35

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

JUDGMENT

Case no: 532/08

In the matter between:

CITY OF TSHWANE METROPOLITAN

MUNICIPALITY Appellant

and

ENGINEERING COUNCIL OF SOUTH AFRICA First Respondent

ADRIANUS JACOBUS WEYERS Second Respondent

Neutral citation: City of Tshwane Metropolitan Municipality v Engineering Council of South Africa and another (532/08) [2009] ZASCA 151 (27 November 2009)

Coram: MPATI P, NAVSA, NUGENT and MLAMBO JJA AND WALLIS AJA

Heard: 16 November 2009

Delivered: 27 November 2009

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

ORDER

On appeal from: High Court at Pretoria (Prinsloo J sitting as court of first instance).

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

JUDGMENT

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

[1] Mr Weyers, the second respondent, is an electrical engineer holding a Masters degree in engineering and registered as a professional engineer with the first respondent in terms of section 18(1)(a)(i) of the Engineering Profession Act, 46 of 2000 (the “EPA”). He has been employed by the appellant since 1996 and since 2003 has held the position of Managing Engineer: Power System Control (PSC). As such he is responsible for Tshwane’s PSC centre the primary function of which is to ensure that correct systems of configuration and safety measures are applied in Tshwane’s high, medium and low voltage networks so as to ensure continuity, quality and safety of electrical supply to all consumers within the metropolitan area.

[2] On 31 August 2005 Mr Weyers addressed a letter to Dr Lukhwareni, the Strategic Executive Officer (SEO) of the Electricity Department, in which he expressed concerns about the employment of new system operators in the PSC centre. He copied the letter to Mr Benny Mahlangu, the General Manager: Electricity Development and Energy Business and to the Municipal Manager. Whilst it is clear that the contents of the letter were not well received, at least by Mr Mahlangu, it is not suggested that there was anything untoward in his addressing the letter to them. However he also sent the letter to the Department of Labour and to the Engineering Council, which is constituted in terms of the EPA and discharges a range of statutory responsibilities, most importantly for present purposes dealing with improper conduct by professional engineers.

[3] On 9 November 2005 Mr Weyers was suspended and disciplinary proceedings were commenced against him. Initially he faced a number of charges, but at the hearing all charges were abandoned other than one ‘that you copied a letter you had written to the SEO Electricity Department to … the Department of Labour and the Engineering Council of South Africa … without authorisation and/or prior approval and/or knowledge of the Head of the Electricity Department’ When he was convicted on that charge, he approached the Pretoria High Court, with the support of the Engineering Council, for an order interdicting the appellant from imposing any disciplinary sanction upon him. That order was granted on the basis that sending the letter to these parties was a protected disclosure under various statutes and as such that it was impermissible for the municipality to impose a disciplinary sanction on Mr Weyers for doing so. This appeal lies against that order with the leave of the court below.

[4] In order to appreciate the circumstances leading up to the sending of the letter and the basis for the claim that its being copied to parties outside the municipality is a protected disclosure it is necessary to give some background based on the facts that are not in dispute between the parties. One of the major functions of the PSC centre is to ensure safe electrical operations on the network. Key employees in this regard are the system operators who are all qualified electricians, who have completed an 11kV switching course,[1] and who have the necessary technical knowledge and skill to undertake this work, which is more complex and potentially more dangerous than the work of an electrician working solely on low voltage systems. All qualified electricians are qualified to work on low voltage networks (400 volts and below) but work on medium and high voltage networks (11kV and 132kV respectively) requires specialist skill and knowledge because of the high levels of danger involved.

[5] The system operators work with the network when it is live at all voltage levels, whilst electricians in the municipality’s Maintenance and Construction depots work on the low voltage and medium voltage sections of the network and then only when they have permission from the PSC centre. Generally (there may be exceptions) they only work on a network when the system is dead and certified to be such by a PSC system operator. The PSC section deals with complaints about electrical shocks; takes steps to prevent power failures in overload conditions and reconnects a network after a power failure. It is accepted that the higher the voltage level in a network the higher the fault level (the energy or ‘spark’ emitted if a fault occurs) and therefore the more potentially dangerous the associated electrical work on such a network. Every time an electrical connection in a network is broken by a switch operation it also creates an electrical spark the size of which is dependent upon the voltage level in the system. The system operators work with high, medium and low voltages.

[6] The electrical work performed by the PSC system operators has considerably greater potential for negative consequences than the work done by electricians in the Maintenance and Construction depots. The latter’s actions may result in the power supply to between one and twenty consumers being affected. Errors by system operators may cause a power failure in an entire suburb or even throughout the municipality.

[7] All of the above is common cause on the papers. There was some dispute whether the work performed by system operators is, as Mr Weyers contends, significantly more dangerous than the work done by electricians in the Maintenance and Construction depots. However, that was not persisted in before us and can be disregarded. On the basis of the matters that are common cause it is an obvious conclusion that the systems operators perform more dangerous work and consequently must be more skilled than ordinary electricians, even if the additional competence is something that can be acquired with training and experience.

[8] Turning then to the circumstances leading up to Mr Weyers writing the letter in question these emerge from the following facts that are either common cause or are no longer in dispute because the appellant no longer seeks to rely on the series of bald and unsupported denials in relation thereto contained in the answering affidavit. The starting point is that in 2005 there was a significant shortfall in the municipality’s complement of system operators with only 13 of the 48 posts specified in the approved structure for the PSC section being filled. In the result those who were so employed were required to perform excessive and dangerous levels of overtime, well in excess of 60 hours a month and sometimes running to as much as 100 hours a month. The municipality accepts that staff was overworked and blamed exhaustion for accidents. In February2005 Mr Weyers was given permission to recruit a foreman and eight additional system operators in order to address this problem.

[9] In late February Mr Weyers and three of his subordinates prepared a test when considering applications for a system operator foreman. This test was approved by Mr Booysen, who was Mr Weyers’ immediate superior, and had been sent to Ms Zaayman, the Deputy Manager: Recruitment and Selection in the human resources department. She returned it with the comment that it asked the right type of question but was possibly a little long. She accordingly said that Mr Weyers should ensure that candidates had sufficient time to answer the test. The test was used to shortlist candidates for the post of foreman in April 2005 and, after interviews had been conducted, led to a Mr von Gordon being appointed. It is plain from the internal e-mails that passed between Mr Weyers, Mr Booysen and Mr Ratsiane, the Manager: Recruitment and Selection in the human resources section of the electricity department, that the last-mentioned was aware that the test had been used to select those who were short-listed and raised no objection to its use as a tool for that purposes.

[10] Applications for the system operators’ posts were considered at the same time as the foreman’s position. The posts were advertised internally and attracted 13 applicants. Mr Weyers decided that the foreman’s test should also be used for the operators because in his view the technical and safety requirements for the positions were the same and the test was directed to these. He discussed this with Mr Booysen, who agreed with him, although one of his subordinates thought the standard might be too high. This was a view he was prepared to accept and his later conduct bears that out. When the initial batch of applicants fared poorly, he suggested that all eight of those who achieved better than 31% should be interviewed, although he qualified that by saying that they ‘may very well constitute a huge risk to Tshwane Electricity and to themselves’ in view of their lack of knowledge. In due course only the four candidates who achieved better than 40% were short-listed by Mr Booysen. This happened on 8 April, but thereafter the forms changed and it was necessary for Mr Weyers to re-submit them, which he did on 24 April, recommending that two candidates be short-listed for the foreman’s position and four for the system operator posts.

[11] The immediate response from Mr Ratsiane was that the shortlists were unacceptable and he asked for a meeting. The problem was that all the persons on the list were white and all the existing foremen and system operators were white. In the result the appointment of those on the lists would not satisfy transformation objectives within the municipality or assist in achieving its goals under the Employment Equity Act.[2] Mr Weyers was clearly aware of this as he dealt with this issue in an e-mail accompanying the list, saying that the employment equity candidates had lacked sufficient technical knowledge of the network to be appointed even when 10% had been added to their marks.

[12] The suggested meeting took place on 10 May in Dr Lukhwareni’s office and was attended by Mr Booysen and Mr Ratsiane amongst others. On 19 May Mr Booysen circulated a summary of the agreement reached at the meeting and a memorandum on further appointments of system operators.[3] The agreement was that 60% of the vacancies would be filled by ‘competent personnel based on training and test results’ and the balance from ‘qualified trainable personnel’. Accordingly four system operator posts were to be filled ‘from the competent group based on test results’; four system operator posts were to be re-advertised and a foreman was to be appointed. The agreement appears to have struck a reasonable balance between the urgent needs of the PSC centre and the pursuit of transformation and employment equity. It had the endorsement of the SEO and Mr Ratsiane from human resources as well as Mr Weyers and his immediate superior. It led to Mr von Gordon being appointed. It also meant that the four white males, identified as the best candidates by the tests, would be appointed. Meanwhile an advertisement was placed in the Pretoria News on 18 May in respect of the posts to be re-advertised.

[13] Although it was submitted that the test became a bone of contention and its appropriateness had been challenged, this did not emerge at that time. Not only was the foreman position filled on the basis of the test,[4] but Mr Booysen’s minute reflects that the test was to be used in the future. In addition had the test been controversial in itself, as opposed to in the results it produced, one would have expected there to be a clear instruction to Mr Weyers and Mr Booysen that it was not to be used in short-listing the candidates for the positions that were to be re-advertised. There is no such instruction. Instead, once the applications were received, the applicants were required to sit the test. It is inconceivable that this would have occurred if the test had been rejected as inappropriate in May 2005. The issue surrounding the test only arose later when Mr Mahlangu came on the scene.

[14] Fifteen employment equity candidates applied for the system operator positions but when they sat the test they performed dismally.[5] With one exception, who with the benefit of an adjustment for employment equity that added 10% to the mark scored 42.22%, they all scored less than 40% and only two managed, with the same adjustment, to score more than 30%. Mr Weyers forwarded the results to Mr Booysen on 29 July and asked for a meeting to discuss a shortlist.

[15] While this was going on an important change occurred in the Electricity Department. Mr Benny Mahlangu was appointed to the position of General Manager: Electricity Development and Energy Business. On 28 July Dr Lukhwareni informed his staff that he had delegated to Mr Mahlangu all transformation responsibilities with regard to human resources. From then on all applications for posts were to be forwarded to Mr Mahlangu who would appoint a committee for short-listing and a committee, chaired by himself, to conduct interviews. The decision of that committee in regard to appointments would be binding. Accordingly Mr Mahlangu would now play the central role in all new appointments.

[16] The impact of this change was immediate insofar as the appointment of system operators in the PSC section was concerned. On 1 August 2005 Mr Booysen sent him the list of applicants for the systems operator posts ‘with test results for approved test’ and the document embodying the agreement reached on 10 May 2005 in regard to these positions. According to Mr Weyers two of his existing operators had resigned by this stage and the need for new appointments had become even more urgent. However, Mr Mahlangu immediately made it clear that he was dissatisfied with what he saw (although there is no indication that either Mr Weyers or Mr Booysen had made any recommendations in regard to short-listing from these applicants) and a meeting was convened on 3 August 2005 attended by Messrs Mahlangu, Booysen, Weyers and some others.