338/19) [2019] ZALCJHB 158; (2019) 40 ILJ 2405 (LC); [2019] 11 BLLR 1283 (LC) (24 June 2019)

agency shop agreement invalid and unenforceable, agency shop agreement must expressly provide for matters prescribed by s 25(3) of the LRA

Solidarity and Others v Minister of Public Service and Administration (J648/03) [2003] ZALC 122 (21 April 2004).

In my view the agreement substantially complied with statutory requirements. However this does not make the agreement valid for reasons that the agency agreement interferes with a person’s constitutional right of freedom of association as contained in section 18 of Chapter 2 of the Bill of Rights. It therefore becomes an unfair labour practice to force the employee to join a trade union by making deductions on his salary to make him join the union. The legislature was aware of this and therefore sought to provide that the agreement should make provision for the fact that non-union members are not compelled to become members. This is a fundamental requirement necessary to make the agreement valid.[8]

Solidarity and Others v Minister of Public Service and Administration

jurisdiction: the Metal and Engineering Industries Bargaining Council (MEIBC) or within the jurisdiction of the Motor Industry Bargaining Council (MIBCO).

PA6/19

National Union of Metalworkers of South Africa v Commission for Conciliation Mediation and Arbitration and Others (PA6/19; PR03/18 ; PR50/18) [2020] ZALAC 8; (2020) 41 ILJ 1629 (LAC) (18 February 2020)

Agency fees deductible from employees identified in the collective agreement consonant with the Constitution and ILO recommendations.

CA6/2019

Municipal and Allied Trade Union of South Africa (MATUSA) v Central Karoo District Municipality and Others (CA6/2019) [2020] ZALAC 20; (2020) 41 (ILJ) 1918 (LAC); [2020] 9 BLLR 896 (LAC) (28 May 2020)

interpretation dispute: section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms

JR784/2016

Dioma and Another v Mthukwane N.O and Others (JR784/2016) [2020] ZALCJHB 138 (11 August 2020)

[36] In accordance with the provisions of section 23 of the Labour Relations Act, 1995 (LRA) collective agreements are binding on the parties. The purpose of section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms either correctly or at all.[20] The principles applicable to the resolution of such disputes are trite as restated in Western Cape Department of Health v Van Wyk & others.[(2014) 35 ILJ 3078 (LAC) at para 22. See also North East Cape Forests v SAAPAWU and others [1997] 6 BLLR 711 (LAC); Food and Allied Workers Union v Commission for Conciliation, Mediation and Arbitration & others (2007) 28 ILJ 382 (LC), at para 35] These are that: I. When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement; ii. The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties. iii. A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement. iv. The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made;[22]v. The parol evidence rule when interpreting collective agreements is generally not permissible when the words of the memorandum are clear.vi. Collective agreements are generally concluded following upon protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally.

interpreting the provisions of a collective agreement

JR1619/19

City of Tshwane Metropolitan Municipality v South African Municipal Workers Union obo Members and Others (JR1619/19) [2021] ZALCJHB 307 (17 September 2021)

Commercial Workers Union of SA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 90.

The proper approach to the construction of a legal instrument requires consideration of the document taken as a whole. Effect must be given to every clause in the instrument and, if two clauses appear to be contradictory, the proper approach is to reconcile them so as to do justice to the intention of the framers of the document. It is not necessary to resort to extrinsic evidence if the meaning of the document can be gathered from the contents of the document.'

a) When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement; b) The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties. c) A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement. d) The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made;

Association of Mineworkers and Construction Union and Others v Chamber of Mines of SA and Others (2017) 38 ILJ 831 (CC) at fn 28; Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at para 18; Western Cape Department of Health v Van Wyk and Other (2014) 35 ILJ 3078 (LAC) at para 22; North East Cape Forests v SAAPAWU and Others [1997] 6 BLLR 711 (LAC); Food and Allied Workers Union v Commission for Conciliation, Mediation and Arbitration and Others (2007) 28 ILJ 382 (LC) at para 35.

Section 77(3): claim for payment of salary. 77. Jurisdiction of Labour Court - (3) The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.

JS523/19

Solidarity obo Radzilani v Eskom Holdings SOC Ltd (JS523/19) [2022] ZALCJHB 179 (6 July 2022)

[81] In Rand Water v Stoop[7] the Labour Appeal Court rejected the contention that section 77(3) of the Basic Conditions of Employment Act[8] (BCEA) only permits the Labour Court to interpret the terms of an employment contract and interpret it, holding that this was unreasonable in view of the remedies the Labour Court may grant in terms of section 77A (e). Secondly, it was acknowledged that the word concerning in section 77(3)[9] conveyed cause and effect but, it was held, this does not imply that there was to be a direct or indirect link between the contract of employment and the claim.

Closed shops and agency shops

J 1457/2023

New Kleinfontein Goldmine (Pty) Ltd v Association of Mineworkers and Construction Union and Others (J 1457/2023) [2023] ZALCJHB 300 (24 October 2023)

"[7] Closed shop agreements are defined as “agreements between an employer and a trade union requiring all employees covered by the agreement to be members of the union”.[2]

[8] It is a collective agreement concluded between the majority union and the employer in which the employees covered by the agreement are obliged to become members of the majority union.

[9] In Solidarity on behalf of Members Employed in the Motor Industry v Automobile Manufacturers Employers' Organisation & others[[2019] ZALAC 63; (2020) 41 ILJ 419 (LAC) at para 7.], the Labour Appeal Court (LAC) confirmed that:

‘Agency shop agreements are less intrusive than closed-shop agreements which compel employees to be members of majority trade unions. An agency shop agreement does not compel membership of the union but only requires employees who benefit from the fruits of collective bargaining achieved by the majority union to pay an agency fee.’

[10] In SA Transport & Allied Workers Union v Servest Security (Pty) Ltd—A Division of Servest Group & others[[2021] ZALCJHB 235; (2022) 43 ILJ 426 (LC) at para 26.], the court described closed shop agreements as “inherently the strongest form of union security arrangements designed to address the problem of ‘free riders’ from unduly benefiting from the efforts put into collective bargaining by a trade union which is party to the closed shop agreement”. The purpose of such an arrangement, like that of an agency shop, is to promote stable and orderly collective bargaining. The closed shop achieves this objective by stabilising union membership, limiting the proliferation of unions, removing tensions in the workplace and requiring the union to be responsible for all employees in the workplace.[5]"

“contractual to the holder” and “personal to the holder” are defined.

DA 22-21

Kwadukuza Municipality v Lutchman and Another (DA 22-21) [2024] ZALAC 22 (2 May 2024)

‘The terms “contractual to the holder” and “personal to the holder” are defined. They appear at least to mean that the employee will not suffer a reduction in salary or other benefits, which could happen in the case of a demotion on other grounds…’

[36] In coming to her conclusion on the definition of CTI, Rabkin-Naicker J referred to the judgment of Pretorius v Rustenburg Local Municipality And Others[ [2007] ZALAC 15; (2008) 29 ILJ 1113 LAC at para 34.] where the definition of CTI or CTH and PTH (Personal to Holder) were defined as follows:

closed shop: prevent Servest Security from deducting agency fees from its members

J806/21

South African Transport & Allied Workers Union v Servest Security (Pty) Ltd and Another (J806/21) [2024] ZALCJHB 120; (2024) 45 ILJ 1308 (LC) (14 March 2024)

[1] What are the legal requirements for validity of a closed shop agreement? Does a contractual provision requiring membership of a trade union (as a prerequisite for the validity of the employment contract) result in a pre-entry closed shop agreement prohibited in terms of section 26(3)(c) of the Labour Relations Act (LRA)?[1] May an employer deduct agency fees from employees belonging to a trade union absent a provision in the closed shop agreement permitting such deduction? These and other interesting questions arose during the course of the present dispute.

[80] This takes us from the safe harbour of a post-entry closed shop into the forbidden land of the pre-entry closed shop. The closed shop landscape at Servest (the collective agreement read with the employment contract template) may not impose any union membership restriction on the application for jobs, but it imposes it as a condition on the making of the contract of employment. It does not make it incumbent on every worker to join the trade union (within a stated period after having taken up the job), but instead makes union membership a condition for the making or conclusion of the contract of employment, not merely a term of the employment contract. This is the prohibited area identified by Kahn-Freund and the restriction on closed shops imposed by the legislature in section 26(3)(c) of the LRA.

41] Section 26(7) envisages that there may be employees who, even where they are not required to pay trade union membership fees, would remain in service of the employer despite refusing to join the trade union.[31] These employees would then have to pay an agency fee. The provisions pertaining to an agency fee are incorporated in section 26 by means of section 26(8).[32]

[48] If it were correct that the terms of a Collective Agreement which was cancelled by one of the parties thereto continued to live on through the contracts of employment into which they were incorporated, this would in effect render the provisions of Section 23 (4) redundant, which could not have been intended by the Lawmaker. This would also hamper orderly collective bargaining rather than promote it.

JR266/22

Public Servants Association of South Africa and Others v Commission for Conciliation Mediation and Arbitration and Others (JR266/22) [2024] ZALCJHB 255; [2024] 10 BLLR 1087 (LC) (8 July 2024)

52] In the wake of the Imperial decision referred to above, it appears to me that where a Collective Agreement is cancelled by one of the parties to such agreement, this has the effect that the terms of the cancelled / terminated Collective Agreement, do not live on through the contracts of employment into which they were incorporated. This position gives full effect to the provisions of section 23(4) of the LRA and accordingly promotes collective bargaining. (Imperial [2017] 12 BLLR 1189 (LAC).)

[61] In the matter of Apollo tyres[5] the Court unanimously held that the term 'benefit' means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or privilege, subject to the employer's discretion.

[18] Section 73A finds application in relation to payment related disputes, but not when the parties are also in dispute about the interpretation or application of a collective agreement.

JS489/2022

Nhlapo v Department of Health Free State (JS489/2022) [2024] ZALCJHB 498 (10 December 2024)

Locus Standing

JR874/22

Skhosana v Commission for Conciliation, Mediation and Arbitration and Others (JR874/22) [2025] ZALCJHB 23; [2025] 6 BLLR 633 (LC); (2025) 46 ILJ 1019 (LC) (9 January 2025)

[26] There is Labour Court authority which supports the view that only parties to a collective agreement may refer disputes on the interpretation or application of the collective agreement:

"26.1. In Arends and others v SA Local Government Bargaining Council and others (Arends LC)[8], Moshoana AJ (as he then was) held that “party to a dispute” in sections 24(2) and (5) of the LRA meant only the parties to the collective agreement; if the Legislature intended to allow individual employees to refer disputes about collective agreements, it would have not used the word “parties”, but rather “employee/s”. He concluded that employees bound by collective agreements are not parties but beneficiaries and therefore cannot make referrals under sections 24(2) and (5) of the LRA. Moshoana AJ continued to explain how individual employees could invoke collective agreements through individual rights disputes:

‘For non-parties, a collective agreement may serve as evidence of a particular contended right. In such instance, if interpretation arises, it becomes an issue in a dispute and not the dispute.’[9]

26.2. In South African Police Services v Du Preez and Others In Re: Du Preez v South African Police Services, (Du Preez)[10] Moshoana J reaffirmed his position in Arends LC. Although Arends LC was taken on appeal and the Labour Court decision overturned, Moshoana J reasoned that:

‘On appeal, the LAC did not upset the above finding. By necessary implication, the findings were approved by the LAC.’

26.3. This approach was followed in other cases, including recently in Minister of Justice and Constitutional Development v DS Panza and Others, which expressly relied on Du Preez.[11]"

[31] Finally, I am persuaded by the text of the LRA which distinguishes in section 24 between a “party to a collective agreement” and a “party to a dispute” over the interpretation or application of the collective agreement: An individual who disputes the interpretation or application of a collective agreement therefore is entitled to refer that dispute to the CCMA, because they are the party to the dispute.[19]

32] I therefore find that the commissioner erred in finding that Mr Skhosana lacked standing to refer a dispute over the interpretation or application of a collective agreement because he was an individual: an individual is not automatically precluded from referring such a dispute. (Even if Arends LC and Du Preez were correct, they hold that only parties to a collective agreement may refer a dispute about the interpretation or application of a collective agreement. The commissioner did not give effect to this position in simply asking each party, “What do you understand by collective?” and ending his inquiry when they both responded that it is a group.

[34] The Constitutional Court has held that “in determining a litigant’s standing, a court must, as a matter of logic, assume that the challenge the litigant seeks to bring is justified”.[20] Assuming then that Mr Skhosana’s interpretation of the Recognition Agreement has merit, it cannot be denied that he was adversely impacted by Eskom’s interpretation of it. This gives him standing.

interpretation and application of

JR239/20

Mantsopa Local Municipality v Samwy obo Tsekoe and Others (JR239/20) [2025] ZALCJHB 34 (30 January 2025)

"[17] Our Courts have laid down the principles and considerations applicable to the resolution of disputes concerning the interpretation and application of collective agreements. This Court, per Tlhotlhalemaje J, in BIFAWU obo Members v Commission for Conciliation, Mediation and Arbitration and Others[7] (BIFAWU) aptly summarised the applicable principles as follows -

‘[15] In accordance with the provisions of section 23 of the LRA, collective agreements are binding on the parties. The purpose of section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms either correctly or at all. The principles applicable to the resolution of such disputes are trite as restated in Western Cape Department of Health v Van Wyk and Others. These are that;

i. When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement;

ii. The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.

iii. A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement.

iv. The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made;

v. The “parole evidence” rule when interpreting collective agreements is generally not permissible when the words of the memorandum are clear.

vi. Collective agreements are generally concluded following upon protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally.’"

16.1.1

interpretation

CA20/24

Sugar Berry CC t/a Horison Staff Solutions v Motor Industry Bargaining Council and Others (CA20/24) [2025] ZALAC 48 (2 October 2025)

[33] More than a decade ago this Court has held that a collective agreement concluded in terms of the LRA is not an ordinary contract. Therefore, the context within which such an agreement operates is different from that of a commercial contract. Collective agreements operate within the framework established by the LRA and the interpretation thereof ought to be approached with the objects and purpose of the LRA in mind.[22]

"37] In eThekwini Municipality (Health Department) v Independent Municipal & Allied Trade Union on behalf of Foster & others,[(2012) 33 ILJ 152 (LAC).] this Court held that a collective agreement must be interpreted “in such a manner as to ensure effective and sound industrial relations”.[26] Further, in Western Cape Department of Health v Van Wyk and others,[[2014] 11 BLLR 1122 (LAC); (2014) 35 ILJ 3078 at para 22.] this Court held:

‘In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives his/her powers from the Act he/she must at all times take into account the primary objects of the Act. The primary objects of the Act are better served by an approach that is practical to the interpretation and application of such agreements, namely, to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to all the parties.’

"

[38] It must be emphasised that when interpreting a collective agreement, one must bear in mind that it is not like a commercial contract where a degree of primacy is placed on contractual autonomy, in the form particularly of the intention of the parties. When a collective agreement is interpreted, values based on the social character of the agreement are relevant. To this end, the emphasis is always on the objects and purposes of the LRA.

Common law

Buthelezi relied on his common law rights and not on an alleged unfair dismissal and therefore the Labour Court had jurisdiction to hear the matter and grant relief.

JA 19/03

National Electronic Media Institute of South Africa v Buthelezi, Nkanyiso

Contract of employment; No need common law since LRA; Apply common law save where conditions about unfairness dismissal

Only claim for reasonable notice

C657/09

Moloto v City of Cape Town

Probation procedure: hearing

JR628/13

Frank v Commission for Conciliation, Mediation and Arbitration and Others (JR628/13) [2017] ZALCJHB 9 (17 January 2017)

A hearing in the circumstances does not entail a disciplinary hearing as one will expect in a case of misconduct, which the applicant contends his was the case, which contention has no merit in law or fact.

s 158(1B) of the LRA

J2055/19

South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others (J2055/19) [2019] ZALCJHB 318; (2020) 41 ILJ 493 (LC) (18 October 2019)

[12] ... The definition of dismissal in s 186 of the LRA expressly includes circumstances where the employer has terminated employment with or without notice. Whether the employer casts the termination in the contractual language of acceptance of the repudiation of a contract of employment and an election to cancel the contract, this is no more or no less than a termination of employment, with or without notice (i.e. a summary termination), which in turn, by definition, constitutes a dismissal for the purposes of s 186.

"[11] To the extent that Mr. van As, who represented the SABC, urged me at least to issue a directive in any ruling that I make that commissioner Du Plessis hear evidence on the jurisdictional point, something that the SABC says that he has refused to do. I fail to appreciate how such an order can be made in the context of what amounts to an application to stay an arbitration hearing pending a review of a jurisdictional ruling made by another commissioner. Control over arbitration proceedings (and the basis on which evidence is led) is best left to the presiding commissioner. It is not the function of this court to micro-manage arbitration hearings and issue directions to commissioners as to how they should conduct a hearing. In any event, as I have observed, some jurisdictional points (particularly those concerned with whether the referring party is an employee as defined in the LRA or whether any termination of employment constituted a dismissal) are best determined once all the evidence is in they need not be the subject of a discrete enquiry."

[11] To the extent that Mr. van As, who represented the SABC, urged me at least to issue a directive in any ruling that I make that commissioner Du Plessis hear evidence on the jurisdictional point, something that the SABC says that he has refused to do. I fail to appreciate how such an order can be made in the context of what amounts to an application to stay an arbitration hearing pending a review of a jurisdictional ruling made by another commissioner. Control over arbitration proceedings (and the basis on which evidence is led) is best left to the presiding commissioner. It is not the function of this court to micro-manage arbitration hearings and issue directions to commissioners as to how they should conduct a hearing. In any event, as I have observed, some jurisdictional points (particularly those concerned with whether the referring party is an employee as defined in the LRA or whether any termination of employment constituted a dismissal) are best determined once all the evidence is in they need not be the subject of a discrete enquiry.

if a litigants cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA; Jurisdiction Labour Court

J1849/2019

DEMAWUSA and Others v City of Johannesburg (J1849/2019) [2019] ZALCJHB 368; (2020) 41 ILJ 912 (LC); [2020] 6 BLLR 574 (LC) (7 November 2019)

Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC).

[137] The second basis for my conclusion is that the applicants appeal should be dismissed is a principle that, for convenience, I call LRA remedy for an LRA breach. The principle is that, if a litigants cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA. It cannot go outside of the LRA and invoke the common law for a remedy. A cause of action based on a breach of an LRA obligation obliges the litigant to utilise the dispute resolution mechanisms of the LRA to obtain a remedy provided for in the LRA.

They clearly frame their claim on the basis of what they allege to be an unlawful suspension, and an unlawful deduction from remuneration, on the basis respectively of the breach of the collective agreement and s 34 of the BCEA.

[7] The effect of this judgment is that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), that applicant has no remedy under the LRA and this court has no jurisdiction to make any determination of unlawfulness. If a remedy is sought under the LRA, the applicant must categorise the alleged unlawfulness as unfairness.

Mayo v Bull Brand Food (Pty) Ltd (2010) 31 ILJ 951 (LC) and Indwe Risk Services (Pty) Ltd v Hester Petronella van Zyl (2010) 31 ILJ 956 (LC)

[15] Turning next to the applicants claim of unlawful deductions, that claim must suffer a similar fate. The applicants base their claim on a breach of s 34 of the BCEA. That Act establishes its own mechanism for enforcement, one that requires (in most instances) that a complaint be lodged with a labour inspector. This court exercises a supervisory jurisdiction in respect of appeals form decision made ultimately by the director-general, or arbitration award issued by the CCMA. Absent a claim in contract, this court lacks jurisdiction to enforce the provisions of the BCEA as a court of first instance.

[16] In summary: the applicants claim of an unlawful suspension is not a claim contemplated by the LRA, and neither that Act nor any other statute confers jurisdiction on this court to make a determination of the lawfulness or validity of a suspension. In any event, the true nature of the suspension dispute is one that concerns the application of a collective agreement, a dispute that must be arbitrated. The claim of unlawful deductions from remuneration is one that must be pursued in terms of the enforcement mechanisms of the BCEA. Given my conclusion that in respect of both legs of the applicants claim this court lacks jurisdiction, it is not necessary for me to consider whether the applicants have been the requirements for final interdictory relief.

a remedy against unfair dismissal was to supplement common law rights of an employee whose employment might be lawfully terminated and that there could be no suggestion that either the new constitutional dispensation or the LRA deprived employees of the common law rights to enforce the terms of a fixed term contract of employment.

J 571/2021

Tsekedi v Masilonyana Local Municipality (J 571/2021) [2021] ZALCJHB 96 (4 June 2021)

Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407 (SCA), the Supreme Court of Appeal held that the clear purpose of the introduction of a remedy against unfair dismissal was to supplement common law rights of an employee whose employment might be lawfully terminated and that there could be no suggestion that either the new constitutional dispensation or the LRA deprived employees of the common law rights to enforce the terms of a fixed term contract of employment. At paragraph 17 of the judgment, the court concluded as follows: The 1995 Act does not expressly abrogate employees common law entitlement to enforce contractual rights and nor do I think that it does so by necessary implication. On the contrary there are clear indications in the 1995 Act that the legislature had no intention of doing so. And further, at paragraph 22:In my view chapter VIII of the 1995 Act is not exhaustive of the rights and remedies that accrue to an employee upon the termination of a contract of employment. Whether approached from the perspective of the constitutional dispensation and the common law or merely from a construction of the 1995 Act itself I do not think the respondent has been deprived of the common law rights that he now seeks to enforce. A contract of employment for a fixed term is enforceable in accordance with its terms and an employer is liable for damages if it is breached on ordinary principles of common law.

[22] Fedlife concerned a claim for contractual damages but the above claim is no less valid in respect of an election to enforce the terms of an employment contract. This court has made clear on many occasions that subject to its discretion, the remedy of specific performance is available to an aggrieved party in the event of a material breach of an employment contract. (See also Makhanya v University of Zululand 2010 (1) SA 62 (SCA) and more recently, Archer v Public School-Pinelands High School & others (2020) 41 ILJ 610 (LAC) where the court affirmed, at paragraph 22 of the judgment, that the impact of section 77 (3) of the BCEA is that employees are free, in addition to pursuing the rights in terms of the LRA, to pursue claims in the High Court on this court arising from their contracts of employment.)

wrongful termination: The limited damages rule

JS1037/2019

Maseko v South African Post Office (JS1037/2019) [2021] ZALCJHB 385 (20 October 2021)

[12] The Labour Appeal Court in dealing with the limited damages rule summarise the common law position in National Entitled Workers Union v CCMA:[(2007) 28 ILJ 1223 (LAC) para 15] ."Under common law the employer's position was very strong as against an employee. If an employee was dismissed lawfully, egg if he was given proper notice of termination of his contract of employment or if he was paid notice pay in lieu of notice, the employee had no remedy in law even if the employer had no reason to terminate the contract of employment or if the dismissal was very unfair. The courts could also not provide any remedy in that situation. If the contract of employment was terminated unlawfully, generally speaking, the only relief that the courts could provide such employee was to award the employee damages which would be equivalent to the notice pay he would have been paid in lieu of notice." (Own emphasis)

[13] This is authority for the proposition that as long as the employer gives contractual notice of termination, or pays wages in lieu of notice, there is no recognised claim in law. It goes further to say that even if the employment contract is unlawfully terminated as alleged by the applicant, the employee's remedy is limited to damages equal to what he would have earned during the contractual notice period.

[14] The Labour Court followed this reasoning in S A Music Rights Organisation Ltd v Mphatso:[(2009) 30 ILJ 2482 (LC) at para 17]" This approach reflects the conclusion that the purpose of damages for wrongful dismissal is only to protect the worker's interest in remuneration and benefits for the denied period of notice or the unexpired fixed term, and that its quantification is to be conducted on the assumption that the worker's pecuniary losses are limited to that remuneration and those benefits."

[15] However, in Harper v Morgan Guarantee Trust Co of New York, Johannesburg[2003 JOL 11932 (W) at para 5.2] the Court per Flemming DJP held as follows:"5.2.1 The principles are part also of our law. In Mustapha v Receiver of Revenue 1958 (3) SA 343 (A) at 358F it was said that in the case of a contract, a party's "reasons or motives for exercising an admitted right of cancellation of that contract are normally irrelevant". The result that the employee ends up with what he would have had if the employer had stayed within his legal right to terminate by notice was stated in Grundlingh v Beyers 1967 (2) SA 131 (W) at 142; Langeni v Minister of Health and Welfare 1988 (4) SA 93 (W) at 101C.5.2.2 If in a specific case the right to give notice may only be exercised within some limitation, it would be for the plaintiff to prove and therefore to plead such a term (Carr v Jockey Club of South Africa 1976 (2) SA 717 (W) at 728, 729). Plaintiff has not pleaded that her employer's "discretion" a misguiding word was a fettered one".

[16] Flemming DJP also cited with approval the decision of the House of Lords in Johnson v Unisys Ltd[(2001) UKHL 13] where Lord Hoffman concluded that: “The action for wrongful dismissal could therefore yield no more than the salary which should have been paid during the contractual period of notice."[17] Flemming ADJP also cited with approval Wallace v United Grain Growers Ltd[(1997) 152 DLR (4th) 1] where the Court held that: “The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal A "wrongful dismissal" action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal a wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong only arises if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The remedy for this breach of contract is an award of damages based on the period of notice which should have been given."

[21] In Volschenk v Pragma Africa (Pty) Ltd[7] the employee claimed that his employer was in breach of contract with regard to the payment of commission and in other respects. The employee elected to terminate the contract of employment on notice. He then initiated a claim, inter-alia, for payment of damages in respect of future loss of earnings for the period of twelve months. The court held that as the employee terminated the contract on two months' notice, worked during the two months and was paid for the two-month period the employee had suffered no loss as a loss would only have been in respect of the notice period if the employee had not been paid during that time.[22] The Volschenk-matter is on all fours with the case in casu.

[23] In BMW (SA) (Pty) Ltd v National Union of Metalworkers of SA[(2020) 41 ILJ 1877 (LAC)] the employee was given notice to retire at the age of 60 while the Court found that he had exercised an option to remain on a retirement age of 65 but that BMW had failed to record his election and incorrectly retired him at 60. His actual retirement age remained 65.[24] The unilateral change to the retirement age constituted a repudiation which the applicant accepted, and which constituted an automatically unfair dismissal as the dismissal was based on age discrimination. The LAC held that the employee was entitled, as he claimed, for compensation for the automatically unfair dismissal and for damages in respect of the unfair discrimination. In his cross-appeal before the LAC the employee also claimed contractual damages.[25] The LAC had the following to say:"[ 71] However, even if this court were inclined to find that Mr Deppe has succeeded in proving that BMW repudiated his employment contract by amending his retirement age from 65 to 60 without his consent, Mr Deppe would only be entitled to contractual damages in the amount of one month's notice in terms of his contract of employment. His damages are limited to the position he would have been in, under the contract, had the breach not occurred. Mr Deppe's contractual claim for five years' damages, therefore, is misplaced as Mr Deppe's contractual claim for wrongful termination of employment is limited to one month's notice pay."[26] The limited damages rule clearly applies to the applicant's contractual claim for wrongful termination, that is a repudiation accepted by the applicant.

Unlawful dismissal

J569/22

National Education Health and Allied Workers Union v University of South Africa (J569/22) [2022] ZALCJHB 162 (21 June 2022)

Unlawful dismissal section 158(1)(a)(iv) of the LRA the Labour Court has no jurisdiction to declare the dismissal of employees unlawful.

section 77(3) of the BCEA breach of contract contractual terms sought to be vindicated must be plainly pleaded. Where the employer availed itself to its contractual right to terminate the contract of employment, a breach of contract claim by the employees is not justiciable under section 77(3) of the BCEA.

delictual claim

JS501/2021

WILLIAM STANLEY OWEN O'BRIEN and HEAVEN SENT GOLD SOUT

[10] The submission on behalf of the respondent is that the applicant's claim, being a delict, arises not from a contract of employment but a breach settlement agreement. In amplification of the argument,...court to consider the five elements of delict

dismissals were unlawful

JA78/21

Passenger Rail Agency of South Africa and Others v Ngoye and Others (JA78/21) [2024] ZALAC 18; (2024) 45 ILJ 1228 (LAC); [2024] 7 BLLR 706 (LAC) (26 March 2024)

[5] The Labour Court acquires its jurisdiction from section 157(1), which authorises it to deal with matters emanating from the LRA, except where the LRA provides otherwise.[3] One such instance is where jurisdiction is assigned to the CCMA. Furthermore, the Labour Court is afforded jurisdiction in terms of section 77(1) read with section 77(3) of the Basic Conditions of Employment Act[4] (BCEA). The last-mentioned sections authorise the Labour Court to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of the contract.[5]

[7] There have been a number of Supreme Court of Appeal (SCA) decisions, where it has been expressly stated that the dispute resolution procedure provided for in the LRA does not defeat an employee’s right to rely on common law recourse. Fedlife Assurance Ltd v Wolfaardt[6] (Fedlife), Makhanya v University of Zululand[7] (Makhanya) and SA Maritime Safety Authority v McKenzie[8] (SA Maritime Safety Authority) are three such judgments. The common thread highlighted in these judgments is that the courts will have jurisdiction to hear a dismissal dispute as long as the employee pleads the claim as one relating to unlawfulness or breach of contract, and not to unfairness. The emphasis is therefore on the form that the claim takes.

[10] The SCA further held that the right not to be unfairly dismissed or not to be subjected to an unfair labour practice, termed “LRA rights” were not the only rights that an employee was entitled to. While the CCMA had exclusive jurisdiction to enforce “LRA rights” this was not the case with other rights, such as contractual rights.[11]

[20] The Labour Appeal Court (LAC) in Zungu v Premier, Province of KwaZulu-Natal and Another[[2017] ZALAC 26; (2017) 38 ILJ 1644 (LAC) (Zungu (LAC)).] gave priority to the substance of the dispute...Both courts found that the issue in dispute was a dismissal, which needed to be arbitrated by the CCMA in line with section 191 of the LRA. The CC agreed. The effect of the judgment led to the rejection by the Labour Court of claims lodged by dismissed employees who “tried to dress up unfair dismissal” as a contractual claim, instead of dealing with it in line with the section 191 procedure.[31]

[22] In Baloyi, the CC had to determine whether an employee could institute a contractual claim to challenge a dispute stemming from her dismissal. Here, the employee was ostensibly dismissed for poor performance during her probationary period.[32] She claimed that her termination was unlawful as it constituted a breach of her employment contract and amounted to the exercise of public power that breached the principle of legality.[33]

[25] While I find the minority judgment in Fedlife more appealing, I must accept that Baloyi is the existing authority on the matter, which I am bound by, and which I will duly follow. However, I feel compelled to express my concerns with the disadvantages that flow from such an approach.

"[29]...Toyota SA Motors (Pty) Limited v Nzuza and others[(2020) 41 ILJ 908 (LAC).]:

‘….it appears to have become fashionable for dismissed employees to come to the Labour Court in terms of the BCEA and claim breach of contract seeking either specific performance or damages. I do not know the reason that has given rise to this, but the risk associated with claims made in terms of the BCEA, as in this matter before this Court, is enormous. Firstly, unlike in the LRA the claimant must prove an unlawful breach and not unfairness for the termination of the employment; next in terms of the LRA reinstatement is generally compulsory where a dismissal is found to be substantively unfair, specific performance consequent upon a breach is not, and generally it is a discretionary relief.[43]"

[46] In the circumstances where a contract is terminated for a breach albeit consequent on unlawful conduct by the breaching party, specific performance is not a relief that automatically follows: it is a discretionary relief. A court must look at the facts and circumstances of the breach and determine if it is appropriate to grant specific performance, that is, to compel the parties to continue the relationship in terms of their agreement even though one of the parties, on the face of it, no longer wants to continue with the contract. This is opposite to the relief a dismissed employee who seeks reinstatement in terms of the LRA for unfair termination of her/his employment is entitled to. For specific performance, the court will exercise a judicial discretion on whether it is appropriate to grant specific performance whereas in a claim of unfair dismissal, the Commissioner or the Labour Court will only refuse reinstatement if certain specific conditions set out as in section 194 of the LRA are present.

[52] If the party seeks urgent and immediate relief, as the Respondents do, thus foregoing any claim for damages then it must accept, as the Respondents must, the risk of not being granted any relief.

secret profits

JA114/22

RFS Administrator v Samons and Others (JA114/22) [2024] ZALAC 10; [2024] 7 BLLR 722 (LAC) (11 April 2024)

"RFS’s claim for disgorgement of profits

[62] In order to succeed with its claim for disgorgement of profits, RFS was required to establish that there was a fiduciary relationship between it and the respondents; that in breach of that obligation, the respondents placed themselves in a position where their duties and personal interests were in conflict; and that the profits were made in secret and as a consequence of untoward conduct by the respondents."

[63] An employee, when rendering his or her services, must always act in the best interests of the employer and is not entitled to use his or her employment relationship with the employer, without the employer’s permission, to make a profit or earn a commission for his or her own account.[3]

[64] In Phillips v Fieldstone Africa (Pty) Ltd and Another[4], the Supreme Court of Appeal held that the rule is a strict one which allows little room for exceptions and “the defences open to a fiduciary who breaches his trust are very limited: only the free consent of the principal after full disclosure will suffice”.

[65] Although my finding that the respondents were still employed by RFS when they received the payments means that they owed RFS a fiduciary duty, the common cause facts established that those payments were not made secretively. In fact, the evidence showed on a balance of probabilities that the additional payments were made with RFS’s full knowledge and acquiescence.

"The claim for contractual damages

[69] Regarding the claim for contractual damages, counsel for the respondents correctly submitted that RFS failed to establish which terms of their contracts had allegedly been breached."

[71] In any event, in my view, RFS has failed to establish any causal connection between the alleged breach of the contracts and the damages it allegedly suffered as a consequence thereof.

Court does not act as a passive instrumentality that ensures that the rules of the game are observed, it ensures that justice is done

JA101/2022

Le Grange v Visser t-a Skukuza Medical Practice and Another (JA101/2022) [2024] ZALAC 61 (18 November 2024)

Quartermark Investments (Pty) Ltd v Mkhwanazi and Another [2013] ZASCA 150; 2014 (3) SA 96 (SCA) at para 20; Alexkor Ltd and Another v Richtersveld Community and Others [2003] ZACC 18; 2004 (5) SA 460 (CC) at para 44; Naude and Another v Fraser [1998] ZASCA 56; 1998 (4) SA 539 (SCA) at 558B-C.

[15] Is it permissible for a court to posture a case to its liking and decide it on that basis, when the postured case has not been presented to it for adjudication by the parties? Courts should decide controversies submitted to it by the parties. They should generally resist the impulse to decide issues not submitted to them. There are exceptions to this rule, based on the court’s duty. In the exercise of its duty, the Court does not act as a passive instrumentality that ensures that the rules of the game are observed, it ensures that justice is done.[4]

"[16] A court may therefore mero motu raise a point of law provided that it is covered by the pleadings and its consideration would not involve unfairness, and causes no prejudice to the party against whom it is directed and raises no new factual issues. When a court raises a point of law it should give the parties an opportunity to deal with the issue.[5]

[17] The court a quo impermissibly took an admitted fact (dismissal) and fashioned it as a disputed fact in order to decide an issue not submitted to it for adjudication: jurisdiction. This matter was and is not about jurisdiction. I now consider what the court a quo ought to have considered."

unlawful dismissal or suspension

J2025/067794

Vilakazi v Mpumalanga Tourism and Parks Agency and Others (J2025/067794) [2025] ZALCJHB 216 (13 June 2025)

[21] In the Constitutional Court decision in Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA Intervening)[7], the majority of the Constitutional Court contended that it had no jurisdiction to determine the lawfulness of a dismissal. The Court observed that there was no provision in the LRA in terms of which an order could be sought declaring a dismissal unlawful or invalid.

"[22] In Botes v City of Johannesburg Property Company SOC Ltd and others[8] Moshoana J stipulated:

‘I do not agree with a submission that Steenkamp is confined. The principle in Steenkamp can be summarised as follows: where an employee alleges unlawfulness and not unfairness, the Labour Court lacks jurisdiction.’"

[23] Given the above, this court also lacks jurisdiction in respect of an application relating to unlawful suspension. Despite the applicant contending that the claim is based on s77(3) of the BCEA, the averments necessary to sustain such cause of action are lacking. An offer of employment was annexed to the founding affidavit, but no contract of employment has been annexed. No reference is made to specific contractual clauses which have been breached. The applicant makes reference to the disciplinary code and procedure and various legislative prescripts regulating suspension, but on closer scrutiny, the real complaint is, in fact, an unfair suspension.

"[24] In Phahlane v SA Police Services and Others[9], this Court stated the following:

‘[9] Ordinarily, pleadings in a claim of this nature [contractual claim] would assert that term of the contract relied upon, alleged breach of that contract by the employer, record an election to enforce the contract by way of specific performance, and seek consequential relief. The cause of action in the present instance is clearly one of unlawfulness, in the form of an alleged breach of Regulation 9, and no more.’"

"[25] Having considered the authorities, I am of the view that this Court does not have the jurisdiction to entertain an application relating to unlawful suspension.

"

Contitutional law

direct reliance on the Constitution rather than on the provisions of the LRA

J1125/21

Dipela v Limpopo Economic Development Agency (J1125/21) [2024] ZALCJHB 113; (2024) 45 ILJ 1278 (LC) (15 March 2024)

"39] In National Education Health & Allied Workers Union & others v University of SA & another the Labour Court followed the same approach, where the court said:

[22] [I]t is well accepted that direct reliance on the Constitution of the Republic of SA 1996 (the Constitution) is impermissible in the light of the subsidiarity principle as correctly submitted by counsel for the respondents. The subsidiarity principle dictates that, “where legislation has been enacted to give effect to a constitutional right, a litigant must either rely upon that legislation or challenge its constitutionality. It cannot bypass legislation and rely directly upon the right”, unless the “factual situation is complex and the legal position uncertain”. In the present case, the converse is true as the facts are crisp and predicable.

[23] The applicants’ direct reliance on the Constitution rather than on the provisions of the LRA pertaining to unfair labour practice and/or unfair dismissal undermined the principle of subsidiarity.’

[40] It must follow that the applicant’s direct reliance on s 23 of the Constitution is ill-founded and simply not competent. The principle of subsidiarity stands squarely in the way of this part of his case. The applicant is therefore limited to establishing his right to relief by reference to the LRA only, as he has not pleaded nor relied upon any breach of contract.” (Own emphasis)"

When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights

CCT 220/22

Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others (CCT 220/22) [2024] ZACC 8; 2024 (7) BCLR 901 (CC); [2024] 8 BLLR 777 (CC); (2024) 45 ILJ 1723 (CC) (21 May 2024)

"

[66] One component of the right not to be dismissed unfairly is that there must be a valid or fair reason before an employee may be dismissed. When, therefore, the Constitution proclaimed in 1997 in section 23 that every worker was entitled to fair labour practices, an element of that right included the right not to be dismissed unfairly which in turn has two components, the one being every worker’s right not to be dismissed without being afforded an opportunity to be heard and, the other being the worker’s right not be dismissed without a fair reason. These two components of the right not to be dismissed unfairly related, respectively, to procedural fairness and substantive fairness of the right not to be dismissed unfairly."

"

[208] The reason why the interpretation of subsection (18) that the Labour Court has no jurisdiction to adjudicate disputes about procedural fairness of dismissals for operational requirements either in general or those referred to it in terms of section 191 (5)(b)(ii) is that it means that workers/trade unions and employers which have such disputes – which are clearly disputes that can be resolved by the application of law – have nowhere to take such disputes. That interpretation means that workers have a right to procedural fairness but they have nowhere to go in order to enforce that right. Such an interpretation should be avoided if there is another interpretation which can be adopted without doing violence to the language of the statute. In terms of the interpretation advanced in this judgment no worker who has a right to procedural fairness has nowhere to go to enforce or protect that right."

section 33(1) of the Constitution

JR2280/21

Kekana v Stapelberg NO and Others (JR2280/21) [2025] ZALCJHB 178 (19 May 2025)

[10] The arbitration process and the resulting arbitration award both constitute administrative action. Accordingly, section 33(1) of the Constitution requires that the process and the outcome must be lawful, reasonable, and procedurally fair.

16.1.1

Human dignity

CCT 308/23

Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20 (3 October 2025)

"[43] In Dawood,[Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC).] this Court highlighted the interconnectedness of the right to equality with the right to human dignity, and why the right to human dignity is significant. It reasoned:

“Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhumane or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”[17] (Emphasis in original.)"

"[44] In Harksen, this Court said:

“The prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner. However, as L’Heureux-Dubé J acknowledged in Egan v Canada, ‘Dignity [is] a notoriously elusive concept . . . it is clear that [it] cannot, by itself, bear the weight of section 15’s task on its shoulders. It needs precision and elaboration’. It is made clear in paragraph 43 of Hugo that this stage of the enquiry focuses primarily on the experience of the ‘victim’ of discrimination. In the final analysis, it is the impact of the discrimination on the complainant that is the determining factor regarding the unfairness of the discrimination.”[18]"

Litigant may not bypass that legislation and rely directly on the Constitution without challenging the legislation in question

"[32] In De Klerk v Cape Union Mart International (Pty) Ltd,[(2012) 33 ILJ 2887 (LC) at paras 23 - 27.] Steenkamp J, when faced with an application who relied directly on the right to fair labour practices in Section 23 of the Constitution, said the following:

‘As set out above, the applicant relies directly on the right to fair labour practices enshrined in Section 23 of the Constitution.

As the applicant herself acknowledges, national legislation - specifically the LRA - has been enacted to regulate and to give effect to the right to fair labour practices. Where legislation has been enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging the legislation in question.

"

"[37] In Mazibuko and Another v City of Johannesburg and Others[2010 (3) BCLR 239 (CC).] at para 73, the Constitutional Court discussed the principle of constitutional subsidiarity and reiterated that:

‘This Court has repeatedly held that where legislation has been enacted to give effect to a right, a litigant should rely on that legislation in order to give effect to the right or alternatively challenge the legislation as being inconsistent with the Constitution.’"

Dismissal of foreign nationals

JR280/23

GMP Trading Trading CC t/a Taxi Rand Food Market v Commission for Conciliation Mediation and Arbitration and Others (JR280/23) [2025] ZALCJHB 581 (10 December 2025)

8] However, the Constitution of the Republic of South Africa, 1996 (the Constitution), in its preamble and Bill of Rights, affirms that the country belongs to all who live in it. Section 23 guarantees everyone the right to fair labour practices. The unlawful conduct of private groups cannot be permitted to override the constitutional and statutory rights of employees, whether nationals or foreign nationals no matter the threats they make.

Definition

"hire"

Demarcation of "hire"

JR2411/08

National Bargaining Council for the Road Freight Industry v Marcus NO & Others

double jeopardy

JA118/13

Mahlakoane v South African Revenue Service (JA118/13) [2018] ZALAC 1 (25 January 2018)

those that the appellant was charged with in the first disciplinary hearing and those she was charged with in the second hearing, were clearly distinguishable from each other

BMW (SA) (Pty) Ltd v Van der Walt(2000) 21 ILJ 113 (LAC);Branford v Metro Rail Services (Durban) and Others(2003) 24 ILJ 2269 (LAC) and the helpful and insightful discussion of the topic in J Grogan Workplace Law(2007) pp 200-204.

has, as its heart, fairness and this rule or principle simply entails that an employee cannot, generally, be charged again with the same misconduct that he or she was either found guilty or not guilty of. However, there are instances where breaches of this rule or principle can be condoned. The paramount consideration, however, is fairness to both sides

The misconduct was of a very serious nature and involved calculated acts of dishonesty perpetrated by the appellant and Mr Setshedi. In those circumstances, the sanction of dismissal was clearly justified

Pre-emption (preemption)

JR957/2014

Bidair Services (Pty) Ltd v Mbhele and Others (JR957/2014) [2016] ZALCJHB 161; (2016) 37 (ILJ) 1894 (LC) (27 January 2016)

the applicant expressly and unequivocally, unconditionally and unreservedly acquiesced in the Award when it offered Mashishi the alternative positions of baggage handler and cleaner

In NUMSA & others v Fast Freeze (1992) 13 ILJ 963 (LAC) at page 969.

'If a party to a judgment acquiesces therein, either expressly, or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be perempted, ie he cannot thereafter change his mind and note an appeal. Peremtion is an example of the well-known principle that one may not approbate and reprobate, or, to use colloquial expressions, blow hot or cold, or have one's cake and eat it.'

In Dabner v South African Railways & Harbours 1920 AD 583 at para 594.

'The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven.'

The requirements of peremption in review matters can be summarized as follows: i. Where a right to review exists, the party desiring to review loses that right where he or she has acquiesced in the arbitration award unconditionally and without any reservation which acquiescence may be express or implied from conduct. ii. The acquiescence by conduct entails the applicant conveying outwardly to the other party the attitude or stance towards the award. iii. The conduct must be consistent with an intention to abide by the arbitration award and inconsistent with an intention to review it. iv. The test to determine whether the applicant has manifested an outward attitude in relation to the award is objective and thus the subjective state of mind or intention of the applicant is irrelevant. v. The Court in considering whether the award has been perempted will determine whether fairly construed the conduct of the applicant leads to the conclusion of abiding with the award. vi. The onus of proving that an award has been perempted rests with the party seeking to rely on that doctrine. vii. The party seeking to rely on preemption stands to fail if more than one inference may be fairly drawn from the conduct of the other party. This means that the conduct relied upon to evoke preemption has to be unequivocal. The basic requirement to sustain a claim of peremption entails having to show that the acceptance of the outcome of the arbitration award expressly or by conduct was unequivocal. In other words the applicant loses his or her right to challenge on review the arbitration award where the review application is instituted after accepting the outcome of the ward unequivocally and without any reservation.'

Singh v First National Bank and others,

'The concept of peremption is based on the general notion that a litigant has two elections to make: either accept or reject the outcome of the judgment or the arbitration award. As a general rule a party that perempts the arbitration award would not be entitled subsequently to challenge that arbitration award. The basic requirement, however, to sustain a claim of peremption entails having to show that the acceptance of the outcome of the arbitration award expressly or by conduct was unequivocal.'

rationality and reasonableness

J34/2017

Nyamane v MEC: Free State Department of Health (J34/2017) [2018] ZALCJHB 455; [2019] 12 BLLR 1371 (LC) (31 August 2018)

has been confirmed that rationality and reasonableness are conceptually different

Albutt v Center for the Study of Violence and Reconciliation and others 2010 (3) SA 293 (CC).

The Executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are related to the objective sought to be achieved. What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if, objectively speaking, they are not, they fall short of the standard demanded by the Constitution.

Minister of Defence and Military Veterans v Motau 2014 (8) BCLR 930 (CC)

[69] The principle of legality requires that every exercise of public power, including every executive act, be rational. For the exercise of public power to meet this standard it must be rationally related to the purpose for which the power was given

doctrine of waiver

J3093/18

Maluleke v Greater Giyani Local Municipality and Others (J3093/18) [2018] ZALCJHB 456; (2019) 40 ILJ 1061 (LC) (4 October 2018)

Administrator, Orange Free State v Mokopanele and Others (1920) 11 ILJ 963 AD at p 968.

before a party can be held to have surrendered his right, he must know of his right. A similar approach was adopted some four years later in Laws v Rutherford[1924 AD 261] where the Court held that before a waiver can be upheld, it must be demonstrated that the person who is alleged to have waived his or her right knew that he or she was waving her right. It logically follows then that in order to constitute waiver, the relevant conduct of the party alleged to have waived the right must be clearly inconsistent with the exercise of the right alleged to have been waived.

novation

J2898/18

Betterbond (Pty) Ltd and Another v Smit and Another (J2898/18) [2018] ZALCJHB 318 (5 October 2018)

National Health Laboratory Service v Lloyd-Jansen van Vuuren [2015] ZASCA 20; 2015 (5) SA 426 (SCA) at paras 16 to 17.

[15] There is a presumption against novation because it involves a waiver of existing rights. When parties novate they intend to replace a valid contract with another valid contract. In determining whether novation has occurred, the intention to novate is never presumed. In Acacia Mines Ltd v Boshoff,[4] the court held that novation is essentially a question of intention.[16] In Proflour (Pty) Ltd & another v Grindrod Trading (Pty) Ltd t/a Atlas Trading and Shipping & another[5] the court, when determining whether the agreement resulted in a novation, referred to the decision of Electric Process Engraving and Stereo Co v Irwin 1940 AD 220 at 226-227 where the court said: The law on the subject was clearly enunciated as far back as 1880 in the well-known case of Ewers v The Resident Magistrate of Oudtshoorn and Another, (Foord) 32, where DE VILLIERS, C.J, said: The result of the authorities is that the question is one of intention and that, in the absence of any express declaration of the parties, the intention to effect a novation cannot be held to exist except by way of necessary inference from all the circumstances of the case. It follows that in order to establish whether novation has occurred, the court is entitled to have regard to the conduct of the parties, including any evidence relating to their intention.

Locus Standi

J2305/16

National Regulator for Compulsory Specifications v Mazibuko (J2305/16) [2019] ZALCJHB 26 (20 February 2019)

Tulip Diamonds FZE v Minister for Justice and Constitutional Development and Others 2013(10 BCLR 1180 (CC) at para 27

[7] Locus standi means a right to prosecute. Under common law, this doctrine requires that a party must have a personal and direct interest in the matter before the court.[9] In terms of the Constitution[10] (a) anyone acting in their own interest and/or (d) anyone acting in the public interest, may approach a competent court asking for an order, if it is under the belief that its rights have been violated or threatened.

Actual authority and ostensible or apparent authority

JA129/2021

Economic Freedom Fighters v Brightstone Trading 3 CC t/a Gordon Road Spar and Others - Appeal (JA129/2021) [2023] ZALAC 21 (17 August 2023)

"[9] The primary issue for determination in this appeal is whether the doctrine of ostensible authority finds application on the facts of this matter or not. As was made clear by the Constitutional Court in Makate v Vodacom[[2016] ZACC 13; 2016 (4) SA 121 (CC) at paras 46 – 47.] (Makate):

‘[45] Actual authority and ostensible or apparent authority are the opposite sides of the same coin. If an agent wishes to perform a juristic act on behalf of a principal, the agent requires authority to do so, for the act to bind the principal. If the principal had conferred the necessary authority either expressly or impliedly, the agent is taken to have actual authority. But if the principal were to deny that she had conferred the authority, the third party who concluded the juristic act with the agent may plead estoppel in replication. In this context, estoppel is not a form of authority but a rule to the effect that if the principal had conducted herself in a manner that misled the third party into believing that the agent has authority, the principal is precluded from denying that the agent had authority.

[46] The same misrepresentation may also lead to an appearance that the agent has the power to act on behalf of the principal. This is known as ostensible or apparent authority in our law. While this kind of authority may not have been conferred by the principal, it is still taken to be the authority of the agent as it appears to others…

[47] A closer examination of the original statement on apparent authority by Lord Denning, quoted below, reveals that the presence of authority is established if it is shown that a principal by words or conduct has created an appearance that the agent has the power to act on its behalf. Nothing more is required. The means by which that appearance is represented need not be directed at any person. In other words the principal need not make the representation to the person claiming that the agent had apparent authority. The statement indicates the absence of the elements of estoppel. It does not mention prejudice at all…’ [Own emphasis]"

[10] It follows that ostensible authority is established if it can be shown that the conduct of the principal created an impression that the agent had the power to act on its behalf. It is therefore the conduct of the principal that must be examined in order to determine whether it created the appearance that the agent had the authority to bind the principal. The agent does not authorise herself or himself. Rather, authorisation flows from the principal’s conduct.

"[11] Subsequent to the decision in Makate, this Court in Western Platinum Ltd v National Union of Mineworkers obo Mathulatsipi and Others[(2020) 41 ILJ 2617 (LAC) at paras 3 - 4.] held that:

‘[3] … The true position is that ostensible or apparent authority cannot be founded upon a representation made by the agent alone. In order for the principal to be bound by virtue of an estoppel, the representation must be made by the principal itself…

"

[12] The Labour Court in Maye Serobe (Pty) Ltd v Labour Equity General Workers Union of South Africa obo Members and others[[2015] JOL 33143 (LC) at para 30.], with reference to the decision of the Supreme Court of Appeal in Northern Metropolitan Local Council v Company Unique Finance (Pty) Ltd and others,[[2012] 3 All SA 498 (SCA).] found that to hold a party liable on the basis of ostensible authority, there must be shown to have been (a) a representation by words or conduct; (b) made by the appellant and not merely by the agents that they had authority to act as they did; (c) in a form such that the appellant should reasonably have expected that outsiders would act on the strength of it; (d) with reliance placed by the respondents on such representation; (e) which reliance was reasonable; and (f) caused consequent prejudice to the respondents.

[15] For the doctrine of ostensible authority to find application, the Labour Court was required to find that the EFF, as a voluntary association, had created an appearance or representation by words or conduct that Mr Sono and/or his other EFF members involved in the protest action had authority to act as they did. There is no evidence of such appearance or representation having been made by the EFF,

doctrine of mootness

JR827/2022

Motha v Commission For Conciliation Mediation And Arbitration and Others (JR827/2022) [2024] ZALCJHB 320 (18 July 2024)

"[21] The Constitutional Court dealt with the doctrine of mootness in Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation and Exploitation SOC Ltd and Another[] and held as follows:

‘[47] Mootness is when a matter “no longer presents an existing or live controversy”. The doctrine is based on the notion that judicial resources ought to be utilised efficiently and should not be dedicated to advisory opinions or abstract propositions of law, and that courts should avoid deciding matters that are “abstract, academic or hypothetical”.

[48] This court has held that it is axiomatic that “mootness is not an absolute bar to the justiciability of an issue… [and that this] Court may entertain an appeal even if moot, where the interests of justice so require”. This Court has “discretionary powers to entertain even admittedly moot issues”.

…

[50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include –

(a) whether any order which it may make will have some practical effect either on the parties or on others;

(b) the nature and extent of the practical effect that any possible order might have;

(c) the importance of the issue;

(d) the complexity of the issue;

(e) the fullness or otherwise of the arguments advanced; and

(f) resolving the disputes between different courts.’"

discretion

JA98/22

Moolman v Commission For Conciliation, Mediation and Arbitration and Others (JA98/22) [2024] ZALCJHB 339 (22 August 2024)

"

[30] The first category of discretion, which is sometimes referred to as discretion in a true sense, discretion in a strict sense or unfettered discretion, is characterised by the repository's power to choose between various permissible courses or options when deciding on an issue or exercising power.G106:O106"

[31] It is generally accepted that where the repository of power has performed his or her function of choosing among the available options or courses, the appeal court would not be entitled to interfere with such an exercise of discretion by substituting that option with its preferred option. In other words, in the court below or in the case of a review of a ruling in mediation or arbitration proceedings, the commissioner is free to decide which of the available and permissible options or courses he or she would adopt.

"[32] The definition of discretion, in the true sense, was formulated as follows in Media Workers Association of South Africa and Others v Press Corporation of SA Ltd [7] and accepted by the Constitutional Court in Trencon Construction:

“The essence of a discretion in this narrower sense (the true sense) is that, if the repository of the power follows any one of the available courses, he would be acting within his powers, and his exercise of power could not be set aside merely because a Court would have preferred him to have followed a different course among those available to him.”"

33] This means that a discretion, in the true sense, is exceptionally appealable. In other words, the appeal court would only be justified to interfere with the exercise of power by the lower Court if it is satisfied that the discretion was exercised (1) capriciously or (2) upon wrong principles, or (3) the discretion was not exercised in an unbiased manner.[8]

"[34] In Naylor and Another v Janson[9] the Supreme Court of Appeal (SCA) held that:

“Where the law has given a judge an unfettered discretion, it is not for this court (the SCA) to lay down rules which, whilst purporting to guide the judge, will only have the effect of fettering the discretion. If, therefore, there are factors which the trial court, in the exercise of its discretion, can and legitimately does decide to take into account so as to reach a different result, a court on appeal is not entitled to interfere ─ even although it may or even probably would have given a different order.”

[35] The Constitutional Court made the same point in Florence v Government of the Republic of South Africa[10] (CC) as follows:

“Where a court is granted wide decision-making powers with a number of options or variables, an appellate court may not interfere unless it is clear that the choice the court has preferred is at odds with the law. If the impugned decision lies within a range of permissible decisions, an appeal court may not interfere only because it favours a different option within the range. This principle of appellate restraint preserves judicial comity. It fosters certainty in the application of the law and favours finality in judicial decision-making.”"

"[37] In contrast to the standard of appealability in the first category, the restrictions applicable in that category do not apply to the second category, discretion in the loose sense, in that an appeal Court has authority, in general, to substitute the decision of the lower court with its own if it concludes that the discretion was wrongly exercised. The discretion in the loose sense is sometimes referred to as discretion in the narrow sense. In M R v N R[12] discretion in the loose sense is described as follows:

“24 Where a discretion in a loose sense applies, an appellate court is equally capable of determining the matter in the same manner as the court of first instance and can therefore substitute its own exercise of the discretion if it considers that the order of the first instance court was wrong.”"

[40] The general rule of labour law practice, which finds application in both civil and criminal proceedings, is that the Labour Court is discouraged from reviewing any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the CCMA or bargaining councils before the main issue in dispute is finally resolved. The exception to the general rule is that the Labour Court may review such a decision or ruling if it deems it just and equitable to do so.

"43] It should be noted that the legislature did not introduce a total prohibition on reviews of interlocutory rulings in arbitration and mediation proceedings but rather allowed for an exception to the general rule. As a matter of principle, interference in uncompleted arbitration proceedings through review is only permissible in exceptional circumstances. The requirement to intervene in exceptional circumstances is underpinned by the legislative policy requiring speedy finalisation of labour disputes, which dictates that the court should not interfere with incomplete proceedings but allow a hearing to run its course. This underscores the importance of the Court's role in ensuring a fair and just resolution, which should strike a balance between the interests of all parties involved. The correct approach to adopt in this regard was set out in South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others[16] as follows:

“A case must be truly exceptional to warrant a departure from the norm that a review is appropriate only once the dispute has been finally determined in a completed arbitration hearing. This is consistent with the statutory purpose of expeditious dispute resolution, which the LRA seeks to achieve.”"

"[47] In State Information Technology Agency (SITA) v Commission for Conciliation Mediation and Arbitration,[19] the court correctly intervened when the commissioner erred in ordering the discovery of a privileged document. The harm that the other party would have suffered had the court allowed the ruling to stand and the privileged documents to be disclosed is that damage would not be adequately addressed upon the conclusion of the main proceedings. The court intervened earlier because the document which the applicant sought to disclose was legally privileged. The court reviewed and set aside the ruling and declared that the applicant was not compelled to disclose the copy of the document required by the respondents.

[48] Similarly, the Labour Court in South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Mediation Conciliation and Arbitration and Others[20] the Labour Court intervened earlier on the ground that the document required by the respondent was patently irrelevant to the dispute."

calculation of "days" where not defined in act (Employment Equity Act)

J1330/22

Ndou and Others v Colefax Trading (Pty) Ltd and Others (J1330/22) [2024] ZALCJHB 454 (20 November 2024)

[11] Because a “day” is not defined in the EEA, submits Mr De Villiers, s 4 of the Interpretation Act 33 of 1957 should prevail by giving “day” its ordinary meaning of a calendar day. The appellants, therefore, should have filed their appeal within 14 ordinary days. Failure to do so, must result in the dismissal of their appeal.

"""[21] The appellants were compelled to file their notice of appeal within 14 ordinary days, as determined by the Interpretation Act, of the award. This they did not do.

"""

"[21] The appellants were compelled to file their notice of appeal within 14 ordinary days, as determined by the Interpretation Act, of the award. This they did not do.

"

basic requirements of natural justice

121530/2024

Khan v South African Police Service and Others (121530/2024) [2024] ZALCJHB 488 (4 December 2024)

49] The respondent has submitted that the expeditious disciplinary process meets the three basic requirements of natural justice in the conduct of disciplinary hearings in that the employee should know the nature of the accusation against him/her; the employee should be given an opportunity to state his/her case and that the tribunal should act in good faith. I do not differ with this opinion, however, there are circumstances where the process can result in injustice and prejudice to one of the parties.

Information

Rely on LRA not PAIA for access to information

D38/08

National Teachers Union v The Superintendent General: Department of Education & Culture Kwazulu-Natal

PAJA

even if termination took place by organ of state exercising public power; not administrative action; other remedies available

138/08

Kriel v The Legal Aid Board & Others

PAJA

Other case law cited

Chirwa v Transnet Ltd and others 2008 (4) SA 367 (CC)

[t]he mere fact that Transnet is an organ of State which exercises public power does not transform its conduct in terminating the applicants employment contract into administrative action.

138/08

Kriel v The Legal Aid Board & Others

Letter of demand

J2237/16

Incledon (Pty) Limited and Others v Slabbert and Others (J2237/16) [2017] ZALCJHB 164 (5 April 2017)

King Williams Town v Border Alliance Taxi Association 2002 (4) SA 152 (ECD)

[11] One of the fundamental rules of fairness that underlies the courts rules of procedure and evidence is that litigants should be warned in advance of points being taken against them. The very purpose of a letter of demand is to avoid litigation, amongst other things, by affording a party the opportunity to respond to all of the material allegations articulated in the demand....This is not to suggest that a response to a letter of demand ought to assume the particularity of a pleading what is required is at least that the material allegations made be addressed with sufficient particularity to enable an applicant to decide whether to take the next step of initiating litigation.

Interest dispute

Dispute about interest not rights

Refusal of department to implement salary improvements as no funds had been allocated for this purpose

JA32/09

Public Servants Association v National Prosecuting Authority

Territorial jurisdiction of the CCM

JA45/14

Monare v South African Tourism and Others

there was no jurisdictional dispute before the CCMA at any stage....office does not have a separate corporate personality. It is part and parcel of the first respondent, which is one undertaking. The fact that the office was in London does not make it a different undertaking.

Genrec Mei criterion held: When all the facts of this matter are considered and the question is asked as to where the undertaking was carried on in which the respondent worked, the answer would be an easy one, namely Malawi!

Astral, the court a quo in the present case reasoned and concluded as follows: In the present instance, there is no such residual nexus with the South African office. The first respondent may be South African and they may have worked for an entity whose head office is located in South Africa but he was recruited overseas, his employment contract was concluded overseas, he was obliged to work overseas for an agreed fixed term with no right to return to South Africa and continue employment there on conclusion of that fixed term and he performed services only in the United Kingdom. He committed the acts of misconduct that resulted in his dismissal in the United Kingdom, his disciplinary hearing was held there, and he was given notice of dismissal there. In my view, in these circumstances the LRA has no territorial application. It follows that the first respondent had no right to refer his dispute to the CCMA and the CCMA had no right to entertain it.

Independent Police Investigative Directorate and Robert McBride v The Minister of Police Case number 6588/2015.

Right vs interest dispute

JR741/16

Emfuleni Local Municipality v South African Local Government Bargaining Council and Others (JR741/16) [2019] ZALCJHB 367 (11 November 2019)

They seek to remain in the same jobs, with the same responsibilities, but to be graded at a higher level, with the financial rewards that grading at a higher level will bring. In Polokwane Local Municipality v SALGBC & others [2008] ZALC 29; [2008] 8 BLLR 783 (LC), Molahlehi J regarded a dispute where an employee sought to have her post upgraded as a dispute of interest. In the absence of any right to be appointed to the higher position or to have the post upgraded, the dispute was not arbitrable (at paragraph 26).

In Mashegoane v University of the North [2007] ZALC 53; [1998] 1 BLLR 73 (LC), a dispute that concerned the refusal by the senate of the university to appoint a lecturer to the position of dean of the faculty, where the court considered that the appointment to the post of dean would be one that would considerably elevate the employees status and encompass a greater degree of responsibility. On this basis, the court held that the dispute properly concerned a promotion. In the present instance, the employees do not seek appointment to another post, and certainly not one that confers greater responsibility or status.

The employees may have a claim under the Employment Equity Act on the basis of equal pay for the same or similar work, or work of equal value. But that is not the claim that they referred to arbitration. Alternatively, the applicants may have the election to press their demand by resorting to the exercise of the right to strike. But this is not a matter that I need decide.

Mutual interest vs rights issue

P 28/2010

Department of Correctional Services v General Public Service Bargaining Council

J 3424 / 18

J & L Lining (Pty) Ltd v National Union of Metalworkers of South Africa and Others (J 3424 / 18) [2018] ZALCJHB 409; (2019) 40 ILJ 1289 (LC) (10 December 2018)

Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members and Others

" the phrase 'any matter of mutual interest' defies precise definition. The phrase is couched in very wide terms. According to Grogan, the phrase is extremely wide, 'potentially encompassing issues of employment in general, not merely matters pertaining to wages and conditions of service. Grogan concludes, correctly in my view, that 'the best one can say, therefore, is that any matter which affects employees in the workplace, however indirectly, falls within the scope of the phrase ""matters of mutual interest"" and may accordingly form the subject matter of strike action'"

JS89/18

Jabu and Others v Gauteng Department Of Economic Development (JS89/18) [2024] ZALCJHB 93 (1 March 2024)

"33. In an analogous case, Gauteng Provinsiale Administrasie v Scheepers[12] the employees were administration clerks who were performing the duties of network controllers. Network controllers earned higher salaries and received better benefits. The employees sought the remuneration packages applicable to network controllers. The issue came before the Labour Appeal Court, with Conradie JA commenting at paragraph 8,

“Generally speaking a dispute relating to proposals for the creation of new rights…is a dispute of mutual interest. Such disputes are ordinarily resolved by collective bargaining”.[(2000) 21 ILJ 1305 (LAC)]"

35. Even if I am wrong on the jurisdiction point, I am unpersuaded that the Applicants have made out a case for the relief they seek. I say so because the merits of their claim for arrear payments for remuneration at level 9 for the years 2012 – 2017 is weak for three reasons: firstly they consented to a horizontal / lateral move remaining at level 5; secondly they failed to be appointed into the post when it was advertised, they simply did not have the qualifications, and there were stronger candidates in the arena; and thirdly they did not perform the more complex tasks required such as designing training materials or conducting research – they were not carrying out all the duties expected of an incumbent in the level 9 post.

34. Arguably though the Applicants could have characterised their dispute as one about an Unfair Labour Practice relating to Promotions, in terms of section 186 (2)(a) of the Labour Relations Act, 1995 and could have referred the matter to the GPSSBC for arbitration. Arguably too, the Applicants could have pursued an unfair discrimination claim under section 6(4) of the Employment Equity Act, 1998 at the CCMA. (Similar pay for work of similar value). This is not to suggest that such claims would have had good prospects, but simply to point out at a notional level that the facts could have given rise to different characterisations, and dispute resolution fora and processes.

Nature of dispute

poor work performance and misconduct

vast difference

JR2024/08

Rema Tip Top (Pty) Ltd v Osman NO and Others

Right vs interest dispute

JR741/16

Emfuleni Local Municipality v South African Local Government Bargaining Council and Others (JR741/16) [2019] ZALCJHB 367 (11 November 2019)

They seek to remain in the same jobs, with the same responsibilities, but to be graded at a higher level, with the financial rewards that grading at a higher level will bring. In Polokwane Local Municipality v SALGBC & others [2008] ZALC 29; [2008] 8 BLLR 783 (LC), Molahlehi J regarded a dispute where an employee sought to have her post upgraded as a dispute of interest. In the absence of any right to be appointed to the higher position or to have the post upgraded, the dispute was not arbitrable (at paragraph 26).

In Mashegoane v University of the North [2007] ZALC 53; [1998] 1 BLLR 73 (LC), a dispute that concerned the refusal by the senate of the university to appoint a lecturer to the position of dean of the faculty, where the court considered that the appointment to the post of dean would be one that would considerably elevate the employees status and encompass a greater degree of responsibility. On this basis, the court held that the dispute properly concerned a promotion. In the present instance, the employees do not seek appointment to another post, and certainly not one that confers greater responsibility or status.

The employees may have a claim under the Employment Equity Act on the basis of equal pay for the same or similar work, or work of equal value. But that is not the claim that they referred to arbitration. Alternatively, the applicants may have the election to press their demand by resorting to the exercise of the right to strike. But this is not a matter that I need decide.

Parity principle

Appeal-reinstate, Arbitrate-dismissed

JR2041/07

Royal Canin South Africa (Pty) Ltd v Mbileni NO & Others

lis alibi pendens

JR483/14

Shongwe and Others v City of Johannesburg Metropolitan Municipality (JR483/14) [2016] ZALCJHB 67 (25 February 2016)

Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA)

As its name indicates, a plea of lis alibi pendens is based on the proposition that the dispute (lis) between the parties is being litigated elsewhere and therefore it is inappropriate for it to be litigated in the court in which the plea is raised. The policy underpinning it is that there should be a limit to the extent to which the same issue is litigated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk that they may reach differing conclusions. It is a plea that has been recognised by our courts for over 100 years. And, the plea bears an affinity to the plea of res judicata, which is directed at achieving the same policy goals. Their close relationship is evident from the following passage fromVoet44.2.7:2'Exception of lis pendens also requires same persons, thing and cause.-The exception that a suit is already pending is quite akin to the exception of res judicata, inasmuch as, when a suit is pending before another judge, this exception is granted just so often as, and in all those cases in which after a suit has been ended there is room for the exception of res judicata in terms of what has already been said. Thus the suit must already have started to be mooted before another judge between the same persons, about the same matter and on the same cause, since the place where a judicial proceeding has once been taken up is also the place where it ought to be given its ending.'

In our common law the requirements for res iudicata are threefold: (a) same parties, (b) same cause of action, (c) same relief. The recognition of what has become known as issue estoppel did not dispense with this threefold requirement. But our courts have come to realise that rigid adherence to the requirements referred to in (b) and (c) may result in defeating the whole purpose of res iudicata. That purpose, so it has been stated, is to prevent the repetition of lawsuits between the same parties, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions by different courts on the same issue (see eg Evins v Shield Insurance Co Ltd1980 (2) SA 814 (A) at 835G). Issue estoppel therefore allows a court to dispense with the two requirements of same cause of action and same relief, where the same issue has been finally decided in previous litigation between the same parties

Protected disclosure act

JS595/05

Sekgobela v State Information Technology Agency (Pty) Ltd

Whistleblowers

E/r duty to begin, exclude sec 5

D286/10

Randles v Chemical Specialities Ltd

s 15 of the Protected Disclosures Act 26 of 2000.

D286/10

Randles v Chemical Specialities Ltd

disclosed contents of legal opinion to unions benefits officer

Protected

JS 575/09

Arbuthnot v South African Municipal Workers Union Provident Fund

Test remained whether the person making disclosure was acting in good faith and whether that person reasonably believed that there was an impropriety.

To Public prosecutor

Was disclosure, was protected and suffered occupational detriment

JA53/08

State Information Technology Agency (Pty) Ltd v Sekgobela

Member of parliament

158(2)(a)

C367/06

Charlton v Parliament of RSA

Interdict

Prima facie right: Whether Disclosure made bona fide , Whether disclosures protected , Whether pending disciplinary linked to disclosure; Balance of convenience; Absence of alternative remedy ; occupational detriment

C7/03

Grieve v Denel (Pty) Ltd

Retrenched

. The employer referred to Sikhosana & Others v Sasol Synthetic Fuels ((2000)21 ILJ; [2002]1 BLLR 95(LAC)) and submitted that fair retrenchment did not entail a mechanical compliance with s 189 of the Act

reasonable inference that could be drawn was that Ms Pedzinsky was dismissed because of her protected disclosure. Held therefore that the decision to retrench was a sham and the dismissal automatically unfair

JS396/04

Pedzinski; A v Andisa Securities (Pty) Ltd (formerly SCMB Securities (Pty) Ltd

s 4(2)(a) of the Protected Disclosures Act 26 of 2000

Disclosure, it was not necessary for the applicant to show that there was an actual breach of a legal obligation, merely that he had reason to believe that the information showed or tended

acted in good faith and had a reasonable belief that much of the information was substantially true

JS875/09

Malan v Johannesburg Philharmonic Orchestra

Employer

defined in terms of section 1 of LRA

JA61/09

Radebe and Another v Premier, Free State Province and Others

disclosure

protection

C579/07

Theron v Minister of Correctional Services & Another

Interdict, would suffer irreparable harm if the disciplinary enquiry proceeded and in any event she had an alternative remedy located in s 4(2)(b) of the Act.

C 418/2013

Van Alphen v Rheinmetall Denel Munition (Pty) Ltd

General requirements for a disclosure to be protected:

General requirements for a disclosure to be protected: there had to be a disclosure; the disclosure had to be made in good faith; the disclosure had to concern an impropriety, either a criminal offence or that a person had failed, was failing or was likely to fail to comply with any legal obligation to which that person was subject; it had to be reasonable for the employee to make the disclosure; and, that one or more of the conditions referred to in s 9(2) had to be satisfied. But, late or fractured payments to employees or service providers were not a serious impropriety. Dismissed.

(JA 61/11) [2013] ZALAC 24

Malan v Johannesburg Philharmonic Orchestra

Grant order suspending enquiry to prevent greater prejudice to employee than department. Established a prima facie right that an occupational detriment had been committed. Should the disciplinary charges go ahead before the PDA dispute was adjudicated was greater than the financial prejudice to the department of keeping the applicant on paid suspension.

(C18/2014) [2014] ZALCCT 6

Motingoe v Head of Department of Roads and Public Works, Northern Cape and Others

Placing him in an unproductive and meaningless post, meant that other staff would have understood him to have been sidelined and respect for him would have diminished, as he had picked up from remarks to the effect that he was being paid for doing nothing. Compensation in the amount of R100,000.

(JS1043/12) [2014] ZALCJHB 131

Solidarity obo Roos v South African Police Service and Others

State of toilets at large academic hospital could not form the basis of a protected disclosure. The Internet was, unlike the press, not subject to editorial moderation. Disclosure could not be said to have been reasonable.

(C16/2012) [2014] ZALCCT 16

Beaurain v Martin NO and Others

The court proposed that a useful and practical approach to determine this was to consider factors such as: (a) the timing of the disciplinary enquiry; (b) the reasons given by the employer for taking the disciplinary steps; (c) the nature of the disclosure; and (d) the persons responsible within the employer for taking the decisions to institute charges.

(J620/14) [2014] ZALCJHB 122

IMATU and Another v City of Matlosana Local Municipality and Another

The court rejected the employers contention that the information was of a sensitive nature and that this is itself rendered the employment relationship intolerable. Would seriously erode the very protection that the legal framework endeavoured to grant to whistleblowers. Disclosure made by the employee was made in good faith and fell into the category of protected disclosure.

(JA71/12) [2014] ZALAC 32

Potgieter v Tubatse Ferrochrome and Others

tends to show"

JS287/2012

Dorey v TSB Sugar RSA Ltd (JS287/2012) [2017] ZALCJHB 168 (3 May 2017)

Radebe and Another v Premier, Free State Province and Others [2012] (5) SA 100 (LAC); [2012] 33 ILJ 2353 (LAC); [2012] BLLR 1246 (LAC) at para 33

The phrase tends to show in section 1 cannot be equated to show. Had the legislature intended the approach propounded by the Labour Court, it would have used only the term show. The phrase tends to show properly interpreted means that the information in the disclosure conveyed a suggestion of an impropriety or conduct that may have taken place or might be continuing. I do not understand the provision itself to include a requirement that what is conveyed must be factually accurate or be the truth. If the employee believes that the information is true it would fortify the reasonableness of his belief from which, in turn, his bona fides can be inferred. (Footnote omitted.)

[35]In line with RadebeI need not concern myself with the truthfulness and or accuracy of the allegations.

City of Tshwane Metropolitan Municipality v Engineering Council of SA and Another(2010) 31 ILJ 322 (SCA) at para 42.

Having concluded that the applicant has made a disclosure, I need to determine whether such a disclosure was bona fide or not.

Kroukam v SA Airlink (Pty) Ltd(2005) 26 ILJ 2153 (LAC) at paras 27-8.

Relief

Insofar as the relief is concerned, the appellant has argued that this was excessive. I do not agree. The PDA is a piece of legislation that addresses a critical area in the sphere of public finance and accountability. It is a piece of legislation that addresses the important constitutional objectives of clean government and service delivery. Public entities have to be scrutinized in terms of their dealings to ensure that they deliver to the general public in terms of the mandate.

[45]Accordingly, I come to the conclusion that it will be just and equitable to award compensation equivalent to 24 months remuneration

JS274/16

Lephoto v National Institute for Humanities and Social Sciences and Another (JS274/16) [2017] ZALCJHB 442 (22 November 2017)

3. The first respondent, the National Institute for Humanities and Social Sciences, is ordered to pay the applicant 12 months compensation, an equivalent of 12 months’ salary subject to statutory deductions payable within 30 days from the date of this order.

Tshishonga v Minister of Justice and Constitutional Development and Another 2007 (4) SA 135 (LC); [2007] 28 ILJ 195 (LC) at para 176.

[176] The PDA is conceived as a four-staged 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 to any occupational detriment and lastly, what the remedy should be award for such treatment. It is not an enquiry into wrongdoing 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 whistle-blower is real.

Malan v Johannesburg Philharmonic Orchestra (JA61/11) [2013] ZALAC 24 (12 September 2013 at para 29.

There must be a disclosure; the disclosure must be made in good faith; the disclosure must concern an impropriety, either a criminal offence or that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; it must be reasonable for the employee to make the disclosure; and, that one or more of the conditions referred to in subsection 9(2) must be satisfied for present purposes, any one of them is sufficient. Where the disclosure is made to the employer subsection (c) which is relevant for the present purposes provides that the employee making the disclosure must have previously made a disclosure of substantially the same nature to his or her employer.

CWU v Mobile Telephone Networks (Pty) Ltd (2003) 24 ILJ 1677 (LC) at para 21.

State Information Technology (2012) 10 BLLR 1001 (LAC) at para 32.

for a disclosure to qualify for protection it must show that the employee reasonably believed that the information disclosed and any allegation contained in it was substantially true.

Radebe and Another v Premier, Free State Province and Others (2012) 33 ILJ 2353 (LAC) at 2366 para 20.

[20] Broadly, s 1 contains two qualifying requirements for a disclosure that will be regarded as protected in terms of the PDA. These are that the employee making the disclosure must have reason to believe that the information disclosed shows or tends to show that an impropriety has been committed or continues to be perpetrated. These are the general requirements found in s 1 in terms of which all disclosures have to comply in addition to the specific requirements found in the particular section within which the disclosure is sought to be located....[18] An occupational detriment is defined in section 1 by reference to a number of instances that could occur in the employment environment arising from the making of a disclosure by an employee. For purposes of this judgment, the following instances are relevant: subjecting an employee to any disciplinary action; dismissing, suspending, demoting, harassing or intimidating an employee. Furthermore, the wrongdoing targeted by the PDA is referred to as an impropriety. This is defined as any conduct falling within any of the seven instances of wrongdoing . the so-called seven types of improprieties.

State Information Technology Agency (Pty) Ltd v Sekgobela (2012) 33 ILJ 2374 (LAC) at 2384 para 28.

[28] What has to be determined is whether the disclosure was made in good faith by the respondent, that he reasonably believed that the wrongdoing he disclosed fell within matters which, in the ordinary course, are dealt with by the appellant and that the information he disclosed is substantially true. An affirmative answer to these questions means that disclosure was protected....[15] In cases where it is alleged that the dismissal is automatically unfair, the situation is not much different save that the evidentiary burden to produce evidence that is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place rests on the applicant [employee]. If the applicant succeeds in discharging his evidentiary burden then the burden to show that the reason for the dismissal did not fall within the circumstances envisaged by s 187(1) of the LRA rests with the {employer]. It is evident therefore that a mere allegation that there is a dismissal is not sufficient but the employee must produce evidence that is sufficient to raise a credible possibility that there was an automatically unfair dismissal.

good faith

JS557/12

Ndzuta v South African Police Services and Another (JS557/12) [2017] ZALCJHB 68 (23 February 2017)

Employee alleging unfair discrimination and occupational detriments as reasons for his dismissal ; evidence showing that employees allegation unfounded and based on hearsay; employee failing to prove that he suffered either occupational detriment or unfair discrimination. Evidence proving that employee unhappy to be managed by people less qualified than him. Employee failing to establish a causal link between the alleged disclosure and his dismissal. Employees claim dismissed.

Radebe and Another v Premier, Free State Province and Others (2012) 33 2353 (LAC) at paras 35 and 36.

[35] There is further, in my view, an overlap when determining whether the employee making the disclosure was acting in good faith and further whether he had the requisite reason to believe when making a disclosure that improprieties had been committed or were continuing. Honesty plays a pivotal role in both situations. Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self-advancement or revenge, for instance, would lead to a conclusion of lack of good faith. A clear indicator of lack of good faith is also where disingenuity is demonstrated by reliance on fabricated information or information known by the employee to be false. The absence of these elements on the other hand is a strong indicator that the employee honestly made the disclosure wishing for action to be taken to investigate it.[36] Simply stated if an employee discloses information in good faith and reasonably believes that the information disclosed shows or tends to show that improprieties were committed or continue to be committed then the disclosure is one that is protected. The requirement of reason to believe 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 and opinion would, depending on its reliability, be reasonable. A mistaken belief or one that is factually inaccurate can nevertheless be reasonable, unless the information is so inaccurate that no one can have any interest in its disclosure. (See also the statement in Babula (supra) at para 41 where it was held that: Darnton seems to me clear authority for the proposition that whilst an employee claiming the protection of ERA 1996, section 43(1) must have a reasonable belief that the information he is disclosing tends to show one of more of the matters listed in section 43B(1)(a) to (f), there is no requirement upon him to demonstrate that his belief is factually correct; or, to put the matter slightly differently, his belief may still be reasonable even though it turns out to be wrong.) If the primary or exclusive purpose of reporting is to embarrass or harass the employer the reasonableness of the employee's belief is also questionable. (Footnotes omitted)

Abuse of act by employee

JA36/2018

National Institute for the Humanities and Social Sciences (NIHSS) v Lephoto and Another (JA36/2018) [2019] ZALAC 65; [2020] 3 BLLR 257 (LAC) (12 September 2019)

[6]...was a clear nexus between this disclosure and his dismissal which had resulted in an occupational detriment as defined in the PDA. ..[32]...first question that has to be answered in the affirmative in order for respondents case to be justified is whether there was a protected disclosure as defined in the PDA...[34] The key question in the present case is whether respondent had a reason to believe

[49]...However, the PDA was not enacted to encourage employees, whose own conduct renders them liable to dismissal, to exploit this legislation in a desperate attempt to fend of the inevitable consequences of their own actions or performance. That the PDA should be interpreted generously in order to vindicate its purpose is one thing, but in a case such as the present, where the facts are overwhelmingly in support of the conclusion that its provisions were abused, the court should have no truck with an attempt to invoke its protection.

good faith

JS955/201

Ward v Oraclemed Health (Pty) Ltd (JS955/2016) [2018] ZALCJHB 309 (2 October 2018)

Radebe and Another v Premier Free State Province and Others [2012] 12 BLLR 1246 (LAC).

There is further, in my view, an overlap when determining whether the employee making the disclosure was acting in good faith and further whether he had the requisite reason to believe when making a disclosure that improprieties had been committed or were continuing. Honesty plays a pivotal role in both situations. Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self-advancement or revenge, for instance, would lead to a conclusion of lack of good faith.[3](Own emphasis)

[20] During cross-examination it transpired that despite all the concerns that the applicant had, she was aware of the internal grievance procedure to be followed but she opted not to use one,

Kroukam v SA Airlink (Pty) Limited (2005) 12 BLLR 1172 (LAC), at para 28.

an evidentiary burden lies with such dismissed employee to show that there is a legitimate claim for automatically unfair dismissal

Govan v Skidmore[1952] 1 All SA 54 (N)

[27] In this matter, I must take into account that the test is one of balance of probabilities, in that a party whose version of facts appears to be more probable is entitled to an order, and that if there is an issue that has to be decided based on an inference, a court has to select a conclusion which seems to be the more natural, or plausible, conclusion from among several considerable ones, even though that conclusion be not the only reasonable one

SA Municipality Workers Union National Fund v Arbuthnot (2014) 25 ILJ 2434 (LAC), at para 15.

the respondent says the applicant acted mala fide as she presented the information to the FSB being motivated by being vindictive. I have to remind myself that the issue is about the reasonableness of the belief, not of the reasonableness of the information disclosed.

Mbethe v United Manganese of Kalahari (Pty) Limited (503/2016) [2017] ZASCA 67; 2017 (6) SA 409 (SCA) (30 May 2017).

good faith based on the state of mind using inference said,[20] In our law it would not be a matter of mere assertion by an applicant that he possesses the requirement of good faith. Although the test for good faith is subjective, relating as it does to the state of mind of an applicant, it is nevertheless subject to an objective control. The state of mind of an applicant has to be determined by drawing inferences from the objective facts, as revealed by the evidence.[21] The appellant states that he has acted in good faith in order to protect the interests of the respondent. The Respondent denies this and alleges that the appellant lacks an honest purpose in seeking leave to institute a derivative action in the name and on behalf of, the respondent. The dispute is whether the appellant has misrepresented his state of mind.

Communication Workers Union v Mobile Telephone Network (Pty) Ltd and another ZALC 59 (26 May 2003) (2003) ,24 ILJ 1670 (LC) (MTN) at para 21, where Van Niekerk AJ of this Court said: The disclosure must also be made in good faith. An employee who deliberately sets out to embarrass or harass an employer is not likely to satisfy the requirements of good faith. (Own emphasis)

However, as I have noted, the protection extended to employees by the PDA is not unconditional. The PDA sets the parameters of what constitutes a protected disclosure, as well as the manner of permissible disclosure by workers. The definition of disclosure clearly contemplates that it is only the disclosure of information that either discloses or tends to disclose forms of criminal or other misconduct that is the subject of protection under the PDA. The disclosure must also be made in good faith. An employee who deliberately sets out to embarrass or harass an employer is not likely to satisfy the requirement of good faith. It does not necessarily follow though that good faith requires proof of the validity of any concerns or suspicions that an employee may have, or even a belief that any wrongdoing has actually occurred. The purpose of the PDA would be undermined if genuine concerns or suspicions were not protected in an employment context even if they later proved to be unfounded. There is no doubt why disclosures made in general circumstances require in addition to good faith a reasonable belief in the substantial truth of the allegation. However more extensive the rights established by the PDA might be in the employment context, I do not consider that it was intended to protect what amounts to mere rumours or conjecture.

SA Municipality Workers Union National Fund v Arbuthnot (2014) 35 ILJ 2434 (LAC)

Good faith, in my view, entails in part that there should be no ulterior motive, revenge or malice in making the disclosure. It is common cause that the respondent did not claim protected disclosure at the disciplinary hearing and that her reliance on protected disclosure only surfaced for the first time during the proceedings before the Labour Court. The inference that the appellant wants this Court to draw is that the reliance on the protected nature of the disclosure was more of an afterthought, in an attempt to downplay the tendency of the respondent to disregard the employers instruction. [21]And in addition, it is also a requirement that the party making the disclosure intends thereby for the wrong disclosed to be remedied, or addressed, in some way.[22]

nexus

J1485/2019

Gallocher v Social Housing Regulatory Authority and Another (J1485/2019) [2019] ZALCJHB 162; (2019) 40 ILJ 2723 (LC) (3 July 2019)

Matlosana Local Municipality supra

Thus, what I am required to establish is the 'proximate cause' of the disciplinary enquiry. It is clear that a disciplinary enquiry against an employee need not necessarily be the direct result of a disclosure. I propose that a useful and practical approach is to consider factors such as (i) the timing of the disciplinary enquiry; (ii) the reasons given by the employer for taking the disciplinary steps; (iii) the nature of the disclosure; (iv) and the persons responsible within the employer for taking the decisions to institute charges.

should not cover personal grievances made against senior employees

J1914/19

Luthuli v South African National Blood Service and Another (J1914/19) [2019] ZALCJHB 296 (30 October 2019)

[26.18]...The conduct the applicant complained of relates in essence to his own personal grievances that have evolved between him and the CEO over time since the latter took over. The definition of a protected disclosure is extremely wide, but it could not have been envisaged that it should cover personal grievances made against senior employees. To the extent that central to the applicants complaint in regards to the tip-offs is that the CEO interfered with the policy in that regard, whether that constituted an unlawful or criminal conduct is not for this Court to decide.

[26.19]...The strident language of the grievance is further a strong indication that the disclosure is not made good faith as required by the PDA, as what he seeks is to ensure that not only are his grievances dealt with, but that the CEO equally faces some consequences.

26.22 To the extent that the whistle-blowing procedures were not followed as conceded by the applicant, and further in the light of the views expressed in this judgment about whether the disclosures, if any were made, and also in good faith, it is doubted that on the face of it, there is causal link between the protected disclosures and the occupational detriment. In this regard, the applicant conceded that indeed he had recorded the EXCO meeting using his own mobile phone. If the respondents had reason to believe that the actions of the applicant constituted misconduct deserving an investigation, that is a matter within their prerogative.

Van Alphen v Rheinmetall Denel Munition (Pty) Ltd ([2013] 10 BLLR 1043 (LC); (2013) ILJ 34 3314 (LC) at para 22

26.15 It is further trite that the scheme of the PDA encourages internal procedures and remedies to be exhausted before the disclosure is made public.[17] In Alphen v Rheinmetall Denel Munition, it was further confirmed that the lodging of a grievance does indeed constitute an exercise of a right conferred by the LRA for the purposes of a claim of automatically unfair dismissal under section 187(1) of the LRA. This was because the act of lodging a grievance is merely an assertion of a right not to be treated unfairly, something which is guaranteed under the protection of fair labour practices enshrined in section 23(1) of the Constitution and section 185(b) of the LRA.[18]

Kabe v Nedbank Ltd (2018) 39 ILJ 1760 (LC) at para [29]

The grievances by the applicant do not meet the definition set out above (Definition of protected disclosure in Section 1 of the PDA). At a workplace, it is awaited that employees would be aggrieved now and then. It is for that reason that a good practice dictates that an employer should have in place a dedicated procedure to deal with employees grievances. Some grievances have merit whilst others do not. Regard being had to the preamble of the PDA, it was not enacted to allow employees to disparage their employers. Ordinarily, grievances are more about personal feelings of employees. The PDA is not intended to deal with personal feelings but with criminal and irregular conduct. It is largely concerned with more serious breaches of legal obligations.

DA1/2019

Baxter v Minister of Justice and Correctional Services and Others (DA1/2019) [2020] ZALAC 27; [2020] 10 BLLR 968 (LAC) ; (2020) 41 ILJ 2553 (LAC) (18 May 2020)

[11]... whether or not an internal disciplinary proceeding is permitted to proceed in the face of a section 188A(11) referral. The first issue, though, is whether the application is urgent.

J157/21

Pedlar v Performing Arts Council of Free State (J157/21) [2021] ZALCJHB 45 (24 March 2021)

[16] The referral in terms of section 188A(13) and the chairpersons ruling could not be the trigger for urgency. Had the applicant genuinely believed that the first respondent had caused him occupational detriment as envisaged in the Protected Disclosure Act, he could have sought relief when he was placed on precautionary suspension. This Court has on numerous occasions held that a party that approaches this Court on an urgent basis for an interdict at his leisure must be denied relief.[6] This is such a case as the urgency was clearly self created. For this reason alone, this application ought to be struck off the roll for lack of urgency.

requirements

JS468/19

Kekana v Railway Safety Regulator (JS468/19) [2021] ZALCJHB 395 (13 October 2021)

[35]...When regard is had to the definition of a disclosure, five elements must exist, and those are: (a) disclosure of information, information being facts provided or learned about something or someone[10]; (b) the employee must believe that the disclosure is made in the public interest not self-serving interest; (c) if the employee hold such a belief, it must be held reasonably; (d) the employee must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) (g); and lastly (e) if the employee does hold such belief, it must be reasonably held.[11] The question whether all the five elements have been established, an evaluative judgment by the Court, in the light of all the facts of the case, is required. Often time this exercised is squared up with the reason to belief requirement as set out in the section.

[42] Therefore, this Court arrives at a conclusion that the first leg of the enquiry as suggested in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey[[2019] 40 ILJ 1224 (LAC).] has been satisfied. This Court is satisfied that Kekana made a disclosure to the CFO, Kgare, and the board member.

[48] In Qonde v Minister of Education, Science and Innovations and others[16], this Court stated that good faith means honesty or sincerity of an intention[17]. The conclusion this Court reaches is that Kekana was honest and sincere when he disclosed the information from 10 January 2018 up to and including 15 March 2018. Kekana only knew on 22 March 2018, literally few days after escalating the disclosures to the board, that he was to be disciplined.

[57] The test for determining the true reason for the dismissal was laid down in SACWU v Afrox Ltd[[1999] 20 ILJ 1718 (LAC)] and it is to first determine the factual causation by asking whether the dismissal would have occurred if Kekana had not make the protected disclosure. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair, the next issue is one of legal causation, namely whether such making of the disclosure was the main, dominant, proximate or the most likely cause of the dismissal.[Numsa and others v Aveng Trident Steel and another [2019] 40 ILJ 2024 (LAC) at Para 68 and Baxter supra at para 84.]

[61] In summary, for all the above reasons, this Court reaches a conclusion that Kekana made a protected disclosure and the real reason for his dismissal is that he made a protected disclosure.

no evidence before this Court of a disclosure made in good faith

JS552/18

Josie v Amity International School and Another (JS552/18) [2021] ZALCJHB 441 (9 November 2021)

[57] Mrs. Josie has failed to prove that her dismissal is on account of her having made a protected disclosure. There is no evidence before this Court of a disclosure made in good faith by Mrs. Josie. Mrs. Josie failed to present any evidence whatsoever, regarding any bribery and corruption of Mrs. Kotze and other educators by Mrs. Mooloo or the Mooloo family. Her complaint therefore, does not fit into the definition of 'disclosure' as defined in the PDA. The evidence before this Court is that no contravention of any policy took place with regard to Miss Mooloo writing tests separately.

Urgent application without referring dispute to CCMA

J 1480/2021

NEHAWU obo N Phathela v Office of the Premier: Limpopo Provincial Government and Others (J 1480/2021) [2022] ZALCJHB 8 (7 February 2022)

[13] In the light of the above, this Court has no jurisdiction to grant the final order sought. The matter, if alleged to constitute an occupational detriment that arose as a result of a protected disclosure, will be deemed an unfair labour practice under section 4(2)(b) of the PDA. When read with section 191(13) of the LRA the matter must be referred to conciliation and a certificate of non-resolution must be issued before this Court can decide whether to grant the final relief sought. This is a jurisdictional prerequisite for this Court to determine an application for final relief that a disciplinary hearing constitutes a protected disclosure.

The applicant (employee) party bears the evidentiary burden in this enquiry.[The applicant (employee) party bears the evidentiary burden in this enquiry.[56]]...[87] I am satisfied that what the applicant was witnessing in the period between 29 January and 1 February 2018, from his reasonable perspective, was the committing of impropriety in contravention of the FAIS Act and its regulatory provisions...[90]...In my view, it is like selling someone else’s property without their permission.

JS 751 / 18

Smyth v Anglorand Securities Ltd (JS 751 / 18) [2022] ZALCJHB 72 (28 March 2022)

(TO WHO MAKING A DISCLSURE): [51] Next, when would the disclosure be a protected disclosure? In deciding this, the Court in Palace Group Investments (Pty) Ltd and Another v Mackie[(2014) 35 ILJ 973 (LAC) at para 15.] gave the following guidance: not all disclosures are protected in the sense of protecting the employee making the disclosure from being subjected to an occupational detriment by the employer implicated in the disclosure. A protected disclosure is defined as a disclosure made to the persons/bodies mentioned in ss 5, 6, 7, 8 and 9 and made in accordance with the provisions of each of such sections. In terms of s 6, for a disclosure to fall within the ambit of a protected disclosure it must have been made in good faith. It is clear that before other provisions of the PDA can come into play, the disclosure allegedly made must answer to the definition of that term as set out in the definitions section [52] Section 5 of the PDA provides that a disclosure made to a legal practitioner with the object of and in the course of obtaining legal advice is a protected disclosure. Section 6 provides for the disclosure to be made to the employer of the employee, and prescribes that the disclosure must be made in good faith and pursuant to the procedure prescribed by the employer for making such disclosure where such a procedure exists.[21] Sections 8(1)(a) and (b) provide for various prescribed bodies to which a protected disclosure can be made, namely the Public Protector, South African Human Rights Commission, Commission for Gender Equality, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Public Service Commission and the Auditor-General, provided once again that the disclosure is made in good faith.[22] Section 8(1)(c) adds the further requirements that the employee must reasonably believe that the relevant impropriety falls within any description of matters which in the ordinary course are dealt with by that person or body concerned, and that the information and any allegation contained in the disclosure are substantially true.

[55] What the above prescribed structure for making disclosures shows is that there are different considerations applicable to determining whether a disclosure qualifies as a protected disclosure, depending upon the person or body to which the disclosure has been made. As held in Tshishonga supra:[Id at para 198.]The tests are graduated proportionately to the risks of making disclosure. Thus the lowest threshold is set for disclosures to a legal adviser. 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.

(good faith): [56] However, and what is clear from all these prescripts, save of course only where the disclosure is made to a legal representative for the purposes of seeking legal advice, is the core requirement of the existence of good faith when the disclosure is made. One must however be careful not to set the bar of good faith too high, as doing so may very well defeat the purposes of what the PDA seeks to achieve, as recognized in Radebe and Another v Premier, Free State Province and Others[(2012) 33 ILJ 2353 (LAC) at para 34.]. So, it is important to decide what would constitute good faith for the purposes of protection under the PDA, which I turn to next.

[57] First, good faith, or bona fides, depending how one wants to call it, goes hand in hand with the requirement of reason to believe that the information constitutes an impropriety as defined in section 1(1) of the PDA. As said in Radebe supra:[Id at para 33. See also Tshishonga (supra) at para 186.] If the employee believes that the information is true it would fortify the reasonableness of his belief from which, in turn, his bona fides can be inferred . The Court in Radebe gave the following instructive views as to how bona fides can be inferred:[] Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self-advancement or revenge, for instance, would lead to a conclusion of lack of good faith. A clear indicator of lack of good faith is also where disingenuity is demonstrated by reliance on fabricated information or information known by the employee to be false. The absence of these elements on the other hand is a strong indicator that the employee honestly made the disclosure wishing for action to be taken to investigate it. The Court in Radebe concluded:[27]Simply stated if an employee discloses information in good faith and reasonably believes that the information disclosed shows or tends to show that improprieties were committed or continue to be committed then the disclosure is one that is protected. The requirement of 'reason to believe' 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. [58] It is important to appreciate that it is not necessary for the purposes of establishing good faith that it be proven that information disclosed was correct or true.[28] By definition, and in making the disclosure, the employee must only have reason to believe, not that the information is actually true, but that the information shows or tends to show that the impropriety has been or is being or may be committed in the future.[29] In applying these concepts, the Court in Baxter v Minister of Justice and Correctional Services and Others[(2020) 41 ILJ 2553 (LAC) at para 67.] held: it is important to note that the PDA does not require that the disclosures made are factually correct. The phrase tends to show in s 1 of the PDA intends that it is sufficient if the information in the disclosure is indicative of an impropriety. Likewise, the requirement that the employee merely have a reason to believe that the information points to an irregularity does not require personal knowledge of the information disclosed. That would set too high a standard frustrating the operation of the PDA. Hearsay information, depending on its nature and cogency, may provide a basis for a reasonable belief of possible irregularity.[59] Also in the above context, the Court in John v Afrox Oxygen Ltd[(2018) 39 ILJ 1278 (LAC) at para 26. The Court was referring in the quoted passage to SA Municipal Workers Union National Fund v Arbuthnot (2014) 35 ILJ 2434 (LAC) at para 15. See also para 28 of the judgment in John v Afrox where it was held: In holding that the appellant should prove the correctness of the facts for existence of the belief in order to enjoy protection, the court a quo elevated the requirement of the reasonableness of the belief to one of the accuracy of the facts upon which the belief was based. This sets a higher standard than what is required by the PDA, and such a requirement would frustrate the operation of the PDA .] held: In Arbuthnot, the court held that the enquiry is not about the reasonableness of the information, but about the reasonableness of the belief. This is so because the requirement of reasonable belief does not entail demonstrating the correctness of the information, because a belief can still be reasonable even if the information turns out to be inaccurate.[60] The fact that the information concerned may be sensitive to an employer or possibly expose it to possible reputational harm, cannot serve to strip the employee from protection in terms of the PDA. This was appreciated in Potgieter v Tubatse Ferrochrome and Others[(2014) 35 ILJ 2419 (LAC) at para 31. See also State Information Technology Agency (Pty) Ltd v Sekgobela (2012) 33 ILJ 2374 (LAC) at para 31, where the Court accepted that the legitimacy of any disclosure does not depend on how it is treated by whoever it is made to.] where the Court held: While due regard must be paid to the reputational damage that an organization may suffer as a result of disclosure of adverse information which is prejudicial to its commercial interests, I am of the view that a finding that the mere disclosure of sensitive information renders the employment relationship intolerable would, in my view, seriously erode the very protection that the abovementioned legal framework seeks to grant to whistleblowers.

(the motives of the employee): [61] Whilst it may be important to consider the motives of the employee in making the disclose, it is not necessary for the motives of the employee in making the disclosure to be as pure as the driven snow. The fact that an employee may have some ulterior motives cannot of its own scupper good faith. I venture to say that where ulterior motives or personal aspirations of the employee form the driving force behind making the disclosure, and are coupled with elements like dishonesty, corruption, false statements, and retribution, that good faith will fall by the wayside.[See Arbuthnot (supra) at para 23. In Sekgobela (supra) at para 32, it was held that: an ulterior motive such as personal antagonism which might have been the predominant purpose for making the disclosure , was incompatible with good faith. In Ngobeni v Minister of Communications and Another (2014) 35 ILJ 2506 (LC) at para 54, the Court referred to factors such as lack of honest intention, malice, ulterior motive, a quest for revenge, reckless abandon, a quest for self or others advancement, and attempts to divert attention from one's or others' wrongdoing and involvement in criminal or acts of misconduct , as negating good faith.] In short, mixed motives are not incompatible with the existence of good faith as required by the PDA. This was recognized in Baxter supra, where the Court said:[34]In any event, the fact that the appellant may have acted partly out of ulterior motive does not mean that he did not act in good faith (or acted in bad faith) by making the disclosure. Good faith must be assessed contextually on a case-by-case basis, taking account of various factors at play in the specific case. Acting with an ulterior motive is not necessarily the same as acting in bad faith. Acting in bad faith in a strict sense refers to a dishonest intention or a corrupt motive. The information in the disclosures made by the appellant was in fact true in important respects. The appellant did not deceitfully manufacture information or unreasonably exaggerate the wrongdoing that had taken place. There were real problems with the manner in which appointments were being made in the region for which Nxele was responsible. The fact that the appellant acted with some personal animosity or spite is not alone sufficient to conclude that he did not act in good faith. His earlier attempts to challenge the decisions, while somewhat tentative, and perhaps self-serving, reveal that by the time he belatedly made the disclosures (some weeks after being threatened by Nxele) he had mixed motives. In the circumstances it cannot be said that the appellant did not make the disclosures in good faith. In the result, the disclosures he made were protected disclosures in terms of the PDA [62] I do accept that the PDA cannot serve as open licence to be abused by employees in order to hide or escape their own misconduct, performance issues or other forms of serious transgressions on their part.[See Tshishonga (supra) at para 170, where it was said: 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 . Another example can be found in Legal Aid SA v Mayisela and Others (2019) 40 ILJ 1526 (LAC) at para 63, where it was held that where an employee threatens to report the employer to authorities, this threat does not constitute the disclosure of information as contemplated by the PDA.] That is why the motives of an employee would nonetheless always be an important consideration when deciding on the issue of good faith. As held in Lephoto supra:[] the PDA was not enacted to encourage employees, whose own conduct renders them liable to dismissal, to exploit this legislation in a desperate attempt to fend off the inevitable consequences of their own actions or performance. That the PDA should be interpreted generously in order to vindicate its purpose is one thing, but in a case such as the present, where the facts are overwhelmingly in support of the conclusion that its provisions were abused, the court should have no truck with an attempt to invoke its protection.

(what the employee requires to be done in making the disclosure): [63] A further consideration relevant in assessing whether good faith exists is what the employee requires to be done in making the disclosure. For example, where the employee asks that the wrong be further investigated, or remedied, or be addressed by a responsible authority, that would an indicator of the existence of good faith.[37] It is however not a stated purpose of the PDA to ensure that the subject matter of the disclosure made be investigated or dealt with, as the PDA rather centres around the protection of the employee for making the disclosure.[City of Tshwane Metropolitan Municipality v Engineering Council of SA and Another (2010) 31 ILJ 322 (SCA) at para 33.]

(section 9 of the PDA): [65] Good faith aside, where the disclosure is made to a third party, meaning a party other then one of the parties prescribed in sections 5, 6, 7 and 8 of the PDA, there are additional qualifying requirements under section 9 of the PDA, other than the general requirements of reasonable belief and good faith in making the disclosure, for it to be protected. In these cases, the employee must establish, in sequence, that: (1) the employee reasonably believed that the information was substantially true; (2) the disclosure was not made for the purposes of personal gain;[40] (3) at least one of the conditions in section 9(2) applies;[41] and (4) it was reasonable to have made the disclosure.[See Malan v Johannesburg Philharmonic Orchestra (JA 61/11) [2013] ZALAC 24 at para 29.][66] What is immediately evident from section 9 is that there is an enhanced and double requirement of reasonableness, so to speak. First, the employee must reasonably believe that the information is substantially true, which is a higher standard than the ordinary good faith requirement of a reasonable belief that the information is true. I venture to say that in order to establish a reasonable belief that the information is substantially true, the employee must show the existence of an objective justification for his or her belief that the information is true.[43] As said in Tshishonga supra:[44] Information of quality and quantity go to determining whether the disclosure is substantially true . Second, and even if the employee has a reasonable belief that the information is substantially true, the employee must also show that it was reasonable to have made the disclosure in the first place. Thus, it follows that the employee must provide reasonable justification as to why the disclosure could not have been dealt with internally in the employer, rather than the disclosure being made to a third party.[45] It is in this context that section 9(3) provides guidance, setting out a number of considerations that can be applied to determine whether it was reasonable to make the disclosure.

(information concerned is actually true, but with an ulterior or malicious motive): [67] Interestingly however, if it is shown that the information concerned is actually true, the fact that it may have been disclosed to such a third party with an ulterior or malicious motive, would not disqualify the disclosure from still being a protected disclosure. This was recognized in Tshishonga supra where the Court held:[]A malicious motive cannot disqualify the disclosure if the information is solid. If it did, the unwelcome consequence would be that a disclosure would be unprotected even if it benefits society. 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 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 whistle-blower. ...[94] But even if some kind of malice or ulterior motive can be attributed to the applicant, this still does not assist the respondent. Where the information disclosed is actually true, which I believe was the case in this instance, then the issue of a motive becomes largely irrelevant.

(not make the disclosure as a quid pro quo for being promised some benefit, payment, advantage or other kind of reward): [68] Finally, and as to the requirement of personal gain, the employee must not make the disclosure as a quid pro quo for being promised some benefit, payment, advantage or other kind of reward. This obviously does not include a legally prescribed benefit or reward.[47] In other words, the employee must not be in it for the money, but rather with the altruistic motivation of exposing perpetrators of maleficence in the interest of society and / or victims of such unlawful conduct.

(occupational detriment and if there is more than one reason for a dismissal): [69] Once it has been established that the employee has made a disclosure of information which qualifies as a protected disclosure under the PDA, the next step is to then determine whether the employee has been visited with an occupational detriment by his or her employer as a result of or because of making such a protected disclosure.[48] This entails the application of a causation test. In TSB Sugar supra[Id at paras 94 95. See also Lowies v University of Johannesburg (2013) 34 ILJ 3232 (LC) at para 51] the Court dealt with this consideration as follows: The phrase on account of means owing to, by reason of or because of the fact that. The phrase is used to introduce the reason or explanation for something for the purposes of the present discussion, the reason or explanation for the occupational detriment. The word partly means not completely, not solely, not entirely or not fully. A finding that an employee was subjected to an occupational detriment on account of having made a protected disclosure will be based on a conclusion that the sole or predominant reason or explanation for the occupational detriment was the protected disclosure; whereas a finding that an employee was subjected to an occupational detriment partly on account of having made a protected disclosure will be to the effect that the protected disclosure was one of more than one reason for the occupational detriment. Section 3 of the PDA thus casts the net wide. If there is more than one reason for a dismissal, the PDA will be contravened if any one of the reasons for the dismissal is the employee having made a protected disclosure. The wide scope of protection is consistent with the purposes of the PDA which addresses important constitutional values and injunctions regarding clean government and effective public service delivery.

[70] The point is that once it is shown that the protected disclosure was the main reason why the employee was dismissed, it simply does not matter if the employees dismissal may have been justified for other secondary reasons, as the employer is, by virtue of the provisions of section 187(1) of the LRA, prohibited from offering any other substantive defence to the dismissal. This was made clear in Baxter supra[50] where the Court said: Section 187(1) of the LRA lists reasons for which employees may not be dismissed (including making a protected disclosure under the PDA) and categorises such dismissals as automatically unfair. If it is proved that the employee was dismissed for any of the reasons specified in s 187(1) of the LRA, the employer cannot raise a defence based on the alleged fairness of the dismissal. The employer cannot claim that a dismissal for a proscribed reason was necessary for any other secondary reason, even if it can be argued that the dismissal was effected for a permissible reason related to the employees conduct or capacity or the employers operational requirements.[71] In determining whether the protected disclosure was the main reason for the dismissal of the employee, the well-known causation test as enunciated in SA Chemical Workers Union and Others v Afrox Ltd[51] finds application. As held in Baxter supra:[52] there may be different reasons for dismissing an employee and an employer is entitled to argue that the reason for the dismissal was not for a reason proscribed by s 187(1) of the LRA but for a fair reason based on incapacity or misconduct. The question will then trigger a causation enquiry. The essential enquiry is whether the reason for the dismissal is one proscribed by s 187(1) of the LRA, in this case the one in s 187(1)(h) of the LRA which proscribes the dismissal of an employee for making a protected disclosure

(the but for test): [72] In simple terms, this causation test involves what is in essence a two-stage enquiry.[See Baxter (supra) at paras 60 and 84; Mashaba v Telkom SA (2018) 39 ILJ 1067 (LC) at para 34.] The first part of the enquiry is to determine whether the dismissal of the employee would have taken place even if the employee did not make the protected disclosure, or in other words, the but for test. If the answer to this is yes, then the dismissal cannot be automatically unfair, because the necessary causation between the protected disclosure and the dismissal is absent. However, if the answer is no, then the second stage of the enquiry must be applied, being a determination whether the disclosure was the dominant, main, proximate or most likely cause of the dismissal.[In Independent Municipal and Allied Trade Union and Another v City of Matlosana Local Municipality and Another (2014) 35 ILJ 2459 (LC) at para 77, the Court said: Thus, what I am required to establish is the proximate cause of the disciplinary enquiry. It is clear that a disciplinary enquiry against an employee need not necessarily be the direct result of a disclosure. I propose that a useful and practical approach is to consider factors such as (i) the timing of the disciplinary enquiry; (ii) the reasons given by the employer for taking the disciplinary steps; (iii) the nature of the disclosure; (iv) and the persons responsible within the employer for taking the decisions to institute charges. See also Gallocher (supra) at para 74.] If the answer to this question is yes, then the dismissal would be automatically unfair, and if no, it would not....[116] Firstly, and when applying the but for first part of the causation test, it can easily be said that if it was not for making the disclosure, the applicant would never have been disciplined, let alone dismissed...[119] There is however a piece of evidence by Carter that in my view goes a long way towards showing that but for the disclosure, the applicant would never have been disciplined. Carter testified that when he consulted Fluxmans about the disclosure, he was asked why did he not dismiss the applicant. It is in the context of this discussion that Carter was asked by Fluxmans to collect evidence and then provide it to Fluxmans, which in my view was a deliberate stratagem to bring about the dismissal of the applicant.

[114] In sum, I conclude that the disclosure made by the applicant to the FSB on 5 February 2018, as copied to both Carter and Ma, constituted a proper and legitimate protected disclosure as contemplated by the PDA. The information disclosed qualified as information contemplated by the PDA in section 1(1) thereof. The disclosure was made in circumstances where the applicant reasonably believed the information was substantially true (the information disclosed was in fact true). The applicants conduct in making the disclosure was in good faith, and pursuant to what he saw as his obligations under the relevant applicable regulatory provisions. And finally, when applying section 9(1), the applicant has satisfied the conditions in sections 9(2)(a) and (d), the applicant obtained no benefit from the disclosure, and it was reasonable to have made the disclosure in the first place. The following dictum from the judgment in City of Tshwane Metropolitan Municipality v Engineering Council of SA and Another[(2010) 31 ILJ 322 (SCA) at para 45.], where the Court accepted a protected disclosure had been made by the employee, can equally be applied to the conduct of the applicant in casu: 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 s 9(2)(c) and (d) was satisfied. Mr Pauw rightly conceded that the first three requirements were satisfied. In the light of the evidence summarized 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.

[121] Finally, was the protected disclosure the main, dominant or proximate cause of the dismissal of the applicant, considering all the other misconduct charges. Deciding this question does entail that the substance of the other charges must be considered. Obviously, it is not for this Court to decide if a dismissal based on the other misconduct charges would be substantively fair, as only the CCMA has that jurisdiction. The assessment of the substance of the other misconduct charges is done only in the context of deciding, and putting it as simply as possible, what was the most important reason for the applicant being dismissed.

"an automatically unfair dismissal premised on having made a protected disclosure.

an automatically unfair dismissal premised on having made a protected disclosure.

"

JS140/19

Duncan v Swiss-South African Co-Operation Initiative and Others (JS140/19) [2023] ZALCJHB 110 (18 January 2023)

[3]... It subsequently came to Mr. Duncan’s attention from community members in the industry in which SSACI participates and to which it contributes, that the Ambassador and seventh respondent (Mr. Setiloane), were raising funds for the Hospitality Programme to the exclusion of SSACI. In Mr. Duncan’s view, their conduct constituted a conflict of interest in relation to their fiduciary duties as Trustees, as they were pursuing a project that was contrary to the interests of SSACI. He contends that he made a protected disclosure when he brought this issue that he perceived to be a conflict of interest, to the attention of the Chairman of the BOT, the third respondent (Mr. Isaacs) in an email dated 12 July 2018.

[27] From the aforegoing, it transpires that when an applicant demonstrates that s/he made a protected disclosure as defined in the PDA to his/her employer of an impropriety by his/her employer, s/he must prove that “but for” the disclosure, s/he would not have been dismissed.

"[29] Therefore, it is necessary for the Court to evaluate whether the applicant was deceitful and manufactured the information. It bears mentioning that it is trite that the applicant does not have to prove the veracity of information – s/he need only demonstrate that s/he reasonably believed the information s/he disclosed was substantially true.[25] The purport of the PDA is that once a disclosure is made, it is for that employer (or the body to whom the disclosure was made as the case may be), to investigate the issue disclosed.

"

[40] Therefore, in view of the aforesaid inadequacies in pleadings and the pre-trial minute and in view of the evidence, the issue that this Court is to determine is crisp and that is this: whether the reason for Mr. Duncan’s dismissal is pemised on him making a protected disclosure as defined in the PDA. The onus is therefore on Mr Duncan to prove to this Court that he made a protected disclosure as defined in the PDA and that his disclosure is the main, dominant or proximate reason for his dismissal. If he fails to discharge this onus, then, on the basis of the LAC decision in Baxter v Minister of Justice and Others,[40] with reference to its decision in SA Chemical Workers Union and Others v Afrox Ltd,[41] to which this Court is bound, this Court is to exercise its discretion, if it be expedient to do so, to proceed to determine the substantive and procedural fairness of his dismissal.

[77] I accordingly find that Mr. Duncan has discharged the onus on him and he has proved that he made a protected disclosure and he was dismissed on account of, or partly on account of having made the protected disclosure.

Employee cannot merely make allegation – Allegation must be one made in good faith

J68/23

Mamodupi v Property Practitioners Regulatory Authority and Another (J68/23) [2023] ZALCJHB 19 (13 February 2023)

[46] In order for a contravention to arise, an employee must first make a protected disclosure as defined in the PDA and thereafter an employer must subject that employee to an occupational detriment as defined. Section 1 of the PDA defines what a disclosure means. In casu, Mohlala was charged on 15 July 2022. Five days before the scheduled date, she alleged the contravention. It must be so that an employee relying on subsection 188A (11) must allege and prove the disclosure relied on as in when and where it was made. Section 3 refers to “having made a protected disclosure”. It is only an employee who have made a protected disclosure that is capable of being subjected to an occupational detriment. Differently put by subjecting an employee to an occupational detriment, the employer, as it were, punishes that employee for having exposed its wrongdoing. The occupational detriment must be retaliatory in form and be connected to the making of the protected disclosure.

"45.1 The employee must make a protected disclosure;

45.2 Thereafter, the employer must subject the employee who already made a protected disclosure to an occupational detriment;

45.3 Once so subjected, an employee must allege honestly and sincerely so that a causal connection does exist between his or her protected disclosure and the occupational detriment. Differently put, it is because of having made a protected disclosure that an employer chose to respond by an occupational detriment.

[47] In my view if any of the above stated jurisdictional facts is absent, subsection 188A (11) cannot be invoked. "

[51] In practical terms, any request in terms of subsection 188A (11) must be accompanied by the proof of the protected disclosure made, which must predate the charge sheet – commencement of a disciplinary action. Rationality as a species of legality or rule of law require application of mind before a statutory power is exercised. Differently put, the power must be exercised for the purpose for which it was given. Therefore, given the adverse effect that may visit an employer, by being forced into an arbitration like process, when it could have followed a cheaper process, decision makers on such requests must ensure that the jurisdictional requirements exist in order to invoke the statutory power. Axiomatically, if the request is denied, the process of the employer akin to the one suggested in Avril Elizabeth Homes case shall prevail.

Disclosure to board member and question of good faith

JA126/2021

Railway Safety Regulator v Kekana (JA126/2021) [2023] ZALAC 28 (18 October 2023)

"[42] The court a quo concluded, on that basis that the first leg of the enquiry as held in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey[16] was thus satisfied, that Mr Kekana had indeed made a disclosure to the CFO, who was a board member.

[43] The court a quo turned next to enquiring whether the “disclosure” of Mr Kekana was “protected” as contemplated in the PDA. It concluded that it was because it satisfied the requirements of sections 6 and 9 of that Act.

[44] Turning to the question of good faith – the court a quo effectively rejected the contention of the appellant that the disclosures were not made in good faith. It found that Mr Kekana did not make the disclosures in an attempt to shield himself from being disciplined and held that, at the time he made the disclosures, “he had no clue that [Ms] Kgare was toying with an idea to charge him for misconduct”; and that, as far as Mr Kekana was concerned, he had dispatched investigators to the scene of the accident.

[45] The court a quo found that, on her own version, Ms Kgare had enough reason to confront Mr Kekana if she was not satisfied with the manner in which he had dealt with the investigation of the train accidents, but that she did not do so until much later, after Mr Kekana had made the disclosures. The court a quo accordingly concluded: “[i]t is improbable that [Mr] Kekana made the protected disclosures in order to divert the non-existing charges. [Mr] Kekana had no inkling that he misconducted himself and [was] potentially facing chastisement.” The court a quo further found that Mr Kekana’s honesty and transparency in making the disclosures “demonstrate[d] his bona fides”.

[46] Regarding the causal link between Mr Kekana’s dismissal and his disclosures – the court a quo found that Mr Kekana had discharged the burden of establishing the causal link. The timing of the dismissal was considered. Seven days after Mr Kekana had brought the disclosures to the attention of the board Ms Kgare suddenly remembered that Mr Kekana had misconducted himself 3 months earlier in connection with the investigation of the train accident of 4 January 2018 that warranted disciplinary action against him."

disciplinary hearing to continue

J 58/2024

Mtweta v Transnet Freight Rail and Operating Division of Transnet (SOC) Limited (J 58/2024) [2024] ZALCJHB 17 (29 January 2024)

"[26] The answer is to be found in section 4(1)(a) of the PDA as already pointed out elsewhere in this judgment. This therefore implies that a chairperson of a disciplinary enquiry, is not required to enquire into the merits of the alleged protected disclosure, or whether the employee is subjected to an occupational detriment. The Chairperson is indeed obliged to halt the proceedings, but on condition that the employee has made the allegation before the CCMA or Bargaining Council or has already approached the Court for relief as contemplated in section 4(1)(a) or section 4(2)(b) of the PDA.

[27] In the absence of these steps having been taken by an employee, it is my view that the Chairperson is not obliged to halt the proceedings purely based solely on a mere allegation by an employee. Further to the extent that the allegations (i.e., a section 188A(11) referral) have not been placed before a forum and are suddenly raised at the enquiry coupled with an intention to approach a relevant forum, it is my view that this is a matter best left for the Chairperson to deal with within his or her discretion, bearing in mind the rights of an employee under section 4 of the PDA.

"

32] Transnet is correct in pointing out that from a reading of the founding affidavit, it is difficult to distil what is the protected disclosure that is relied on. Equally so, it is not clear as to when, how and to whom the disclosure was made. The Court equally draws a blank from the section 188A(11) referral to the TBC as attached to the founding affidavit.

[37] The above conclusions are further fortified by the very remedies provided under section 4(1)(a) - (b) of the PDA. In this regard, it was further correctly observed in NEHAWU obo N Phathela v Office of the Premier: Limpopo Provincial Government and Others[18] that where an employee alleges that he/she has been subjected to an occupational detriment (in breach of section 3 of the PDA) other than dismissal, such an occupational detriment is deemed to be an unfair labour practice as contemplated by the LRA. A dispute about an occupational detriment (short of dismissal) may be referred to this Court provided that the matter has been referred to conciliation and the matter remains unresolved, and as prescribed by section 4(2)(b) of the PDA.

Pre-dismissal arbitration section 188A(12)

J1631/23

Ntombela v Community Scheme Ombud Service and Others (J1631/23) [2024] ZALCJHB 121 (12 March 2024)

"[13] This Court, in Jacobs and Others v National Commissioner of South African Police Service and Another[2], set out the principles which are applicable to the interpretation of section 188A(11) as follows:

“[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. In Nxele, this Court pertinently held that:

“[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…”’

(own emphasis and footnotes omitted)"

"[14] In Tsibani v Estate Agency Affairs Board and Others[3] the Court explained the effect of section 188A(11) referral in the following terms:

‘[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)"

"20] The question of good faith still remains, and the Court in Radebe & Another v Premier, Free State Province and others[5] explained how good faith may be inferred, as follows:

‘[35 ]… Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self-advancement or revenge, for instance, would lead to a conclusion of lack of good faith. A clear indicator of lack of good faith is also where disingenuity is demonstrated by reliance on fabricated information or information known by the employee to be false. The absence of these elements on the other hand is a strong indicator that the employee honestly made the disclosure wishing for action to be taken to investigate it.’

‘[36] Simply stated if an employee discloses information in good faith and reasonably believes that the information disclosed shows or tends to show that improprieties were committed or continue to be committed then the disclosure is one that is protected. The requirement of 'reason to believe' 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. …’"

"23] In applying these concepts, the Court in Baxter v Minister of Justice and Correctional Services and Others[6] held:

‘… it is important to note that the PDA does not require that the disclosures made are factually correct. The phrase ‘tends to show’ in s 1 of the PDA intends that it is sufficient if the information in the disclosure is indicative of an impropriety. Likewise, the requirement that the employee merely have a reason to believe that the information points to an irregularity does not require personal knowledge of the information disclosed. That would set too high a standard frustrating the operation of the PDA. Hearsay information, depending on its nature and cogency, may provide a basis for a reasonable belief of possible irregularity.’"

Good faith

DA 04/2023

National Commissioner Department of Correctional Services v Nxele and Another (DA 04/2023) [2025] ZALAC 9; [2025] 5 BLLR 472 (LAC) (17 February 2025)

"[19] In considering whether Mr Nxele had raised the allegation in good faith, the Labour Court relied on the decision of Radebe and Another v Premier, Free State Province and Others[4] (Radebe) in which this Court made reference to the United Kingdom Appeal Court (Civil Division) decision of Street v Derbyshire Unemployed Workers’ Centre.[5] In that matter, it was stated that:

‘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. The term is to be found in many statutory and common law contexts, and because they are necessarily conditioned by their context, it is dangerous to apply judicial attempts at definition in one context to that of another.’

"

[20] The concept of good faith is sensitive to context.

[21] The appellant was aware the first disciplinary hearing instituted against Mr Nxele had been converted into a section 188A(11) inquiry which found that he had raised the allegation in good faith and that the holding of such disciplinary hearing contravened the PDA. Yet, in spite of this, the appellant’s response to the outcome of that inquiry was not only calculated but also unusual in a number of respects.

Where an employee has not made a disclosure within the meaning of section 1 of the Protected Disclosure Act (PDA), the provisions of section 188A (11) cannot be invoked...As matters stand, I do not read holding of an inquiry to be an occupational detriment as defined.

J683/23

Letakgomo v Johnson Matthey (Pty) Ltd (J683/23) [2025] ZALCJHB 240 (31 May 2025)

[15] The fact that it took Matthey a period of three months to unleash the detriment is concerning. Ordinarily, a detriment is in the form of retaliation. It seems improbable that Matthey would waylay, as it were, Letakgomo for three months before unleashing the detriment. Where a sufficient amount of time passes between the alleged disclosure and the detriment, it is difficult to make a connection.

[21] It is for that reason that I have a conceptual difficulty with the provisions of section 188A (11) of the LRA. The section created room for employees to allege that “holding of an inquiry” potentially contravenes the PDA. As indicated above, I take the view that the holding of an inquiry per se cannot contravene the PDA. I take that view for two reasons. Firstly, in terms of section 188A (1), the inquiry contemplated in section 188A is one into allegations about the conduct or capacity of an employee. It must then follow that the inquiry mentioned in subsection 188A (11) is one into allegations of misconduct and or capacity. That being the case, I struggle to understand how a holding of an inquiry into allegations of conduct and capacity could potentially contravene the PDA

[24] Ultimately, it boils down to this. An inquiry into the same allegations of conduct or capacity if conducted by an arbitrator, even if it arose after making a protected disclosure, does not contravene the PDA, whereas, the same inquiry if conducted by an employer has the potential of being labelled by an employee in good faith to be a breach of the PDA. As indicated above, this permutation would make sense if the PDA in particular prohibits the holding of an inquiry by an employer in instances where an employee has made a protected disclosure. As matters stand, I do not read holding of an inquiry to be an occupational detriment as defined.

"Employee"

JR 237/21

Sethibelo v General Public Service Sector Bargaining Council and Others (JR 237/21) [2025] ZALCJHB 250 (26 June 2025)

"Email: ""The information we got suffices but someone from your office phoned the Chairperson of the Portfolio Committee – you need to investigate who leaks information from NAC.

"""

Ms Mangope, was that she (Mangope), was not an employee of DAC and merely reported to the Board of the NAC.

[21] She disputed that Makgoka was an employee of the DAC. Her contention was that the NAC was an independent entity established under a different statute. She conceded that the Board of the NAC was appointed by Minister, and that the DAC exercised oversight over the activities of the NAC as its delivery arm, including its financial matters.

[28]...The Arbitrator had regard to the provisions of sections 1 and 3[3] of the PDA and the applicant’s contentions that she did not know the identity of the whistleblower at the time, and or that the latter was in any event not an employee of the DAC for the purposes of application of the provisions the whistleblowing policy. The Arbitrator concluded that the evidence of the CEO of NAC, Mangope, lacked credibility since the whistleblower, Makgoka, was subjected to a disciplinary process flowing from her identity being revealed.

"[29] The Arbitrator also considered the provisions of section 210 of the Labour Relations Act (LRA)[4], in regard to the definition of an employee and the presumptions under section 200A of the LRA in establishing whether Makgoka was an employee of the DAC for the purposes of application of its policies on whistleblowers.

[30] Against the above provisions, the Arbitrator concluded that in the light of the nature of the relationship between the DAC and the NAC pertaining to the former’s oversight over the latter; the instructions issued to it; the interdependence; appointment of Boards and payment of salaries etc, the DAC was the ‘broader employer’ of Makgoka for the purposes of the PDA, and therefore she was its employee."

"[35] The starting point are the provisions of the PDA, which the applicant sought to downplay. In its preamble, 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.

[36] Certain obligations under section 3B of the PDA are imposed on the person or body to whom a protected disclosure was made, including taking a decision as to whether the matter would be investigated; or whether the disclosure will be referred to another person or body if that disclosure could be investigated or dealt with more appropriately by that other person or body."

[39]...Equally so, it is irrelevant whether the CEO saw nothing wrong with the email or had not acted on the instruction. In any event, the applicant by virtue of her position and oversight of the NAC had issued the instruction. Of equal irrelevance is the applicant’s contention that at the time that the email was sent to the CEO of NAC the identity of the whistleblower was not known until the release of the Grant Thornton report on 8 February 2017. Clearly her email of 2 February 2017 indicated her intentions notwithstanding the release of the Grant Thornton report six days later. The fact however remains that the applicant sought to have the identity of the whistleblower revealed, rather than have the nature of the allegations investigated.

[40]...It followed that under the provisions of section 4 of the PDA, and to the extent that Makgatho was identified and may have been subjected to any occupational detriment as defined under section 1 of the PDA, this had indeed exposed the DAC and the NAC to liability under Section 4 of the PDA.

[43] An ‘employer’ on the other hand in the PDA, is defined as any person who employs or provides work for any other person and who remunerates or expressly or tacitly undertakes to remunerate that other person; or who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business.

[44] For the purposes of determining this dispute in so far as the status of Makgatho was concerned, of relevance in my view is the definition of ‘organ of state’ in the PDA, which means any inter alia, department of state or administration in the national sphere of government, or any other functionary or institution when exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation. The provisions of section 8(1) of the Public Service Act[8](“the PSA”) further in my view puts the status of Makgatho and others within the NAC to rest, as they clearly provide that “The public service shall consist of persons who are employed in posts on the establishment of departments, and additional to the establishment of departments” A “department” on the other hand is defined in section 1 of the PSA to mean “a national department, a national government component…”.

46] Against these definitions, there cannot be any substance to the contention that employees of agencies of a department are not its employees. These employees are as part of a departmental agency, employed additional to the establishment of a department, and are clearly part of a national government component. Departmental agencies are not independent entities in the strict sense of the word irrespective of the statute under which they were established, in the light of their intrinsic connection to the departments under which they were established.

"Appearances:

For the Applicant: P Kirstein, instructed by Marius Scheepers & Co Attorneys"

16.1.1

Protected disclosure act

disclosed confidential documents to his attorney

2025-096639

Bangeni v Local Government SETA (Reasons) (2025-096639) [2025] ZALCJHB 379 (28 August 2025)

23.3 An employee is permitted to make a protected disclosure to his or her legal practitioner for the purpose of obtaining advice.[]

"AI summary: Radebe & another v Premier, Free State Province & others (2012) 33 ILJ 2353 (LAC) – Clarifies that an employee making a disclosure is not required to prove the information is correct.

Communication Workers Union v Mobile Telephone Networks (Pty) Ltd (2003) 24 ILJ 1670 (LC) – Discusses the nexus between disclosure and occupational detriment.

Baxter v Minister of Justice & Correctional Services & others (2020) 41 ILJ 2553 (LAC) – Explains the requirement of good faith in disclosures.

Nxele v National Commissioner: Department of Correctional Services & others (2018) 39 ILJ 1799 (LC) – Clarifies the application of section 188A(11) of the LRA.

Potgieter v Tubatse Ferrochrome & others (2014) 35 ILJ 2419 (LAC) – Discusses whistleblower protections under the PDA.

Zungu v Premier of the Province of KwaZulu-Natal & others (2018) 39 ILJ 523 (CC) – Addresses costs in labour court matters.

Department of Correctional Services v General Public Service Sectoral Bargaining Council & others (2025) 46 ILJ 310 (LAC) – Discusses abuse of process and costs."

New rules

section 188A(11) enquiry

2025/167534

Municipal Employees and Civil Servants Union obo Mlungwana v Ekurhuleni Metropolitan Municipality and Another (2025/167534) [2025] ZALCJHB 440 (30 September 2025)

"[11] In Tsibane v Estate Agency Affairs Board and Others[[2021] ZALCJHB 150 (24 June 2021).], the Court held as follows at paragraph 64:

‘[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.’"

"2. The first and second respondents are interdicted from proceeding with the internal disciplinary inquiry presided over by the second respondent pending finalisation of Section 188A(11) of the LRA application for an inquiry by an arbitrator under the auspices of the South African Government Bargaining Council.

"

section 188A(11) enquiry

2025/169524

Matlala v Foskor Proprietary Limited and Others (2025/169524) [2025] ZALCJHB 478 (22 October 2025)

protected disclosure – Suspended and charged with misconduct – Disclosures made about vice president’s conduct and broader internal issues – Belief that disciplinary action constituted an occupational detriment was not frivolous or insincere – Merits of claim not assessed – Existence of a bona fide belief was sufficient to justify interim relief – Warranted to preserve integrity of referral process – Disciplinary inquiry suspended pending a decision by arbitrator – Labour Relations Act 66 of 1995, s 188A(11).

"[38] In determining the prerequisites for an arbitrator to chair the enquiry, the court stated:

“(43) A casual and sloppy reading of the subsection suggests that an employee may make a simple allegation of contravention of the PDA in order to invoke the subsection. Not, the allegation must be one made in good faith. This requirement illuminates the fact that the legislature was alive to the fact that an employee may make a wild allegation and thereby gain the right to an inquiry by an arbitrator. This is an instance where an abuse of the subsection creeps in easily. The legislature must have carefully chosen the phrase good faith because in section 9 of the PDA any disclosure made in good faith is protected. It becomes so protected if an employee reasonably believes that the information disclosed and an allegation contained in it are substantially true and the disclosure is not made for the purposes of personal gain. The phrase good faith, when used as a noun, means honesty or sincerity of intention.

(44) It must follow that the allegation of contravention must have an element of honesty and sincerity. The veritable question is how does a Court faced with an application of this nature test honesty and sincerity of the allegation of contravention? To my mind a contravention must not only be alleged it must prima facie factually exist. I say so because in terms of section 1 of the PDA an occupational detriment in relation to the working environment of an employee means amongst others being subjected to any disciplinary action.”"

[43] I agree with the court in Mamodupi that the starting point for identifying the requisites for holding an enquiry under s 188A(11), must be the wording of the section, which states that an employee is entitled to require an enquiry into their conduct or capacity to be conducted under s 188A if the employee “alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000” (emphasis added).

"[44] If the request for a statutory hearing is successful, it merely means that the internal incapacity or misconduct inquiry is substituted with an arbitration presided over by a completely independent chairperson. In Tsibani v Estate Agency Affairs Board and Others[6], this court emphasised the limited scope of the s 188A(11) procedure:

“(72) Section 188A(11) 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. The section provides for an inquiry into allegations pertaining to the conduct or capacity of an employee.”

(emphasis added)

"

[46] Because the section 188A(11) enquiry is simply a misconduct or incapacity hearing, whether the employee had actually suffered an occupational detriment is not within the remit of the arbitrator in that forum. Nevertheless, the arbitrator is not obliged to proceed with the inquiry regardless of the circumstances under which the disciplinary action arose. The threshold requirement that must still be met is that the employee’s allegation that the disciplinary steps taken by the employer amounts to an occupational detriment under the PDA must be one made in good faith.

[47] In assessing the existence of good faith, it must be recognised that it possible that the allegation of being subjected to an occupational detriment might be made in the sincere belief it is correct, when objectively speaking it is wrong. An employee’s belief they have been subjected to an occupational detriment, might be mistaken on several grounds, both concerning the legal interpretation of the PDA and the factual basis for their belief. Plainly, if an employee relies on a factual assertion which they know to be false the allegation cannot be bona fide because it relies on an intentional misrepresentation. In instances where the allegation is not plainly false, there must at least be a tenable or plausible basis for them holding that belief. Accordingly, if there are undisputed facts that are irreconcilable with their belief, which the employee could not be unaware of, their belief cannot be accepted as bona fide one. Equally, if the belief is one that nobody in the position of that person could reasonably hold in the circumstances, it could not be held in good faith[7].

[51] Should the court then grant interim relief by suspending the internal inquiry pending the decision of the CCMA commissioner whether to proceed with the s 188A(11) enquiry? If the court does not stay the internal enquiry, Matlala could be denied the opportunity of exercising his right to request the statutory enquiry because, unless the request for the statutory enquiry is accepted, the employer can proceed with the internal one in the meantime.

"2. The disciplinary enquiry into the charges of misconduct against the Applicant, set out in the First Respondent’s notice of 7 and 22 August 2025, is suspended pending a decision by the arbitrator appointed by the Third Respondent, whether the disciplinary enquiry should be conducted in accordance with Section 188A(11) of the Labour Relations Act, 66 of 1995.

"

pre-dismissal arbitration under section 188A(11)

2025/189683

Fisher v Ngcuka N.O. and Others (2025/189683) [2025] ZALCJHB 514 (28 October 2025)

"[39] Therefore, pre-dismissal arbitration under section 188A(11) is a process that completely substitutes the internal disciplinary hearing in all respects. The two processes cannot exist side by side. Once the pre-dismissal arbitration proceedings are convened, then internal disciplinary proceedings must terminate. This was made pertinently clear in a number of judgments. First, in Foskor supra it was held:[43] ‘… If the request for a statutory hearing is successful, it merely means that the internal incapacity or misconduct inquiry is substituted with an arbitration presided over by a completely independent chairperson …’. Next, and in the Labour Court judgment in Nxele supra, it was stated:[44] ‘… The internal disciplinary enquiry that would have commenced and is pending must terminate …’. The same sentiment was in expressed in SA Broadcasting Corporation SOC Ltd v Phasha[45] as follows: ‘… The essence of s 188A is to provide for a pre-dismissal arbitration which substitutes arbitration before an independent arbitrator for a disciplinary enquiry …’. As lastly, as succinctly said in Tsibani v Estate Agency Affairs Board and Others:[[2021] JOL 51625 (LC) at para 67.]

‘Section 188A(11) does not envisage the holding of two parallel hearings. Section 188A provides for an inquiry into allegations relating to an employee's conduct or capacity and for such an inquiry to be conducted by an arbitrator, in accordance with the provisions of the said section. If the inquiry relates to allegations relating to an employee's conduct, the section 188A inquiry will happen instead of an internal disciplinary hearing.’"

Section 188A(11) of LRA

2025/212698

Modika v Industrial Development Corporation of South Africa and Another (2025/212698) [2025] ZALCJHB 529 (13 November 2025)

applicant only required to make out a case that disclosure was made and such disclosure would qualify as protected disclosure under Protected Disclosures Act (PDA) – not required for Court to decide whether applicant would be entitled to protection or whether disclosure bona fide or justified – purpose of s 188A(11) is not that decision be made on a protected disclosure – arbitrator decides whether to accept pre-dismissal arbitration in terms of s 188A(11) – not appropriate for Labour Court to decide such issue

purpose of section to move disciplinary proceedings to CCMA by way of pre-dismissal arbitration under s 188A – impartial arbitration on misconduct charges removes risk of influence in decision of misconduct as a result of protected disclosure – misconduct will thus finally be impartially decided based only on what employer can prove in respect of misconduct – statutory prescribed alternative to internal disciplinary hearing in cases of alleged protected disclosure

[8] What was undisputed is that the applicant lodged a complaint against Mdaka on 29 July 2025, using the anonymous whistle blowing report line in the IDC for this purpose. In this complaint, the applicant raised concerns about systemic bullying, harassment, unfair discrimination practices, and harassing employees perpetrated by Mdaka.

"28] I believe that a refusal to consider the applicant’s application will lead to a grave injustice. It can nothing else but unfair to expect the applicant to participate in internal disciplinary proceedings which, if his case is successful, would effectively cause such internal disciplinary proceedings to be null and void. This is even more prejudicial, considering that he CCMA has convened arbitration proceedings for 17 November 2025 to determine whether to accept the referral or not. As held in Fisher v Ngcuka N.O. and Others[15]:

‘In my view, not to consider the application could cause a grave injustice. I believe it would be patently unfair to expect the applicant to participate in what would clearly be a comprehensive disciplinary hearing, in circumstances where the applicant has alleged an occupational detriment as a result of having made a protected disclosure, which according to her strikes at the very heart of the disciplinary proceedings against her. The issue of the possible occupational detriment following a protected disclosure is in itself an issue that carries with it an inherent quality of urgent intervention, especially where an alternative process to deal with it is available and has been invoked, but despite this, Bidvest Services is pressing on with internal discipline.’"

"30] The applicant cannot obtain substantive redress in the ordinary course. This is because of the sui generis nature of section 188A proceedings, brought under section 188A(11). As will be discussed below in this judgment, it is intended to act as a complete substitute for internal disciplinary proceedings when allegations of an occupational detriment due to a protected disclosure is at stake. If internal disciplinary proceedings are allowed to proceed, even if a dismissal of course can be later challenged under the LRA, this up front protection, so to speak, will be lost. This equally justifies urgent intervention. As held in Matlala v Foskor Proprietary Limited and Others[19]:

‘Further, there is no equivalent ‘alternative’ to invoking s 188A(11), which Matlala has a right to exercise. While there is a possibility of the provision being abused to delay or avoid an internal hearing, it must be remembered that procedure initiated by the employer does not disappear if an employee successfully invokes the provision. It simply relocates the subject matter of the internal enquiry to arbitral proceedings …’"

"[41] I have little hesitation in concluding that, having proper regard to the contents of the applicant’s disclosure, that it would qualify as a protected disclosure under section 1 of the PDA. In particular, there is are allegations that the head of department of the TCOE unit (Mdaka), being the very person that instituted the disciplinary proceedings against the applicant, is failing to comply with the legal obligations on her, the health of individuals is being compromised by her, and that there exists discrimination perpetrated by her, all of which form part of the definition in section 1 of the PDA.[33] As pertinently held in Baxter v Minister of Justice and Correctional Services and Others[34]:

‘… it is important to note that the PDA does not require that the disclosures made are factually correct. The phrase ‘tends to show’ in s 1 of the PDA intends that it is sufficient if the information in the disclosure is indicative of an impropriety. Likewise, the requirement that the employee merely have a reason to believe that the information points to an irregularity does not require personal knowledge of the information disclosed. That would set too high a standard frustrating the operation of the PDA. Hearsay information, depending on its nature and cogency, may provide a basis for a reasonable belief of possible irregularity. …’"

"[42] The Court in Baxter supra in fact accepted that disclosures concerning employees who served on interview panels having failed to comply with various legal obligations to which they were subject, would qualify under section 1 of the PDA. The Court decided:[35]

‘It is clear therefore that the disclosures made by the appellant relating to the irregularities in the various recruitment processes constituted disclosures in terms of the PDA. They disclosed information regarding the conduct of some members of the interview panels and Nxele which the appellant had reason to believe showed or tended to show that the members of the interview panels and/or Nxele had failed to comply with legal obligations to which they were subject in terms of the Public Service Regulations. The Labour Court erred in holding otherwise.’

The applicant, in his disclosure of 29 July 2025, basically says the same kind of thing. No doubt it qualifies, by definition, as a protected disclosure under section 1 of the PDA."

"[45] In Tshabalala v Moqhaka Local Municipality and Another[36] the Court dealt with the Local Government: Disciplinary Regulations for Senior Managers, 2010, which contained provisions prescribing when disciplinary proceedings are commenced and when a disciplinary hearing is instituted, and the Court had the following to say:

‘What this construction contemplates is a disciplinary process that is commenced by the service of charges on the employee and which culminates in the conclusion of a disciplinary hearing. A disciplinary hearing is an integral part of the disciplinary process or proceedings; it does not constitute the proceedings in themselves.’"

Public Holidays Act 1994

Provides for a minimum number of public holidays days ; Where a public holiday falls on a Sunday, both the Sunday and the Monday constitute public holidays

JA29/06

Randfontein Estates Ltd v NUM

Offer for re-employment

JS40/14

Truter v Heat Tech Geysers (Pty) Ltd (JS40/14) [2016] ZALCJHB 83 (2 March 2016)

Kemp t/a Central Med v Rawlins (2009) 30 ILJ 2677 (LAC)

factors such as the lapse of time between the dismissal and the offer of reinstatement; whether the offer was unconditional or subject to conditions; whether it gave the employee certain assurances that he or she would not be victimised and whether the offer was bona fide, are considerations which would impact on the compensation ultimately awarded.

Trade Union

Locus standi

union had failed to cite the individual employees as co-applicants

union was entitled to refer the dispute in terms of s200(1) of the LRA and that the referral was valid

JA13/01

NUM v Hernic Exploration (Pty) Ltd

Registration denied

union was not formed and managed by employees to regulate their relations with employers, nor did it function as a trade union in accordance with its constitution;.

term genuine; that the Registrar does not enjoy a majoritarian gatekeeper role at the registration stage and that his refusal to register the union was a misinterpretation of his authority; registration of the union was ordered.

although registration was not a sine qua non for the separate juristic personality of a union registered unions enjoy various organisational rights which were critical to a unions viability and efficacy

C491/04

Workers Union of SA v Crouse, J N.O. & The Department of Labour

taking possession of movable property

JS964/2015

Vermaak and Another v Sea Spirit Trading 162 CC t/a Paledi Super Spar and Others (JS964/2015) [2017] ZALCJHB 34; (2017) 38 ILJ 1411 (LC) (31 January 2017)

The question is: does the perfection of a notarial bond and consequent taking of possession of movable property to realise an indebtedness constitute a transfer of a business as a going concern as contemplated in section 197 of the LRA.

[70] In my view Spar did more that to act as a creditor seeking to secure and realise indebtedness to it. If Spar simply sought to secure and realise a debt, it could have taken control over the movable property of Paledi Super Spar and Paledi Tops and could have sold or dispose of the moveable property to realise the debt. Instead, Spar took not only control over the movable property, but also of the stores and operated the stores from 1 July 2015 until April 2016, when Spar sold the businesses as going concerns.

[74]Section 197 will be triggered if a business was transferred as a going concern. That means that a business in operation is transferred to remain the same but in different hands. The sale of a business is not required by section 197, nor is it required that the transfer be a long term or permanent one. In my view the intention of the parties or the reason why a business is transferred, is immaterial and irrelevant and play no role in the objective enquiry whether a transfer as contemplated in section 197 of the Act has taken place.

Van der Velde v Business and Design Software (Pty) Ltd (2006) 27 ILJ 1738 (LC) at 1148-1149

In summary, and in an attempt to crystallize these views and to formulate a test that properly balances employer H and worker interests, the legal position when an applicant claims that a dismissal is automatically unfair because the reason for dismissal was a transfer in terms of s 197 or a reason related to it, is this:

internal dispute

J1524/17

South African Chemical Workers' Union ('SACWU') and Another v Modise (J1524/17) [2017] ZALCJHB 265 (7 July 2017)

to interdict the unions general secretary from convening a purported meeting of the union labour court jurisdiction under s 158(1)(e)(i) confined to disputes about the interpretation and application of the constitution between union members and a union does not extend to a dispute between the union and an office bearer who is not a member

Unregistered Trade Union

J256/19

Vodacom (Pty) Ltd and Others v National Association of South African Workers ('NASA') and Another (J256/19) [2019] ZALCJHB 49; (2019) 40 ILJ 1882 (LC) (4 March 2019)

Interdict unregistered union entering premises to communicate and meet with employees of contractor nature of rights infringed jurisdiction of court to entertain interdict concerning interference with property rights -requirements of final interdict met

Interdict unregistered union entering premises to communicate and meet with employees of contractor nature of rights infringed jurisdiction of court to entertain interdict concerning interference with property rights -requirements of final interdict met

[32] Therefore, as matters stand, the respondents cannot bypass the LRA mechanisms for achieving rights of access and convening meetings of members at the workplace of the employer by trying to directly enforce their constitutional rights to freedom of association and fair labour practices. Consequently, have no right to insist on access to the premises to communicate with Bidvest Services employees or to hold meetings with them on the premises

Membership outside union's constitution

[9] In Lufil[NUMSA v Lufil Packaging (Isithebe) and Others[2020 (6) BCLR 725 (CC); [2020] 7 BLLR 645 (CC) (26 March 2020)]] the Constitutional Court upheld the Labour Appeal Court (LAC) decision that a trade union cannot create a class of membership outside the provisions of its own constitution. The Constitutional Court held that:[47] The contractual purpose of a union’s constitution and its impact on the right to freedom of association of its current members is founded in its constitution. A voluntary association, such as NUMSA, is bound by its own constitution. It has no powers beyond the four corners of that document. Having elected to define the eligibility for membership in its scope, it manifestly limited its eligibility for membership. When it comes to organisational rights, NUMSA is bound to the categories of membership set out in its scope.

(Incomplete)