Tshishonga v Minister of Justice and Constitutional Development and Another

• Jurisdiction: South Africa
• Judge: Pillay J
• Judgment Date: 26 December 2006
• Citation: 2007 (4) SA 135 (LC)
• Docket Number: JS898/04
• Hearing Date: 02 November 2006
• Counsel: H v R Woudstra SC for the applicant. G Hulley for the respondents.
• Court: Labour Court

Pillay J:

Introduction I

[1] Are disclosures to the media about impropriety in the workplace protected under the Protected Disclosures Act 26 of 2000 (PDA)? What is a disclosure? When does it qualify for protection? What remedies are appropriate for compensating a victim of an occupational detriment? J

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A [2] These are some of the questions that have to be answered in the first claim before the Labour Court for compensation arising from the PDA. [1]

Applicant's evidence

[3] The applicant was employed in 1978 in the department of justice B (the department) in Venda as a Director-General. In 1994 he became a Deputy Director-General when the various departments of justice amalgamated. He was the Managing Director of the Master's Office business unit (the unit).

[4] One of his tasks was to eradicate corruption that riddled the C administration of insolvent estates, particularly around the appointment of liquidators. After a brainstorming exercise with the staff it was resolved that a panel would be established to appoint liquidators.

[5] In 2002 the first respondent, the former Minister of Justice, Dr Penwell Maduna, telephoned the applicant from Cape Town to inform D him that he was with a friend, Mr Enver Motala, who would be contacting the applicant because he, Motala, was knowledgeable about liquidations.

[6] In February 2002 Motala met the applicant for lunch in Pretoria. He expressed his dissatisfaction with the way in which he was being sidelined E by the procedure for appointing liquidators. Mr Lategan, an Assistant Master in the Pretoria Master's Office was, he said, very knowledgeable about liquidators and their appointment and he should be engaged when appointing them. The Minister, he said, liked the applicant very much, and that he had great respect for the Minister. The discussion ended with F the applicant being wary of Motala. It was clear to him that Motala wanted to influence him for his own purpose by abusing his relationship with the Minister.

[7] Two insolvency practitioners' bodies wanted to merge. About 8 February 2002 they met under the chairmanship of the applicant. Prior G to the meeting, Motala had telephoned the applicant to inform him that the Minister wanted him to attend the meeting. The applicant was unhappy about acceding to the request. He informed Dr Seriti, the erstwhile chairman of one of the merging associations. Dr Seriti was concerned. At the meeting he said it was not proper for Motala to attend H while other liquidators were excluded. Furthermore, it was a meeting of the executive members of the practitioners' bodies. Motala nevertheless remained in attendance throughout the meeting, despite the discomfort it caused the participants.

[8] About 15 February 2002 the Minister telephoned the applicant, I

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expressing dissatisfaction with the way in which liquidators were being A appointed. He directed the applicant to convene a meeting with the staff so that he could address them.

[9] The meeting was attended by South African Commercial Catering and Allied Workers Union (SACCAWU) and the South African Revenue Service (SARS). Motala attended again as the only liquidator. The Minister B announced that he was unhappy with the way in which Motala was being sidelined. The chairperson of the panel for appointing liquidators, Irene Mokgalabone, had prepared a report which she distributed at the meeting. She explained why Motala was not appointed. (See evidence of Mokgalabone.) C

[10] The discussion ended on the note that since the Minister was made aware of the procedure, if anyone was unhappy they could approach the applicant first before contacting the Minister. In the applicant's opinion the matter was resolved. D

[11] While the applicant was on leave in July 2002, Mr Koos van der Merwe, the Senior Manager: Inland who was deputising for him, telephoned to inform him that Mr Farouk Vahed, the Master of the High Court in Pietermaritzburg, had been instructed by the Minister to appoint Motala as liquidator in the Retail Apparel Group (RAG) liquidation. Van der Merwe wanted to know how to assist Vahed. E

[12] The applicant advised Van der Merwe to get help from the department's legal advisers so that the Minister could be informed as to what his powers were. Van der Merwe replied that legal advice had already been obtained and that the Minister did not agree with it. The F applicant then directed Van der Merwe to inform Vahed to exercise his discretion in terms of the law and that Vahed should get the Minister's instructions in writing if they were beyond his powers.

[13] On his return to work the applicant asked Vahed to prepare a report on this episode. (The Vahed report.)

[14] RAG was liquidated in May 2002. G

[15] Four liquidators originally appointed to the RAG enquiry successfully challenged the appointment of Motala in the High Court in KwaZulu-Natal. The Court confirmed the opinion of the department's H legal advisers, viz that the Minister did not have the power to instruct the Master to appoint liquidators.

[16] The Minister's appeal to the Supreme Court of Appeal was dismissed. [2]

[17] About 12 September 2002, while the decision of the Supreme I Court of Appeal was pending, the Minister instructed the applicant to convene a meeting between Lategan, the second respondent, ie Director-

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General A Vusi Pikoli, Vahed and himself. At that meeting the Minister announced that he was appointing Lategan as Acting Assistant Master in Pietermaritzburg to oversee the appointment of the liquidators in the RAG case.

[18] The applicant was surprised. He did not expect the Minister to B appoint his subordinate without first approaching him. He wondered how the Minister even knew of Lategan without engaging the applicant. Furthermore, it was unheard of that an Assistant Master from one jurisdiction could be appointed to act in another jurisdiction and in a specific case. C

[19] Although RAG was one of the largest liquidations in the country, involving claims in excess of R1 billion, Vahed had been reluctant to follow the Minister's instructions for the further reason that it did not justify five liquidators.

[20] Lategan appointed Motala as the fifth and lead liquidator in the D RAG liquidation after he became acting Assistant Master in Pietermaritzburg.

[21] The procedure for appointing liquidators was that the company in liquidation would requisition a person to be appointed. It was not open E to Lategan to make an appointment without a recommendation or requisition. Lategan's relationship with Motala was also unusual. The Finance Week of 14 April 2004 [3] published a testimonial issued on 7 March 2001 in which he praised Motala 'unashamedly'. [4]

[22] The RAG enquiry in terms of s 417 of the Companies Act 61 of F 1973 proceeded in Sandton. Motala's attorney, Brian Kahn, and two advisers, viz Soraya Hassim and Ratif Bhana, who were also related to or personally associated with Motala, were appointed.

[23] During a meeting held in January 2003 to discuss how to deal with the Minister and Motala, the Director-General admitted to Mokgalabone G and the applicant that he was unhappy about their relationship and remarked that the Minister became 'agitated' whenever something was said about Motala.

[24] At about 21:00 on 28 January 2003 the applicant received a telephone call at his home from the Minister, informing him that he was H with the trade union who was up in arms because it believed that its interests were not being taken seriously when liquidators were appointed. The Minister accused the applicant of not helping him in the RAG matter and of bad-mouthing him. He declared that the applicant would be 'the first casualty'. He raged on that he was removing the I applicant as head of the unit with immediate effect and that he did not care where the Director-General placed him. He refused to hear any response from the applicant.

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[25] The applicant became numb with disbelief that the Minister could A be so insensitive. He telephoned the Director-General that evening to report the incident. The Director-General was also shocked. They agreed to discuss the matter the following day.

[26] At the discussion the next day it was clear that the Minister had already contacted the Director-General. The applicant questioned how B a politician could instruct the Director-General as an administrator to remove the applicant and why the Director-General would execute the instructions without following prescribed procedures. He wanted to ask the Minister for reasons for removing him. The Director-General replied that the Minister would not give reasons. C

[27] On 4 February 2003 Enver Daniels, the Chief State Law Adviser, was appointed to take over the applicant's responsibilities as the Managing Director of the unit. [5]

[28] According to media reports, the Minister had allegedly hinted that D the applicant had an axe to grind after being rapped over the knuckles for poor work performance. The applicant believed that his performance was a matter that should have been raised by the Director-General, not the Minister. He denied that his performance was ever in question. At his disciplinary enquiry, the Director-General acknowledged that he 'did a E good job' in cleaning up the department and that he 'sent a message of clean and good corporate governance'. [6] In the letter dated 19 February 2003 in which the Director-General gave the applicant notice of his removal to the position of managing director in the office of the Director-General, he assured the applicant that he needed his expertise. [7]

[29] The applicant reported for work daily but was given no work in his F new position.

[30] On the applicant's recommendation, made when he...