This article was written by Lara Kerbelker, an associate at Norton Rose Fulbright South Africa

The Labour Court recently handed down judgment in a matter where a colonel in the SAPS was transferred to a functionally non-existent post after he exposed corruption in the unit.

Colonel Roos was employed as an internal auditor in the Crime Intelligence Division of the SAPS.  He was appointed to conduct an investigation into fraud and corruption in the Secret Service Account by the Head of Crime Intelligence.  After Colonel Roos disclosed proof of wide ranging corruption, his investigation was abruptly stopped, and he was transferred to a new division, in which he was given no work.

In South Africa, whistle-blowers are afforded specific protection in terms of the Protected Disclosures Act.  A dismissal on account of the employee having made a protected disclosure is automatically unfair, and occupational detriments other than dismissal on account of a protected disclosure constitute an unfair labour practice.

Disclosures by employees are protected when they are made in good faith, and in accordance with any procedure prescribed by the employer.  Kinds of protected disclosures include:

  • Information relating to criminal offences
  • The failure to comply with legal obligations
  • Miscarriages of justice
  • Dangers to health or safety
  • Damage to the environment
  • Unfair discrimination
  • The concealment of any such issues

Although the SAPS had opposed the matter, it was forced to concede liability when its two principal witnesses were unavailable to testify.  The court was therefore only required to determine the compensation to be awarded.

The court held that the disclosure made by Colonel Roos was central to his official functions and duties as head of Internal Audit of Crime Intelligence.  Colonel Roos had conducted himself with scrupulous discretion in disclosing the outcome of his investigations to his superiors and other investigative arms of the SAPS.  He was obedient to his superiors when instructed to stop the investigations, even though the only plausible reason for doing so was to neutralise his activities.

The court held further that Colonel Roos had been placed in a state of internal exile in the Crime Intelligence Division, with the obvious aim of preventing him from conducting further investigations.  Colonel Roos was effectively idle in the new position, a situation which he endured for nearly four years.

As compensation for loss of relevant work experience, the court awarded an amount of R15 000 per year, for each year in which Colonel Roos had occupied the redundant position.  The court also awarded an amount of R100 000 as compensation for subjecting Colonel Roos to punitive measures, and the improper motives for which this was done.  Additionally, the SAPS was ordered to redeploy Colonel Roos to a similar position to the one he had occupied prior to his transfer.

 

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