What challenges do whistle-blowers face in South Africa's battle against corruption?
South Africa, led by President Cyril Ramaphosa, has amended various laws to combat corruption, however, whistle-blowers are exposed to risk, with some in hiding.
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While South Africa has implemented various anti-corruption laws, including a National Anti-Corruption Strategy, concerns have been raised about the ineffective whistle-blower mechanisms and the whistle-blowing framework, which limits the reporting of wrongdoing.
Among key anti-corruption laws that have been amended are the Prevention of Combating of Corrupt Activities Act, the Anti-Money Laundering Legislation General Laws, and the National Prosecution Authority Amendment Act, which stemmed from the Zondo Commission Report.
Mary de Haas, a KwaZulu-Natal violence monitor, said whistle-blowers' lives are at risk, and it seems that politicians are untouchable, as corruption continues and often leads back to politicians.
She mentioned at least two whistle-blowers whose lives are at risk after they exposed corruption. People in government, from the president down, are promising help for whistle-blowers, but there is nothing, she said.
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'Patricia Mashale was a very senior admin person within the police, and she reported corruption to the then National police commissioner General Khehla Sitole about Free State management corruption. He (Sitole) sent it back to them, and her life became endangered.
'Mashale can't live with her children because her house is under surveillance, and there is no financial support for whistle-blowers. How could people live when they have lost a job, have been illegally dismissed, and they can't live in their own homes because they are under surveillance and may get killed?' De Haas asked.
She said, Warrant Officer Meshack Makhubo, who opened the second docket in the Senzo Meyiwa case, is also in danger.
'There was an attack on his home. It wasn't just a break-in attack. It was an onslaught on his home. They want him dead because he knows too much about corruption in the police and the cover-up in the Meyiwa case..
'I have been informed that a lot of people now just keep quiet even when they know about corruption. They just go with it because when you open your mouth or you show that you are reporting it, your job is the first thing on the line. A lot of the dismissals are swift, and the Labour Court has confirmed they are illegal,' De Haas said.
She added that the other thing they do is bring a Strategic Lawsuit Against Public Participation (SLAPP) suit, which is filed to silence or intimidate someone who has spoken out about a matter of public interest.
'I've got one against me, which is nonsense. I mean, there is no substance in it at all, but they try to shut you up by threatening to sue you if you report them. That's how bad it is,' she said.
Devoshum Moodley-Veera, an integrity activist, PhD student at the School of Public Leadership and ACCERUS at Stellenbosch University, said there has been a lot of talk around the amendment of the Protected Disclosures Act for years, but it is yet to be seen whether law alone can assist in whistle-blower protection.
'Whistle-blowing is multi-faceted with several role players involved, yet we see a blame culture on whose role is it to protect whistle-blowers. With the laws not providing a dedicated institution to deal with whistle-blowing complaints, I am afraid that retaliation will increase under the current whistle-blowing framework, as we have seen severe cases such as Babita Deokaran and Pamela Kabini,' Moodley-Veera said.
She added that the Feinstein and Devine report of 2021 examined the sufficiency of the primary whistle-blower laws by juxtaposing 17 countries with the standards established by the European Union Whistleblowing Directive (2019/1937).
South Africa met only five of the 20 criteria to be included in whistle-blowing laws, which makes whistle-blowing legislation ineffective in South Africa.
Moodley-Veera said the country can be commended for a number of anti-corruption initiatives, however, the implementation remains weak.
'The Transparency International Corruption Perception Index is used to measure anti-corruption effectiveness. Thus far, South Africa has scored 41, the same as the previous year, showing no progress. The score is below the global average of 43, having dropped by three points since 2019. It should be noted that this index shows perceived levels of corruption in the public sector, not the number of cases reported or experiences of the public,' Moodley-Veera said.
She highlighted that there is a trust deficit in the country, and citizens would like to see action and accountability, which are severely lacking.
'Action should be taken. Institutions should appoint competent, ethical leadership to implement these initiatives. Legislation should be reformed, and laws should be developed to address the current context and situation in the country. The use of Western laws does not help the country in its current state,' she said.
During the State of the Nation Address, President Cyril Ramaphosa said the government had started taking steps to expose and punish corrupt activities in the public and private sectors, to reform institutions, making them stronger, more transparent, and restoring a professional and effective public service.
He said the NPA Investigating Directorate had at that time enrolled over 34 corruption cases, charged 202 accused individuals, and 65 accused entities.
'We are making progress in the fight against corruption with over 1,300 corruption convictions in four years, including 500 government officials. R14.18 billion assets frozen in corruption and state capture cases. Thirty-four cases were enrolled, involving over 200 accused persons, including former ministers and some of the largest corporate companies in the country, such as McKinsey and ABB.
'The NPA has finalised a comprehensive settlement agreement with company ABB to pay over a further R2.5bn in 'punitive reparations to South Africa' for its part in state capture. This adds to the R6 billion ABB already paid to Eskom in 2020,' Ramaphosa said.
Moodley-Veera explained that the challenges experienced with asset recovery by the Asset Forfeiture Unit and Investigating Directorate, both positioned within the National Prosecuting Authority, are the slow disposal rates of cases, which lead to high management costs and high recovery costs, resulting in loss of value.
The high costs of appointing curators to manage the frozen assets as part of property management. There is also a lack of technical and forensic skills within these institutions for asset recovery. This lack of technical skills results in unsuccessful confiscation proceedings. There is also a lack of capacity, inadequate budgets, poor collaboration, political interference in the criminal justice system and the law enforcement agencies, Moodley-Veera explained.
She added that one of the biggest successes of anti-corruption efforts in South Africa was that the late Dudu Myeni (former South African Airways chairperson) was found to be a delinquent director by the courts under the Companies Act. This was after the state capture proceedings.
'Another success is that due to transparency, the State Capture commission proceedings were broadcast in the media, and also the report was shared with the public. There has also been more public awareness around whistle-blowing, and some of the biggest cases of retaliation were made public. This shows that whistle-blowing is indeed one of the tools to be used for anti-corruption measures. As a country, we have also seen the vital role played by media and civil society organisations in addressing corruption in South Africa.
'However, there are persistent challenges such as ineffective whistle-blowing laws, cases that are delayed, high costs of litigation, and regulators and state institutions lacking independence to deal with corruption cases. There is also a lack of resources to deal with cases,' she said.
'Civil society organisations have come together to develop and launch the Zondo Tracker to also oversee the implementation of the Zondo recommendations,' Moodley-Veera said.
She added that anti-corruption initiatives should not be seen as a responsibility of the state only, but should be a collaborative effort to achieve a society that is free from fraud and corruption.
gcwalisile.khanyile@inl.co.za
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