The National Institute for the Humanities and Social Sciences v Kibiti Lephoto and Another

The respondent was appointed as Chief Financial Officer of the National Institute for the Humanities and Social Sciences (NIHSS) on a five‑year fixed‑term contract subject to a 12‑month probation period. During probation, tensions arose between him and the CEO regarding performance, reporting, authorisation of payments, and financial management. The respondent submitted a document to the Board alleging improprieties by the CEO, namely a ‘questionable relationship’ with a Deloitte Consulting representative and alleged breaches of supply chain management laws, which he claimed constituted a protected disclosure under the Protected Disclosures Act 26 of 2000 (PDA). An independent investigator (Mr Charles Nupen) was appointed and found no substantiated impropriety by the CEO, concluded that the PFMA did not apply to NIHSS, and found an irreconcilable breakdown of trust caused largely by the respondent’s conduct and unsubstantiated allegations. The respondent’s probation was not confirmed and his employment was terminated. He claimed the dismissal was automatically unfair as an occupational detriment following a protected disclosure. The Labour Court upheld his claim, finding a protected disclosure and ordering reinstatement and compensation. NIHSS appealed to the Labour Appeal Court.

The appeal was upheld. The Labour Court’s order was set aside and replaced with an order dismissing the respondent’s claim.

The case clarifies the limits of protection under the Protected Disclosures Act and warns against its misuse by employees seeking to shield themselves from legitimate performance management or dismissal. It affirms that disclosures must be based on applicable law, reasonable belief, and substantiated facts, and that incorrect reliance on inapplicable legislation cannot found PDA protection.