Whistleblowers deserve greater protection.

2014-04-03 18:45

We must pay more than lip service regarding protecting whistleblowers against corruption. Condemning corruption is nothing but a fig leaf for serial looters of our fiscus.

Whistleblowers deserve effective protection if we are to truly eradicate corruption or go to a great extent towards deterring it at the very least. The #NkandlaReport comes to mind though it is marginally related to the topic of whistleblowers. It is the public furore accompanying a very public issue that is protecting our democracy from imploding in the face of cover ups. Let me make this abundantly clear here and now. This blog piece has nothing to do about the #NkandlaReport and therefore, it will be appreciated if comments are confined to the issue of whistleblowers and how we as active citizens who have risen in support of Advocate Thuli Madonsela should not and cannot make our feelings an election time only act of public dissent. Our democracy and its human rights foundation is at stake.

In his article, Evan Pickworth proclaimed that;

“South Africa’s whistle-blowing framework has received the highest possible rating of three stars in a report by global law firm DLA Piper for providing express protection to those making legitimate disclosures. It means South Africa trumps Germany, France, Hong Kong and Australia and is on a par with the laws in the US, UK and China.” (Read “SA whistle-blowing system gets top score”, in Business Day, 27 January 2014)

As active South African citizens we should not ordinarily be in self-congratulatory mood and patting ourselves at the back for having trumped such illustrious nations known generally for clean governance, and also being on par with such good company in the field of whistle-blowing. Why not? Firstly as it stands the protection that whistle blowers receive is nothing but a fig leaf. Secondly, because .....

Because ironically our whistle-blowing framework does not always and immediately provide the desired and effective protection that whistle-blowers expect and deserve.

Given the various powerful political forces and interests at stake in the scramble to lay hands on the public purse, that valiant act of exposing malfeasance within the public service might be a career limiting move if not the beginning of a long nightmare especially if the whistleblower is an honest career dependent employee.

Consider if you will the well-known case of Charlton v Parliament of the Republic of South Africa[ [2011] 12 BLLR 1143 (SCA)] In summary an honest Mr. Charlton exposed all of those “Honourable” Members of Parliament involved in the “Travelgate” scandal in April 2003. Hands up for all of you who still remember that shameful episode?

Some of those “Honourable” Members who had committed fraud on a grand scale owned up, and re-paid the ill-gotten gains. Some were ‘disciplined’, whilst others went about audaciously with their lives and regarded the whole episode and scandal as a non-event if not a big joke. So how did our Mr Charlton get rewarded?

Google and read for yourself.

Mr Harry Matthew Charlton came out second best for causing trouble, and was subsequently involved in a protracted battle to set aside his unfair dismissal.

He certainly deserved a national medal of honour for valiantly staying the course in exposing how politicians were pillaging the fiscus. Funds that could have been used for medicare and educare went into the pockets of crooked politicians, many still in office.

Gemane and on this point,I am going to repeat verbatim what one judge said in a judgment handed down today (3.4.2014) in Ngobeni v Minister of Communications and Another (J08/14) [2014] ZALCJHB 96 . In a hard hitting judgement he said that

" [3] In the face of the powerful, greedy and politically connected officials within the public service, whose past time is looting public funds, there will always be honest and brave South Africans in the form of whistle-blowers. They will take upon themselves to continue to expose the rot and those public officials with itchy fingers. These are our unsung heroes and heroines, the faithful servants of the people of our beloved country. They should be commended, encouraged and supported in their quest for making public officials accountable, with the acknowledgement that they continue do so at great risks to themselves and their careers."

He goes on to say

" [4] Following the dismantling of the evil system of apartheid, sadly in its stead, we have an even more evil and sustained system and culture of fraud, theft, corruption, nepotism, and other forms of malfeasant committed by the very same people entrusted with the protection of the public funds.".

Yes, "whistle-blowers" certainly "are patriotic individuals, who are now the face of our new struggle against such evil and wanton looting. These are public servants who are taking the meaning of “public service” to new levels, and who are prepared to practice and uphold the principle of “Batho Pele” rather than merely paying lip service to it."

In 2007 or thereabout a judge in the case of Tshishonga v Minister of Justice & Constitutional Development & another (2007) 28 ILJ 195 LC stated (at para 168) that

“Whistle-blowers (were) not impipis, a derogatory term reserved for apartheid era police spies. Whistle-blowing is neither self-serving nor socially reprehensible. In recent times its pejorative connotation is increasingly replaced by openness and accountability. Employees who seek to correct wrongdoing, to report practices and products that may endanger society or resist instructions to perform illegal acts, render a valuable service to society and the employer. Still, of 230 whistleblowers in the United Kingdom and the USA, a 1999 survey found that 84 percent lost their jobs after informing their employer of fraud, even though they were not party to it”

Like Mr Charlton lets see what happened in Ngobeni's case. Why should we not remain passive citizens coming alive when political fervour reaches melting point around election time?

Mr Ngobeni , like Mr Charlton took upon himself, at great cost, to expose malfeasance in his government department. As a direct consequence of the disclosures he made, the Minister of the Department of Communications Mr. Yunus Carrim, took appropriate action, and the President had, on 20 February 2014, since signed a Proclamation initiating the Special Investigation Unit’s investigations into the allegations.

Brave and patriotic the applicant may have been, however, the matter however did not end with that simple protected disclosure. Mr Ngobeni found himself caught in what can be referred to as the “Charlton syndrome”. He was subjected to disciplinary action for his pains. So......

He approached the court for a declaratory order, seeking that the disclosures he made during the execution of his duties be deemed to qualify for protection in terms of the provisions of the Protected Disclosure Act.

Most importantly, he sought an order prohibiting the Minister and the Director-General from subjecting him to what, under the PDA is referred to as "occupational detriment " in contravention of section 3 of that law. Did he have to go to court to be patriotic? Consider the trauma and the stress he has experienced.

Was there malfeasance involved? Of course. And, here is a hint. Dina Pule who was fired by President Zuma after a public hue and cry was implicated. Read this judgement in case you have been out of the loop as to the factual background.

The curtain has not yet fallen on Mr Ngobeni's woes for the intended disciplinary hearing is yet to be convened. So Mr Ngobeni, who the court was satisfied made the protected disclosure in good faith and that prima facie evidence established malfeasance was committed a fact supported by action resulting in Dina Pule getting fired by President Zuma. Some wit wrote that the law is an ass that, I will add, stubbornly wont be rushed.

So what can we do? A lot. We are seething with anger at the unfolding events following the release of the #NkandlaReport. Political parties for obvious reasons, are milking the event hoping to garner votes on May 7,2014. We should demand a direct participation in all processes as those who purport to represent us in parliament are not accountable to us but to the party which puts up their names as candidates ahead of elections.

Without the NOTA (None of the above) option we cant express our disgust at how dishonest and greedy politicians are filching the fiscus.

We don't have a direct say since we dont vote on a constituency and candidate basis and so yes,whilst we have robust and effective Chapter 9 institutions, we the people need to take rise up, rebel if you will within the limits of the law and the constitutional guarantees.

We must demand, as one commission has concluded that there be a change in our electoral laws and the way we vote. We must clamour for direct participation now and long after the results of May 7 are announced.

We owe this to the brave whistle blowers like Mr Charlton and Mr Ngobeni for instance.

Saber Ahmed Jazbhay

4.4.2014

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