Klass Looch Associates

Employer OHS Champion since 1986 

Engineering Council of SA & another v City of Tshwane Metropolitan Municipality & another [2008] (T)

Mini Summary

The second applicant was an engineer registered with the first applicant, a professional body registered under section 18 of the Engineering Profession Act 46 of 2000 ("the EPA"). In his position as Managing Engineer: Power System Control ("PSC") with the first respondent, a local authority, he had refused to co-operate with the appointment of certain black people who had obtained excessively low marks in performance tests which were part of the selection process. He considered, inter alia, that it would be a danger to the public to appoint them as PSC operators. Conflict developed between the first applicant and one the municipality's General Managers who had informed the first applicant that, given the employment equity numbers, candidates who "did not comply with equity requirements" would "not be listed at all". As a result certain appointees were removed from the list. In response the second applicant raised his concerns with other officials and warned them of his intention to report the matter to the Department of Labour, which he did. In addition he asked to be relieved of his duties under regulation 2(7) promulgated under the Occupational Health and Safety Act 85 of 1985 ("OHSA") related to an obligation to ensure various safety requirements. A few months later he was called before a disciplinary enquiry where he was charged with misconduct for writing the letter to the Department of Labour "without authority". When the matter was postponed the applicants approached the high court for urgent interim relief to interdict the respondents from proceeding with the hearing pending the outcome of this application for a final interdict to restrain the respondents from imposing disciplinary sanction on the second applicant. His defence against the charge of misconduct was that he had had a duty to make the disclosure, which was protected under the EPA, the OHSA and the Protected Disclosures Act 26 of 2000 ("the PDA"). Held that in terms of section 39(2) of the EPA a registered person who, in the public interest, refuses to perform an act, or informs the council or other appropriate authority of an act performed by any other person which is likely to endanger the health or safety of the public or fellow employees, is not liable for that refusal, omission or information. In addition, section 26 of the OHSA

Full Law Report upon application.