Whistleblown away: When ethics trump internal discipline

In a landmark decision handed down by the Labour Court of South Africa on 1 July 2025, Judge Daniels granted final relief to Masixole Bangeni, a provincial manager at the Local Government SETA, effectively halting an internal disciplinary hearing against him. The case underscores the protective power of the Protected Disclosures Act and the procedural obligations under section 188A(11) of the Labour Relations Act. It offers critical lessons for both employers and employees navigating whistleblowing and disciplinary processes.

Legal implications

The court’s ruling has far-reaching legal consequences, particularly in the context of whistleblower protection and procedural fairness in disciplinary matters.

• Bangeni’s act of emailing a payment invoice and proof of payment to his private email and later sharing it with his attorney was deemed a protected disclosure under the Protected Disclosures Act (PDA). The court clarified that even if the Auditor-General had already flagged the information, the subsequent payment to PKNT Risk and Governance constituted new and troubling conduct.
• The court reaffirmed that once an employee alleges in good faith that a disciplinary inquiry contravenes the PDA, the employer is obligated to refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). The internal disciplinary process must be terminated. This provision is not discretionary; it is peremptory.
• Disciplinary action taken against Bangeni was found to be retaliatory and therefore unlawful. The court emphasised that even if the disciplinary charges are “partly on account of” the disclosure, they constitute an occupational detriment prohibited by the PDA.
• The court ordered the respondent to pay Bangeni’s legal costs, noting that the opposition was feeble and amounted to an abuse of process, especially given that public funds were used.

Key takeaways

For employers

• Know the law: Employers must understand and respect the provisions of the PDA and section 188A(11) of the LRA. Failure to do so can result in costly litigation and reputational damage.
• Avoid retaliation: Disciplinary action that follows a protected disclosure, even if it is indirect, can be construed as retaliatory and unlawful.
• Respect whistleblowing channels: Employers must ensure that whistleblowing policies are not only in place but also aligned with statutory protections, including the right to disclose to legal representatives.

For employees

• Use legal channels wisely: Disclosing information to a legal practitioner for advice is protected under the PDA. Employees should document such disclosures clearly.
• Act in good faith: The protection under the PDA hinges on the employee acting in good faith. The court will assess this contextually.
• Invoke section 188A(11) promptly: Employees have the right to demand that disciplinary hearings be conducted via the CCMA if they believe their disclosure is protected. This right is enforceable and not subject to employer discretion.

Final thoughts

This case is a powerful reminder that ethical conduct and legal protections must prevail over internal politics and procedural shortcuts. The Labour Court’s decision reinforces the importance of transparency, accountability and the rule of law in employment relations. Employers must tread carefully when dealing with whistleblowers, and employees must be aware of their rights and the proper channels for disclosure.

In a time when integrity in public institutions is under scrutiny, this judgment sends a clear message: whistleblowers are not to be punished; they are to be protected.

For advice or more information, please contact Riona Kalua, head of our Labour and Employment team.