THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 680/2010
In the matter between:
HARRY MATHEW CHARLTON
Appellant
and
PARLIAMENT OF THE REPUBLIC OF
SOUTH AFRICA                                                                              Respondent

Neutral Citation:  Charlton v Parliament of the Republic of South Africa
(680/2010) [2011] ZASCA 132 (16 September 2011)
Coram:
BRAND, VAN HEERDEN, MAYA, MHLANTLA JJA et
MEER AJA
Heard:
23 August 2011
Delivered:
16 September 2011
Summary:
Dismissal of exception — principles governing appealability
restated — same principles apply in Labour Court and
Labour Appeal Court.

ORDER

On appeal from: Labour Appeal Court (Patel JA, Waglay ADJP and Tlaletsi
AJA sitting as a court of appeal):

(a) The appeal is upheld with costs, including the costs of two counsel, where
applicable.
(b) The order of the Labour Appeal Court is set aside and replaced with the
following:
‘The appeal is struck from the roll with costs, including the costs of two
counsel.’

JUDGMENT

VAN HEERDEN JA (BRAND, MAYA AND MHLANTLA JJA AND MEER
AJA concurring)
[1] This appeal relates to several exceptions raised by the respondent,
Parliament of the Republic of South Africa (Parliament), to the appellant’s
(Charlton’s) claim for unfair dismissal under the Labour Relations Act 66 of
1995 (LRA). Charlton was the Chief Financial Officer to Parliament from 1
May 2002 (initially on a three-year fixed term contract, permanently appointed
from 1 March 2004).  He held this position until his purported dismissal on 13
January 2006, ostensibly on the grounds of work-related misconduct. He
however insists that he was dismissed for being a whistleblower in relation to
fraud perpetrated by Members of Parliament (Members) in respect of claims for

their travel benefits. His allegations pertain to what has nationally and popularly
become known as the ‘Travelgate scandal’. These allegations, and the
background that follows, appear from his statement of claim which, by the
nature of exception proceedings, we must accept as true.
[2] In about December 2002, Charlton informed the incumbent Secretary to
Parliament, Mr Mfenyana (Mfenyana), of the discovery within the Financial
Management Office of an alleged improper travel benefits claim by a Member
of Parliament. With Mfenyana’s approval, Charlton investigated the matter
further. In April 2003, Charlton submitted a written report to Parliament
(represented by Mfenyana and the Senior Presiding Officers of Parliament,
namely the Speaker of the National Assembly and the Chairperson of the
National Council of Provinces) that there was prima facie evidence of fraud
having been perpetrated on Parliament by, inter alia, certain travel agents, in
relation to travel entitlements of Members.
[3] In the course of Charlton’s investigations (carried out on the authority of
the above-mentioned Presiding Officers and including a forensic investigation
by PricewaterhouseCoopers), Charlton formed the view that the said fraud had
been perpetrated on a very large scale, that Members had benefitted improperly
from and/or were implicated in the fraud and that a member of staff in the
Parliamentary Service was also implicated.
[4] Charlton remained actively involved in pursuing the matter and made a
series of detailed written and oral reports to the Secretary of Parliament and the
Senior Presiding Officers, informing them of the processes followed and the
emerging details of the travel fraud. The list of current and past Members in
respect of whom such information was disclosed to Parliament numbered in the
hundreds. The South African Police Service, the Scorpions and the National
Prosecuting Authority were also involved in the investigation.

[5] According to Charlton, during the period up to April 2004, he enjoyed
the support of Parliament in his pursuit and investigation of the travel fraud. As
at 31 March 2004, the investigation had identified fraud on Parliament in the
amount of   R13 million perpetrated over a 15-month period.
[6] After the April 2004 elections, the previous Senior Presiding Officers
departed and Mr Dingani (Dingani) replaced Mfenyana as Secretary. According
to Charlton, from the time of Dingani’s appointment, Parliament’s support for
Charlton and for the investigation and pursuit of the travel fraud declined
substantially. So, for example, Charlton reported to Dingani that another
dimension to the travel fraud (referred to by Charlton as ‘Type 3 fraud’) had
been identified, which would involve an increase in Parliament’s total likely
claim from R16.5 million to R35.7 million, and which would implicate
prominent current and former Members and/or office bearers of Parliament.
Charlton also furnished Dingani with detailed lists of the Members concerned.
According to Charlton, Dingani effectively frustrated the conduct of a proper
investigation into this Type 3 fraud, inter alia, by not making the external
resources required for such investigation available to him.
[7] A further example (amongst many) given by Charlton was to the effect
that Dingani was allegedly placed in possession of prima facie evidence that
certain Ministers and another high-ranking official had improperly benefitted
from travel facilities, but failed to cause such information to be further
investigated, recommending only that the persons involved repay the applicable
amounts.
[8] In summary, Charlton alleged that, from August 2004 to the date of his
dismissal on 13 January 2006, Parliament failed to take appropriate action in
regard to the finalisation of the travel fraud issue. The allocated budget and
resources were inadequate given the number of transactions, and the number of

Members potentially involved (the names of whom had been furnished to
Parliament by Charlton) exceeded by far the number charged or convicted.
[9] On 18 November 2005, Parliament suspended Charlton from his
employment without any prior hearing. A disciplinary enquiry into the various
charges of alleged misconduct against him was conducted between 12 and 21
December 2005. The disciplinary enquiry recommended his dismissal. On 13
January 2006, Dingani accepted this recommendation and summarily dismissed
Charlton.
[10] Charlton challenged his dismissal. In his amended statement of claim in
the Labour Court (LC), he relied on five causes of action:
i) his dismissal was automatically unfair in terms of s 187(1)(h) of the LRA
because he was dismissed for having made protected disclosures as envisaged in
the Protected Disclosures Act 26 of 2000 (PDA) – ‘the first cause of action’;
ii) his dismissal was automatically unfair in terms of the introductory portion of
s 187(1) of the LRA, read with s 5(2)(c)(v) of the LRA, because he was
dismissed for having made disclosures that he was lawfully entitled or required
to make in his capacity as Chief Financial Officer – ‘the second cause of
action’;
iii) his dismissal was automatically unfair in terms of s 187(1)(f) of the LRA
because he was dismissed for having made disclosures in circumstances where
his decision to make such disclosures was a manifestation of conscience – ‘the
third cause of action’;
iv) his dismissal was substantively unfair in terms of s 188(1)(a)(i), the charges
against him being baseless – ‘the fourth cause of action’; and
v) his dismissal was procedurally unfair in terms of s 188(1)(b) – ‘the fifth
cause of action’.

[11] In the LC, Parliament excepted to Charlton’s statement of claim on six
grounds (identified as grounds A to F). Grounds B to E were, however, not
pursued at the LC hearing, leaving only exceptions A and F to be dealt with.
Exception A related to the first cause of action, while exception F related to the
LC’s alleged lack of jurisdiction to entertain the fourth and fifth causes of
action. The LC dismissed both exceptions in June 2007, but Parliament was
granted leave to appeal to the Labour Appeal Court (LAC). In July 2010, the
LAC upheld the exceptions previously dismissed by the LC and made orders
staying ‘the proceedings’ under s 158(2)(a) of the LRA1 and referring ‘the
dispute’ to the Commission for Conciliation, Mediation and Arbitration
(CCMA) for arbitration. Hence this appeal by Charlton, which serves before us
with special leave granted by this court.
Exception A
[12] The basis for this exception taken by Parliament and persisted in before
us is as follows. Parliament submitted that, in order to enjoy the protection of
the PDA, the disclosure by the employee concerned had to relate to conduct by
his or her employer or by a co-employee. In terms of s 187(1)(h) of the LRA, a
dismissal is automatically unfair if the reason for the dismissal is ‘a
contravention of the [PDA], by the employer, on account of an employee having
made a protected disclosure defined in that Act’. Exception A was to the effect
that Members are neither ‘employees’ nor ‘employers’ for purposes of the PDA;
that Charlton did not enjoy protection under the PDA when he made disclosures
about their conduct; that his dismissal was accordingly not automatically unfair

1  Section 158(2)(a) provides that, if at any stage after a dispute has been referred to the Labour Court, it
becomes apparent that the dispute ought to have been referred to arbitration, the Court may stay the proceedings
and refer the dispute to arbitration.

in terms of s 187(1)(h) of the LRA and hence that the first claim disclosed no
cause of action.
[13] In dealing with the exception, the LC held that Members are both
employees and employers for purposes of the PDA. It ruled that the disclosures
made by Charlton thus constituted protected disclosures under the PDA and that
exception A fell to be dismissed.2
[14] As stated above, Parliament appealed to the LAC against the dismissal
of the exception. The LAC entertained the appeal. As regards the appealability
of the dismissal of the exception, the LAC, relying on Zweni v Minister of Law
and Order 1993 (1) SA 523 (A), held as follows:
‘Clearly the first exception raised by Parliament does not go to jurisdiction but is instead an
attack on the respondent’s [Charlton’s] cause of action . . . The court a quo in a reasoned
judgment made a final determination that Parliamentarians are both employers and
employees for the purpose of the PDA. This decision is final in effect and not susceptible to
alteration by the court a quo and at least finally disposes of this problem and will not be
revisited by the court a quo . . . To that extent, this decision is appealable.’3
[15] The approach by the LAC is fallacious. It failed to appreciate that it is
established law that the dismissal of an exception is generally not appealable.
The qualification to that general principle relates to exceptions going to
jurisdiction.4

2 Charlton v Parliament of the RSA (2007) 28 ILJ 2263 (LC).
3 Parliament of the RSA v Charlton (2010) 31 ILJ 2353 (LAC) para 5.
4 See Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 10E-11B, Maize
Board v Tiger Oats Ltd & another 2002 (5) SA 365 (SCA) paras 9 and 14; Phillips v National Director of
Public Prosecutions 2003 (6) SA 447 (SCA) para 19.

[16] Section 166(1) of the LRA provides that any party to proceedings before
the LC may apply for leave to appeal to the LAC ‘against any final judgment or
final order of the Labour Court’. There is no specific provision dealing with
exceptions in the Labour Court Rules, hence Rule 11(3) dictates that ‘the court
may adopt any procedure that it deems appropriate in the circumstances’. It is
established practice that exceptions are dealt with in the Labour Court and the
Labour Appeal Court in the same manner as in the High Court.
[17] In terms of s 20(1) of the Supreme Court Act 59 of 1959, only
‘judgments’ and ‘orders’ (and not merely ‘rulings’) are appealable. In Zweni v
Minister of Law and Order,5 the test for what is meant by a ‘judgment’ or
‘order’ was expressed as follows: ‘first, the decision must be final in effect and
not susceptible of alteration by the Court of first instance; second, it must be
definitive of the rights of the parties; and third, it must have the effect of
disposing of at least a substantial portion of the relief claimed in the main
proceedings’.
[18] Flowing from the first of the three Zweni requirements, it has been
consistently held that, except in very limited circumstances, the dismissal of an
exception is not appealable. This is because the order is not final in effect: there
is nothing to prevent the aggrieved party from raising and arguing the same
issue at the trial. In the words of Innes CJ in Blaauwbosch Diamonds Ltd v
Union Government (Minister of Finance)1915 AD 599 at 601:
‘[O]ne would say that an order dismissing an exception is not the final word in the suit on
that point that it may always be repaired at the final stage. All the Court does is to refuse to

5 At 532J-533A.

set aside the declaration; the case proceeds; there is nothing to prevent the same law points
being re-argued at the trial; and though the Court is hardly likely to change its mind there is
no legal obstacle to its doing so upon a consideration of fresh argument and further
authority.’
[19] More recently, in Maize Board v Tiger Oats Ltd & others 2002 (5) SA
365 (SCA) para 14, this court (per Streicher JA) expressed the principle thus:
‘In the light of this Court’s interpretation of s 20, the decisions in Blaauwbosch, Wellington6
and Kett,7 and the well-established principle that this Court will not readily depart from its
previous decisions, it now has to be accepted that a dismissal of an exception (save an
exception to the jurisdiction of the Court), presented and argued as nothing other than an
exception, does not finally dispose of the issue raised by the exception and is not appealable.
Such acceptance would on the present state of the law and jurisprudence of this Court create
certainty and accordingly be in the best interests of litigating parties.’
[20] It follows that leave to appeal against the dismissal of exception A
should not have been given by the LC and the LAC ought simply to have struck
Parliament’s appeal in respect of exception A from the roll. In this regard,
Charlton’s appeal must succeed.
Exception F
[21] This exception was to the effect that the fourth and fifth causes of action
(ie the ordinary unfair dismissal claims, as opposed to the automatically unfair
dismissal claims) had to be resolved through arbitration in the CCMA and not
through adjudication in the LC.

6 Wellington Court Shareblock v Johannesburg City Council; Agar Properties (Pty) Ltd v Johannesburg City
Council 1995 (3) SA 827 (A).
7 Kett v Afro Adventures (Pty) Ltd & another 1997 (1) SA 62 (A).

[22] Accordingly, so the contention went, the LC lacked jurisdiction to
entertain the matter. As indicated above, as an exception to the Blaauwbosch
Diamonds principle, appeals against the dismissal of such exceptions are
allowed.8 The reason is fairly obvious – if the court lacks jurisdiction, it cannot
legitimately adjudicate the exception. In this case, however, in dealing with
exception F, the LC did not in fact decide on the issue of jurisdiction. It held
that:
‘[I]f the dispute raises two different reasons for the dismissal, the court can proceed with the
adjudication. What it would be required to do is to find first if the automatically unfair
dismissal has been proved. If there is evidence to establish an automatic unfair dismissal, the
question of jurisdiction would no longer arise. If, on the other hand, the court finds that there
is no evidence to establish an automatically unfair dismissal, the question of the jurisdiction
will still remain in relation to the allegation of unfair dismissal . . . .
This court cannot simply dismiss the dispute based on unfair dismissal at this stage when it is
coupled with the allegation that the same dismissal is automatically unfair. The true reason
has to be established by evidence. It is only after hearing the evidence that the court would be
in a better position to decide if the unfair dismissal has to be referred to arbitration.’9
[23] The LC in effect took the approach that s 158(2)(a)10 of the LRA should
be applied as and when the need arose. It made no decision at all on the issue of
jurisdiction. It thus in effect declined to determine the issue at that stage. No
doubt an appeal will avail a party aggrieved by the decision, were it still to be a
live issue at that time, once the matter has been finally determined. The LAC
thus clearly erred in holding that ‘the [LC] in dismissing the exception made a

8 See above para 15 fn 4.
9 Charlton v Parliament of the RSA above fn 2 paras 67 – 68.
10 See fn 1 above.

finding that it had jurisdiction. Hearing of evidence would make no difference
to this finding.’11 The LC made no such finding. Moreover, the hearing of
evidence would clearly make a difference, as from this would emerge whether
the jurisdictional point on the ordinary unfair dismissal dispute would arise at
all. It follows that the raising of an exception in this regard was misconceived.
[24] As there was no final judgment or order on exception F, no appeal could
arise in relation thereto. Here too, the LAC ought to have struck the matter from
the roll.
Order
[25] In the light of the above, the following order is made:
(a)
The appeal is upheld with costs, including the costs of two counsel,
where applicable.
(b)
The order of the Labour Appeal Court is set aside and replaced with the
following:
‘The appeal is struck from the roll with costs, including the costs of two
counsel.’

______________________
B J VAN HEERDEN
JUDGE OF APPEAL

11 Parliament of the RSA v Charlton above fn 3 para 5.

APPEARANCES:
APPELLANT:
M W JANISCH
Instructed by Herold Gie Attorneys, Cape Town
McIntyre & Van Der Post, Bloemfontein

RESPONDENT:
J J GAUNTLETT SC (with him C J
KAHANOWITZ SC)

Instructed by Chennels Albertyn Attorneys,
Rondebosch

Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

16 September 2011

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Harry Mathew Charlton v Parliament of the Republic of South Africa
(680/10) [2011] ZASCA 132 (16 September 2011)

Media Statement

In an appeal concerning several exceptions raised by Parliament to Mr Charlton's claim of
unfair dismissal, the Supreme Court of Appeal (SCA) today delivered judgment upholding the
appeal against the judgment of the Labour Appeal Court (LAC).  The LAC had upheld the
exceptions which had previously been dismissed by the Labour Court (LC).

Mr Charlton was the Chief Financial Officer for Parliament and held this position until he was
dismissed in 2006, ostensibly on the grounds of work-related misconduct.  He, however,
insists that he was dismissed for being a whistleblower in relation to fraud perpetuated by
Members of Parliament in respect of their travel benefits – what has popularly become known
as the 'Travelgate scandal'.

Mr Charlton challenged his dismissal.  In his statement of claim he raised various causes of
action.  For the purposes of the appeal only two are relevant.  First he claimed that his
dismissal was automatically unfair in terms of the Labour Relations Act (LRA) because he
was dismissed for having made protected disclosures as envisaged in the Protected
Disclosures Act (PDA).  Second he claimed that his dismissal was substantively and
procedurally unfair (the ordinarily unfair dismissal claims).  Parliament excepted to the
statement of claim.

First, Parliament claimed that Members of Parliament are neither 'employees' nor 'employers'
for purposes of the PDA and thus his dismissal was not automatically unfair in terms of the
LRA.  The LC dismissed this exception and Parliament appealed to the LAC against this
finding.  The SCA held that it was established law that the dismissal of an exception is
generally not appealable.  This is because the order is not final in effect as there is nothing to
prevent an aggrieved party from raising and arguing the same issue at the trial. Leave to
appeal should not have been given by the LC and the LAC ought to have struck Parliament’s
appeal from the roll.

Second, Parliament argued that the ordinarily unfair dismissal claims had to be resolved
through arbitration in the Commission for Conciliation, Mediation and Arbitration (CCMA) and
not through adjudication in the LC and thus the LC lacked jurisdiction legitimately to
adjudicate the exception.  The SCA found that in dealing with the exception the LC did not in
fact decide on the issue of jurisdiction. In effect it declined to determine the issue at that
stage. The raising of an exception in this regard was misconceived.  As there was no final
judgment or order on this exception, no appeal could arise in relation thereto and the LAC
ought to have struck the matter from the roll.

The SCA consequently upheld the appeal with costs and replaced the order of the LAC with
an order striking the appeal from the roll with costs.

--- ends ---