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Whistleblowing policy and procedure
1.1
WHISTLEBLOWING POLICY
1.1.1
WHISTLEBLOWING PROCEDURES
1.1.2
RAISING CONCERNS
1.1.3
RESPONSIBILITY FOR DEALING WITH CONCERNS
1.1.4
TIMESCALES FOR DEALING WITH CONCERNS
1.1.5
PROTECTION FOR THE STAFF
1.1.6
COMMUNICATION AND REVIEW OF PROCEDURES
1.2
ANNEXURE A
1
2
2
3
4
4
6
7
1.1
15
WHISTLEBLOWING POLICY
Members of staff are usually amongst the first to realise that there may be some
unlawful or irregular conduct by the Company or other employees in the employ of
the Company. However, they may not express their concerns because they feel that
speaking up would be disloyal to their colleagues or to their employer. They may also
fear harassment or victimisation. In these circumstances, it may be easier to ignore
the concern rather than report what may just be a suspicion of malpractice or
unlawful or irregular conduct.
This view is also sometimes reinforced by the negative connotations associated with
"whistleblowing", a term used to describe the reporting of irregular or illegal conduct
by the Company or other employees.
Even so, the immense harm which can be done not only to the Company but to other
employees and other stakeholders by failing to disclose such conduct has been
demonstrated in recent high profile corporate collapses, such as the recent Enron
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case. On the other hand regulating the disclosure of possible irregular or illegal
conduct is equally important to ensure that the reputation and public image of the
Company or character and reputation of individual employees is not damaged
through disclosure of alleged irregular or illegal conduct which may turn out to be
false, unsubstantiated or misleading.
Therefore, the Company recognises the need for and importance of whistleblowing
as a means of ensuring that staff can raise issues of concern and conscience
confidentially inside the organisation, and to encourage members of staff to raise
genuine concerns about malpractice at the earliest practicable stage.
This policy and procedure is, accordingly, intended to provide a safeguard to enable
members of staff to raise concerns about one or more of the following examples as
set out in The Protected Disclosures Act [Act No. 26, 2000]
WHISTLEBLOWING PROCEDURES
1.1.2
RAISING CONCERNS
Any person wishing to raise concerns, in a confidential manner, about such matters
as fraud and financial irregularities; serious maladministration arising from deliberate
improper conduct; miscarriages of justice; failure to comply with legal obligations;
unethical activities that may be of a criminal nature; or dangerous acts or omissions
that create a risk to health, safety or the environment within the sphere of activities of
the Company, should report the matter to the [specify person in the Company to whom
report must be made]1. In the event that the concerns relate to the "Officer", they
should be reported to the [____________] of the Company.
1
Human Resources Director / Financial Director / Managing Director etc You may elect to nominate a
representative of an Audit Committee (if your company / organisation has such a committee) or to an
external party designated for this purpose. For purposes of this draft policy, the title of "Officer" is
used.
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Appointed Officer2
Name
Address
Contact
Telephone
Email
:
:
:
:
:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
Responsibility for dealing with any concerns reported will lie with the "Officer" to the
Company who will have access to the members of the [Executive Committee /
Management Committee / Audit Committee / Governing Body]. Where members of the
"Governing Body" have individually been involved in an investigation, they shall be
excluded from later membership of any disciplinary panel that may be convened as
part of subsequent action under the Company's Disciplinary Procedure.
The "Officer", in consultation with members of the Governing Body shall have
discretion over the nature of investigation of the concern raised including, where it is
considered appropriate, the involvement of internal or external audit. If there is
evidence of criminal activity, the Police will be informed.
1.1.4
Your company may elect to set up an anonymous 086 reporting line in which these procedures may
need to be adapted to include details of this service.
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The "Officer" will endeavour to deal with reported concerns as quickly as possible.
Initially, the "Officer" will acknowledge, in a confidential manner, receipt of the
concern being raised. Because of the nature and type of concerns that may be
raised through whistleblowing, it is not possible to set time limits for the completion of
investigations.
However, the "Officer" will ensure that in all cases an initial
investigation will start within 5 working days of a concern being reported.
The Company will take all reasonable and practical steps to minimise any difficulties
which you may experience as a result of raising a concern. For instance, if it
becomes necessary to give evidence in criminal or disciplinary proceedings, the
Company will advise you about the procedure and give whatever practical support is
possible.
The Company accepts that you need to be assured that the matter has been
properly addressed. This feedback will normally be provided within five working days
of the outcome of the investigation being determined. Subject to legal constraints,
you will receive information about the outcomes of any investigations. This will not
include details of any disciplinary action which will remain confidential to the
individual(s) concerned.
The Officer will ensure that the person reporting the concern is advised in writing of
progress made in investigating the concern, and in particular:
1.1.5
Staff will often be unsure as to whether or not misconduct is taking place. The
Company will take any steps necessary to ensure that those who raise concerns in
accordance with these procedures are protected from bullying or victimisation by
fellow workers.
A Member of Staff will never be disciplined for raising a concern so long as they
follow the Whistleblowing Procedure or make disclosures in accordance with the
Protected Disclosures Act (Act No, 26 of 2000). However, disciplinary action could be
taken if someone used the Whistleblowing Procedures to raise false concerns in bad
faith. The "Officer" shall decide whether disciplinary action is to commence save in
cases where such action relates to a senior postholder the decision shall be taken by
the Chair of the Board who shall then be precluded from any involvement in any
subsequent investigation or action under the Disciplinary Procedure following his/her
exercise of such decision.
The Company will regard a member of staffs actions as legitimate if they have:
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had reasonable grounds for believing that the information disclosed indicates the
existence of one or more of the following:
- that a criminal offence has been committed, is being committed, or is likely to
be committed;
- that a person has failed, is failing, or is likely to fail to comply with any legal
obligation to which they are subject;
- that a miscarriage of justice has occurred, is occurring or is likely to occur;
- that the health and safety of any individual has been, is being or is likely to be
damaged.
that information tending to show any matter falling within any one of the
preceding examples has been, is being or is likely to be deliberately concealed.
1.1.5.1
Untrue allegations
The Company recognises that employees may wish to seek advice and be
represented by their trade union(s) representatives when using the provisions of this
policy and acknowledges and endorses the role trade union officials play in this area.
1.1.5.3
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The Officer will ensure that the procedures have been widely distributed and
communicated to all staff and that appropriate staff and executive awareness
measures and activities are introduced by the Company. The Officer will report to the
Governing Body with regard to the effectiveness of these measures.
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1.2
ANNEXURE A
:
:
:
:
:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
Please ensure that the "Officer" acknowledges receipt of this form and that you retain
a copy thereof for record purposes.
Personal Details
Name
Department
Confidential contact number
:
:
:
_______________________________
_______________________________
_______________________________
If you do not feel able to put your concern in writing at this point, you can telephone
or meet the appropriate officer. However, at some stage your concern will need to be
put in writing although you may do this through your representative
Set out following:Background and history of the concern, giving names, dates and places where
possible,
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
Specify the reason why you are particularly concerned about the situation.
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
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Specify any specific concerns you may have regarding making this disclosure (for
example, fear of victimisation or other occupational detriment) and what the
Company may do to ensure that you are afforded appropriate protection
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
This policy encourages you to put your name to your allegation. A concern
expressed anonymously is much less powerful and it is often difficult to amass
sufficient evidence and check it out. It is perhaps more likely that malicious
allegations will be made anonymously. You may be able to keep your identity
confidential without being anonymous. However, anonymous allegations will be
considered at the discretion of the Officer.
Name of complainant
______________
Name
___________________
Signature
_____________
Date
___________________
Signature
_____________
Date
Representative
______________
Name
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___________________
Signature
_____________
Date
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the-Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines
the rights of all people in the Republic and affirms the democratic values of human
dignity, equality and freedom;
section 8 of the Bill of Rights provides for the horizontal application of the rights in the Bill
of Rights, taking into account the nature of the right and the nature of any duty imposed
by the right;
criminal and other irregular conduct in organs of state and private bodies are detrimental
to good, effective, accountable and transparent governance in organs of state and open
and good corporate governance in private bodies and can endanger the economic
stability of the Republic and have the potential to cause social damage;
neither the South African common law nor statutory law makes provision for mechanisms
or procedures in terms of which employees may, without fear of reprisals, disclose
information relating to suspected or alleged criminal or other irregular conduct by their
employers, whether in the private or the public sector;
every employer and employee has a responsibility to disclose criminal and any other
irregular conduct in the workplace;
every employer has a responsibility to take all necessary steps to ensure that employee~
who disclose such information are protected from-any reprisals as a result of such
disclosure;
And in order to
create a culture which will facilitate the disclosure of information by employees relating to
criminal and other irregular conduct in the workplace in a responsible manner by
providing comprehensive statutory guidelines for the disclosure of such information and
protection against any reprisals as a result of such disclosures;
promote the eradication of criminal and other irregular conduct in organs of state and
private bodies,
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(i)
(ii)
employee means
(a)
any person, excluding an independent contractor, who works for another
person or for the State and who receives, or is entitled to receive, any
remuneration; and
(b)
any other person who in any manner assists in carrying on or conducting the
business of an employer;
(iii)
(iv)
impropriety means any conduct which falls within any of the categories referred to
in paragraphs (a) to (g) of the definition of disclosure, irrespective of whether or not
(a)
the impropriety occurs or occurred in the Republic of South Africa or
elsewhere; or
(b)
the law applying to the impropriety is that of the Republic of South Africa or of
another country;
Minister means the Cabinet member responsible for the administration of Justice;
(v)
(vi)
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(i)
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Remedies
4. (]) Any employee who has been subjected, is subject or may be subjected, to an
occupational detriment in breach of section 3, may
(a) approach any court having jurisdiction, including the Labour Court established by section
15 I of the Labour Relations Act, 1995 (Act No. 66 of 1995), for appropriate relief or
(b) pursue any other process allowed or prescribed by any law.
(2) For the purposes of the Labour Relations Act, 1995, including the consideration of any
matter emanating from this Act by the Labour Court
(a) any dismissal in breach of section 3 is deemed to be an automatically unfair dismissal as
contemplated in section 187 of that Act, and the dispute about such a dismissal must follow
the procedure set out in Chapter VIII of that Act; and
(b) any other occupational detriment in breach of section 3 is deemed to be an unfair Iabour
practice as contemplated in Part B of Schedule 7 to that Act, and the dispute about such an
unfair labour practice must follow the procedure set out in that Part: Provided that if the
matter fails to be resolved through conciliation, it may be referred to the Labour Court for
adjudication.
(3) Any employee who has made a protected disclosure and who reasonably believes that
he or she may be adversely affected on account of having made that disclosure, must, at his
or her request and if reasonably possible or practicable, be transferred from the post or
position occupied by him or her at the time of the disclosure to another post or position in the
same division or another division of his or her employer or, where the person making the
disclosure is employed by an organ of state, to another organ of state.
(4) The terms and conditions of employment of a person transferred in terms of subsection
(2) may not, without his or her written consent, be less favorable than the terms and
conditions applicable to him or her immediately before his or her transfer.
Protected disclosure to legal adviser
5. Any disclosure made
(a) to a legal practitioner or to a person whose occupation involves the giving of legal advice;
and
(b) with the object of and in the course of obtaining legal advice, is a protected disclosure.
Protected disclosure to employer
6. (1) Any disclosure made in good faith
(a) and substantially in accordance with any procedure prescribed, or authorised by the
employees employer for reporting or otherwise remedying the impropriety concerned; or
(b) to the employer of the employee, where there is no procedure as contemplated in
paragraph (a), is a protected disclosure.
(2) Any employee who, in accordance with a procedure authorised by his or her employer,
makes a disclosure to a person other than his or her employer, is deemed, for the purposes
of rhis Act, to be making the disclosure to his or her employer.
Protected disclosure to member of Cabinet or Executive Council
7. Any disclosure made in good faith to a member of Cabinet or of the Executive Council of a
province is a protected disclosure if the employees employer is
(a) an individual appointed in terms of legislation by a member of Cabinet or of the Executive
Council of a province;
(b) a body, the members of which are appointed in terms of legislation by a member of
Cabinet or of the Executive Council of a province; or
(c) an organ of state falling within the area of responsibility of the member concerned.
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(4) For the purposes of this section a subsequent disclosure may be regarded as a
disclosure of substantially the same information referred to in subsection (2)(c) where such
subsequent disclosure extends to information concerning an action taken or not taken by
any person as a result of the previous disclosure.
Regulations
10. (1) The Minister may, after consultation with the Minister for the Public Service and
Administration, by notice in the Gazette make regulations regarding
(a) for the purposes of section 8(1), matters which, in addition to the legislative provisions
pertaining to such functionaries, may in the ordinary course be referred to the Public
Protector or the Auditor-General, as the case may be;
(b) any administrative or procedural matter necessary to give effect to the provisions of this
Act; and
(c) any other matter which is required or permitted by this Act to be prescribed.
(2) Any regulation made for the purposes of section 8(I)(c) must specify persons or bodies
and the descriptions of matters in respect of which each person or body is prescribed.
(3) Any regulation made in terms of this section must be submitted to Parliament before
publication thereof in the Gazette.
(4) (a,) The Minister must, after consultation with the Minister for the Public Service and
Administration, issue practical guidelines which explain the provisions of this Act and all
procedures which are available in terms of any law to employees who wish to report or
otherwise remedy an impropriety.
(b) The guidelines referred to in paragraph (a) must be approved by Parliament before
publication in the Gazette.
(c) All organs of state must give to every employee a copy of the guidelines referred to in
paragraph (a) or must take reasonable steps to bring the relevant notice to the attention of
every employee.
Short title and commencement
11. This Act is calIed the Protected Disclosures Act, 2000, and commences on a date 25
determined by the President by proclamation in the Gazette.
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[5] On 4 April 2003, the Second Applicant circulated an e-mail to a group of persons,
some of whom had attended the meeting on 1 April 2003. The email is the
communication relied on by the Applicants as a protected disclosure, and for that
reason, it is quoted in full Hi Moosa/Norman
I would like to raise a open secret concern to your office. In December MTN 173 GP
has recruited an number of staff via the following Agencies who are proffered
suppliers, Thlafang, Hola, NAPS, Ikwesi and Quest. From this recruitment we saw
most of Naps, and Hola and Kwesi people coming through but NAPS was leading
the pack. All agencies had Intakes coming through nevertheless, but I should say
upfront that except for Hola and NAPS, the agencies representatives where no
where to be seen on the day of the recruitment. We had Kopano from Thlalefang
continuously calling Vusimusi Masilela about how many candidates where taken
from each agency, and after this disturbing situation we where told that there is a
supervisor or supervisors who gave NAPS a scandal to have their agents taken in
large numbers and some should come forward and confess to avoid any sanction.
We later told that an investigation is going forth. That is fine and has been accepted
by all of us. But what is surprising that Thlalefang has been having 100% of its
candidates being taken all over CS from KZN, PLK to GP. No such investigation
were conducted against supervisors, no concerns were raised by other agencies
about how many recruits from each agency was done by individual agencies and
business business risk was never brought to see this abnormality. We have currently
recruited last week agents from Thlalefang only and they are now in training, the
issue here is is this not bias shown to one agency, if so why. Should other agencies
suffer because Tlhaklefang did not do a proper job on their candidates the last time?
If so why is the same not done to other agencies in PLK, and KZN where
Thlalegfang is in a big number. The person or persons who lodged a complain, why
are they not complaining now. Who are these faceless complainants?
Personally I smell a rat and think that there are senior people senior than us, who
are losing revenue if Thlalefang is not placing agents at MTN thus the justification
not to make staff permanent. They want to continue being fat cats and eating. This
email is prompted by the meeting we had as supervisors and management to raise
issues of concern in running our business. It was noted in that meeting that this
email shall be sent out to raise these issues. I propose a large scale investigation on
the issue of agencies and I please let this be noted that if it not handled properly the
scorpions maybe engaged to conduct and investigation.
[6] The persons who whom the e-mail was addressed are engaged in MTNs
Business Risk Unit. It is not disputed that these persons aside, the e-mail was
circulated to persons who had attended the meeting held on 1 April 2003 and
blindcopied to other MTN employees, including the Chief Executive Officer and the
Commercial Director.
[7] On 7 April 2003, the Second Applicant, having received no response to his e-mail
sent on 4 April, sent a second e-mail.
[8] On 11 April 2003, the Second Applicant was handed a notice of suspension, and
advised that he would be required to attend a disciplinary hearing on 17 April 2003.
On 14 April 2003, a charge sheet was handed to the Second Applicant. The charges
against him are recorded as
1. That you intentionally, deliberately circulated an e-mail insinuating that
management of MTN are corrupt and/or colluding with various employment agencies
in corrupt activities.
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together with the admitted facts in the Applicants affidavits justifies such an order,
unless the Court is justified in rejecting the allegations or denials by the Respondent
on the papers. (See Plascon-Evans Paints v Van Riebeek Paints 1984 (3) SA 623(A)
at 634-F to 635-D.).
[14] Mr Pretorius SC, who appeared for MTN, submitted that the order sought by the
Applicant was in effect a final interdict, albeit one that would operate for a limited
period. It was consequently necessary, he submitted, for the Applicants to satisfy the
test established by Plascon-Evans. A final interdict is a final determination of the
rights of the parties. It is intended to secure the permanent cessation of an unlawful
course of conduct. The Second Applicant has been suspended and has been notified
that he is to attend a disciplinary enquiry. These actions are the subject of the referral
of a dispute to the CCMA, and may well be referred to this Court in due course if
conciliation fails to resolve the dispute. In that sense, these proceedings are not
directed at a final determination of the rights of the parties. However, if the order
sought by the Applicants were to be granted, MTN would be precluded from
proceeding with a disciplinary enquiry on the basis that the threat of an enquiry had
been found to constitute an occupational detriment. In that sense, the order sought
by the Applicants would amount to a final declaratory order to the effect that the
Second Applicant has suffered an occupational detriment consequent on a
disclosure that is protected by the PDA, even if it is only to operate pending a final
determination by this Court of an unfair labour practice dispute. Be that as it may, I
intend to deal with the matter as an application for an interim interdict and to apply
the approach in Webster v Mitchell.
[15] Section 4 of the PDA provides that for the purposes of the Labour Relations Act,
66 of 1995 (the LRA) any dismissal in breach of the requirement that employees
may not be subject to an occupation detriment by an employer, is an automatically
unfair reason for dismissal. Any other occupational detriment in breach of the same
obligation is deemed to be an unfair labour practice for the purposes of the same
Act. With effect from 1 August 2002, the LRA was amended to incorporate these
provisions into Chapter VIII of that statute.
[16] An occupational detriment is defined in section 1 of the PDA. In relation to the
working environment of an employee, the definition includes being subject to any
disciplinary action, or being dismissed, suspended, demoted, harassed or
intimidated, or being threatened with any of these actions.
[17] Disclosure is also defined in section 1 of the PDA. The definition reads as
follows disclosure means any disclosure of information regarding any conduct of an
employer, or an employee of that employer, made by any employee who has reason
to believe that the information concerned shows or tends to show one or more of the
following:
(a) That a criminal offence has been committed, is being committed or is likely to be
committed;
(b) that a person has failed, is failing or is likely to fail to comply with any legal
obligation to which that person is subject;
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur; .
(d) .
[18] Section 6 of the PDA protects employees who make protected disclosures to
their employers. Subsection (1) reads as follows Any disclosure made in good faith-
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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.
[22] I am satisfied that in this instance, the Second Applicants communications on 4
and 7 April 2003 fail to meet the conditions for protection established by the PDA.
The disclosure relied on by the Second Applicant as a protected disclosure was no
more than an expression of a subjectively held opinion or an accusation, rather than
a disclosure of information. It is clear from the judgment in Grieve v Denel that the
disclosure considered worthy of protection in that instance was a disclosure of
information that on a prima facie basis at least, was both carefully documented and
supported. The disclosure was clearly indicative of a breach of legal obligations and
possibly criminal conduct on the part of the employer concerned. In the present
instance, the only information proffered by the Second Applicant (and this was
conceded by his counsel) was that contained in his email dated 4 April 2003, and in
particular his statement to the effect that Thlalefang was being used as a sole
agency to supply temporary employees. There is no factual basis, however tenuous,
in any of the Second Applicants communications to justify the conclusion that they
constituted anything other than his personal opinion that what appears to amount to
a preferred supplier arrangement was improper. There is no information offered that
indicates in the slightest any impropriety on the part of any member of MTNs
management. The statement
Personally, I smell rat and think that there are people senior than us who are losing
revenue if Thalefang is not placing agents at MTN and thus the justification not to
make staff permanent.
is not a disclosure of information rather than an unfortunately phrased expression of
the Second Applicants personal views.
[23] A further relevant consideration is the fact that the information (such as it was)
contained in the Second Applicants email had been communicated to a general
meeting prior to its transmission on MTNs computer network. The PDA
contemplates and protects disclosures made in private rather than in public. This is
obvious given the potential damage to the reputation of persons against whom
allegations are made, an and integral element of the balance between the protection
of rights to reputations and the protection of free speech in the workplace.
[24] Finally, there is the related matter of the procedure adopted by the Second
Applicant in making the disclosure on which he relies. The PDA seeks to balance an
employees right to free speech, on a principled basis, with the interests of the
employer. The requirement that a disclosure be made through an authorised channel
is an integral element in structuring this balance. The PDA accordingly establishes
as a condition for protection that a disclosure be made in accordance with a
procedure that is either established or authorised. The evidence in these
proceedings discloses the establishment by MTN of an elaborate system for the
reporting of allegations of fraud, including a confidential hot line. Commendable as
the procedures established by MTN might be, it is not disputed that the Second
Applicant was advised at the meeting held on 1 April 2003 that he should raise the
matter of the alleged preference accorded to Thalefang with the Business Risk Unit.
The Second Applicant sought a wider audience. He addressed his email to his peers
and members of MTNs senior management. As I have noted above, the requirement
of disclosure through an authorised channel is an important component of the
protection accorded to whistleblowers. There is a difference between the nature and
extent of the protections afforded to internal as opposed to external disclosure. As I
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have noted above, an internal disclosure does not require a reasonable belief that
the information disclosed tends to show that any wrongdoing has occurred. A
reasonable belief that any allegation is substantially true is a condition for the
protection of any external disclosure. By requiring substantial compliance with a
prescribed or an authorised procedure, if information disclosed by an employee turns
out to be unfounded, little if any damage will have been done to the external
reputation of the employer or persons against whom allegations have been made. By
failing to comply with the procedure prescribed and/or authorised by MTN for the
further investigation of his allegations, the Second Applicant removed himself from
the ambit of the protection granted by the PDA.
[25] The statements that the Applicants submit constitutes a protected disclosure do
not, for the purposes of these proceedings and on the papers before me, constitute a
protected disclosure contemplated by the PDA. This is not to say that for the purpose
of any unfair labour practice proceedings, after the leading of evidence that is
subjected to cross-examination, a different conclusion might not be justified. For the
purposes of this application however, the Applicants have failed to establish a clear
right, even one that is open to some doubt.
[26] I make the following order:
1 The Rule Nisi issued on 16 April 2003 is discharged, with costs.
________________________________
ANDRE VAN NIEKERK
Acting Judge of the Labour
Date of hearing: 8 May 2003
Date of judgment: 26 May 2003
Counsel for Applicant: Mr C Orr
Attorneys for Applicant: Cheadle Thompson Haymsom Inc
Counsel for Respondent: Mr P Pretorius SC
Mr K Lengane
Attorneys for Respondent: Webber Wentzel Bowens
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