Whistleblowers have been at the core of exposing these instances of corruption.

Public whistleblowing was rare under apartheid (1948-1994). But with the transition to democracy, the reporting of wrongdoing increased. This can largely be attributed to a new constitution that caters for all the country’s citizens, and new laws that reinforced their rights.

One such law is the Protected Disclosures Act No. 26 of 2000, amended by way of the Protected Disclosures Amendment Act No. 5 of 2017. The law was designed to protect individuals who expose perceived wrongdoing to an authority that has the capacity to remedy the wrongdoing.

Yet, it has offered inadequate protection. South African whistleblowers have been overwhelmingly subjected to reprisals – from murder to social, work-related, and legal retaliation.

Our academic expertise is concerned with exploring the experiences of whistleblowers in South Africa, and making meaning of their plight.

In a recently published paper we give an account of the stories of a selection of whistleblowers spanning five decades. We selected a few stories that have set precedents in South Africa.

These cases offer only a glimpse into the experiences of South African whistleblowers. But what is clear is that, by fulfilling their public duty, they place themselves at great personal risk.

Adam Klein

Adam Klein was one of the rare whistleblowers who made a disclosure under apartheid rule. In 1980, Klein, a prosecutor in the Bantu Commissioner’s Court, refused to prosecute five black men under the pass regulations. These were a cornerstone of apartheid legislation, serving as an internal passport system to restrict the movement of non-whites and thus racially segregate the country.

Klein immediately faced retaliation. He was arrested under trumped-up charges, faced threats to his physical well-being and became subjected to surveillance.

He then made a public disclosure to the Sunday Times newspaper, exposing severe abuses at the Pretoria Bantu Commissioner’s Court. The disclosure revealed the inhumane nature of the pass laws, like detention of black people who failed to produce passes.

Klein faced further backlash and had to temporarily relocate to Namibia for his safety. On his return to South Africa, he continued to be subjected to surveillance and interrogation. He passed away in 2011, unacknowledged and without posthumous recognition.

Andries Jacobs

Andries Jacobs, an inspector at the Gauteng Provincial Traffic Department in the town of Benoni, would become known as the whistleblower who exposed police dogs being set on migrants. In January 1998, Jacobs recorded six policemen, who were part of the North East Rand Police dog unit, inciting their dogs to attack Mozambican migrants. Jacobs submitted the bombshell video footage to the Police Commissioner, the Minister for Safety and Security, and the South African Broadcasting Corporation.

The six police officers were eventually arrested in November 2000, nearly a full three years after the incident occurred. On the day of their arrest, the video footage was broadcast on national television. The policemen were charged and received prison sentences of four to five years.

Yet, Jacobs was suspended from work two days after the policemen were arrested. After eventually returning to work, he had to spend a year in the witness protection programme. Jacobs never returned to his original work duties, having not received a duty roster or any equipment to fulfil his role obligations.

Jacobs eventually faced dismissal for the unauthorised use of a video camera to record the “police training exercises”. By 2005, his life had been significantly strained. He received death threats, eventually leading to ongoing stress and a divorce.

Tatolo Setlai

One of the landmark cases of disclosure following the implementation of the Protected Disclosures Act in 2000 is that of Tatolo Setlai. In 2001, the Jali Commission of Inquiry revealed widespread corruption in South Africa’s prisons. Setlai, the head of Grootvlei Prison in Bloemfontein, permitted four prisoners to secretly record prison officials engaging in illegal acts – selling a loaded firearm, drugs, and alcohol; and facilitating the sexual exploitation of a juvenile.

This footage was broadcast on national television. The Department of Correctional Services did not adequately address the disclosure. Rather it subjected Setlai to victimisation and harassment. He faced trumped-up charges and was at the mercy of bogus disciplinary hearings.

Setlai was dismissed but eventually returned to his position after an arduous process with his employer at the Labour Court.

‘Stan’ and ‘John’

Under Jacob Zuma’s presidency (2009-2018), South Africa graduated from “ordinary” corruption. Private firms and individuals exploited corrupt public officials to manipulate key state structures for their personal benefit, and this would come to be understood as state capture.

Much of what was detailed during this time was the result of whistleblowers’ disclosures. Two anonymous whistleblowers, “Stan” and “John”, furnished landmark evidence to support the state capture allegations. They provided Brian Currin, a human rights lawyer, with hard drives containing hundreds of thousands of emails that detailed the nefarious relationship between the Gupta family, the Zuma family, ministers, and heads of state-owned enterprises. The Gupta family – three influential siblings and businessmen originating from India – were fingered as the key drivers behind state capture.

Stan and John’s disclosure became known as the Gupta Leaks. They were used as official evidence at the Zondo Commission of Inquiry into State Capture.

The two Gupta Leaks whistleblowers remain anonymous and have relocated abroad for their physical safety.

Paying with their lives

A number of whistleblowers have lost their lives as a consequence of disclosure.

Jimmy Mohlala, the Speaker of the Mbombela Municipality, was murdered in front of his home after he exposed tender irregularities related to the construction of the Mbombela Stadium for the 2010 FIFA World Cup. His son was injured in the attack.

Moss Phakoe, an African National Congress municipal councillor since 2002, was also shot in front of his home. He and a colleague compiled a dossier that exposed corruption in the Bojanala Platinum District Municipality. Phakoe’s report implicated the former mayor of Bojanala, who was convicted of the murder. The conviction was later overturned as several state witnesses retracted their testimonies.

The murder of Babita Deokaran, Acting Chief Financial Officer of the Gauteng Department of Health at the time of her death, attracted nationwide attention. She had uncovered extensive corruption in the Department and submitted evidence of this to the relevant authorities. She would later investigate corruption related to the procurement of personal protective equipment during the COVID pandemic.

Deokaran was on the brink of making a disclosure pertaining to the COVID-related corruption when assassins shot her after she dropped her child off at school. Six hitmen were arrested for the assassination, but the mastermind remains at large.

Lessons

The frequency and severity of retaliation against South African whistleblowers is alarming.

We conclude from our analysis that the problem resides in a failure of the government to recognise the dire situation South African whistleblowers find themselves in, compounded by lacklustre whistleblower protection legislation.

There has, however, been a signal of intent (and some action) in wanting to reinforce (or rebuild) South Africa’s whistleblower protection legislation.

But this has to be accompanied by political will to adequately implement the new legislation. There also has to be steadfast broader governmental sanctioning against those who do wrong.

Written by Ugljesa Radulovic, Senior Postdoctoral Research Fellow, University of Johannesburg, and Tina Uys, Professor of Sociology, University of Johannesburg.

Republished with permission from The Conversation. The original article can be found here.

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President Cyril Ramaphosa assented to the NPA Amendment Act in May, and on Thursday 15 August signed a proclamation bringing the Act into operation.

The establishment marked a “significant milestone in our fight against corruption,” said Minister Simelane, adding that “unlike the previous Investigating Directorate, IDAC’s permanence ensures its independence and the necessary parliamentary oversight.”

The NPA Amendment Act provides the IDAC with criminal investigation powers, with the Minister stating it would “enhance our capacity to combat complex corruption.”

It will further allow IDAC to “implement decisions from commissions of inquiry and uphold the recommendations of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption, and Fraud in the Public Sector.”

The Minister noted the “necessary regulations for section 19D(3) and section 22A(4) of the NPA Act have been prepared and will be published on 19 August 2024. Additionally, we are finalising regulations under section 8, which will allow for the appointment of a retired judge to oversee complaints related to IDAC investigators.”

Having held a successful meeting between business stakeholders and government earlier this month, the Minister announced that a commitment had been made to collaborate in setting up a digital evidence unit.

“The unit will extract and analyse data from encrypted devices such as cellphones and laptops to come up with the evidence needed to prosecute criminal cases of corruption successfully, specifically [in] cases related to state capture,” said the Minister.

Clarifying on who would have access to such data, the Minister stated that “the Department of Justice and Constitutional Development is the legal custodian of the Commission’s assets, including its data, on behalf of the South African State, government, and people. Law enforcement agencies have priority access to the data but do not have exclusive access or ownership.

“To facilitate this, the Commission amended its Regulation 11 to grant special access to its data,” noted the Minister, adding that the Commission had trained over 20 NPA investigators with the necessary skills to access its digital forensic platforms.

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The department said, “inaccurate media reports” allege that the NPA ID has not been “able to access critical information from the erstwhile State Capture Commission’s (SCC’s) Data Centre”.

“We wish to clarify that the cooperation between the Ministry and Investigating Directorate of the NPA remain cordial and professional. On the 31st of July 2024, the Ministry met with several of the entities of the department, and it pledged its unwavering commitment to support the work of the NPA and its Investigative Directorate.

“The Department of Justice and Constitutional Development is the legal custodian of all the assets of the Commission including the data centre, following the expiry of the term of the SCC. The department holds these assets on behalf of the South African State, government and people. This mandate arises from the custodianship of the Commissions Act, 1947, residing with the Minister of Justice and Constitutional Development.”

The department further stated that the data centre has devolved to the DJCOD as envisioned by the founding Memorandum of Agreement between the department and its counterpart, the National Treasury.

Furthermore, the department said it remains committed to “transparency, accountability, and the effective use of its data to support justice and governance”.

“The department established a Residual Mechanism to deal with remaining matters of the Commission.”

The Commission continues to supply and support all law enforcement agencies and other entities with data and information, as and when requested. Further, there is a Secretariat that continues to manage the data centre and support all law enforcement agencies and other entities in accessing the database.

“To ensure effective utilization of the data, the Commission trained over 20 NPA investigators, providing them with direct access to the Commission’s digital forensic platforms. The Commission’s secretariat has consistently supplied the requested data and documents.

“The Secretariat has positively responded to data requests from various law enforcement agencies, including the NPA’s ID, DPCI [Directorate of Priority Crime Investigations – Hawks], Asset Forfeiture Unit (AFU), Financial Intelligence Centre (FIC), South African Revenue Service (SARS), Special Investigating Unit (SIU), and some State-Owned Enterprises (SOEs). The remaining staff that is experienced in data science and programming, continue to support ongoing projects,” the department said.

News24 on Wednesday 14 August reported an “impasse” between the justice department and the NPA after the former apparently stymied the NPA’s efforts to gain full access to “essential evidence”, gathered by state capture commission investigators, which has now been lost due to maintenance failure.

The report further claimed that the department has stalled on the permanent establishment of the Investigating Directorate, making it difficult for the directorate to prosecute state-capture criminals.

The NPA said that it “continues to engage” execs from the commission’s digital lab and had “expressed that lack of access to the lab hampers the ability of the ID to deal with state capture cases. However, the issue of the access to the lab is primarily a technical one, being handled between the NPA and justice department officials. The previous and current ministers have been engaged and committed to attend to it expeditiously.”

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National Director of public prosecutions Advocate Shamila Batohi said the NPA has taken steps to request political intervention from the Presidency and had briefed Mashatile on the matter ahead of his working visit to the UAE this week.

“We’ve decided, as the NPA, that we needed the president of this country to intervene with the ruler of the UAE because we realised that unless there isn’t that strong political push in the UAE, we’re going to struggle with this matter.”

“Mutual legal assistance, ultimately, it depends on political will and if the leaders in a country do not want to cooperate with you, there’s no way you can get that cooperation.

“What we hope the DP (Mashatile) will be able to do – we have briefed him fully – is really to get the commitment from the rulers of the UAE at the highest level, for them to understand the importance of these cases to South Africa and for them to get the commitment at the highest level that the UAE will support South Africa in our requests,” she said.

Batohi explained that the NPA was battling to establish the reasons why its request to the UAE was rejected a year ago.

“We have been trying very hard to find out some very basic things like what exactly [is] the problem with our extradition request. We’ve not had satisfactory responses from the UAE.”

“We’ve been trying to set up a meeting with the national director and the head of the prosecuting authority in the UAE in order for us to understand this. We’ve not been able to schedule that meeting for months,” she said.

The NPA wants the Guptas back in South Africa to face charges for fraud and money laundering related to state capture.

In September 2023, the Department of Justice and Correctional Services in a statement said it was requested to resubmit a new extradition request.

Last April the UAE rejected South Africa’s extradition request for the brothers, stating that  it “inconsistent with article 17 of the United Nations Convention Against Corruption, to which both nations are a signatory”.

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