South Africa: Zondo Commission whistleblower policy recommendations encouraging but insufficient

The Commission’s report shows major role played by whistleblowers in revealing State Capture

(Johannesburg, January 12th, 2022) – The report of the Judicial Commission of Enquiry into State Capture (the “Zondo Commission”) proposes long-awaited recommandations for the protection of whistleblowers, yet these recommendations remain insufficient, said the Platform to Protect Whistleblowers in Africa (PPLAAF) today. PPLAAF’s own recommendations, which PPLAAF submitted to the Zondo Commission earlier this year, are being published today.

The Zondo Commission is an unprecedented public inquiry established in January 2018 to investigate allegations of state capture, corruption, and fraud in the public sector in South Africa. The scandal involves South-African former President Jacob Zuma and many individuals and companies, and originates from claims from whistleblowers notably supported by PPLAAF. The charges can be summarized as being part of “state capture”: systemic political corruption in which private interests took over the state and its apparels, gaining millions in the process.

The Zondo Commission’s recommendations on whistleblower policy were published on January 4th as a part of the first portion of the Commission’s findings (p. 851-852), following years of investigation. The Commission rightfully notes that: “recent events in South Africa which will be well known to every reader make it the highest priority that a bona fide whistle blower who reports wrongdoing should receive, as a matter of urgency, effective protection from retaliation.”

But even though the Zondo Commission based its report on many whistleblowers’ testimonies and acknowledged the veracity of their testimonies, the changes it recommends to improve their safety and well-being remain insufficient.

South African whistleblowers played an important role in revealing State Capture, at a huge personal cost”, said PPLAAF legal counsel Zanele Mbuyisa. “To avoid future suffering and to commend those fighting for the Rule of law, we must insist South African whistleblower protections be improved and better enforced”.

From Mosilo Mothepu (“The fact that you don’t have the courage to say ‘no’ breeds the cancer”), to Bianca Goodson (“I felt that I was being spineless not to speak up, I decided one day that I was allowing my experience to bully me”) and Athol Williams (“It’s a tragedy that those who choose to do the right thing have their lives shattered while everyone looks on”), whistleblowers and their testimonies were crucial for the Zondo Commission investigation.

PPLAAF supported several of these whistleblowers, providing them with legal counsel and support, assisting them with their testimonies, evaluating the risks they faced and promoting their cases on national and international media.

This effort has allowed PPLAAF to identify the key lacunas in the South African legislative tool for whistleblowing, the Protected Disclosures Act (PDA). In 2021, PPLAAF drafted key recommendations for modifications in the PDA and shared them with the Zondo Commission.

PPLAAF’s recommendations, which are published today, include:

  • creating an independent Whistleblower Regulatory Authority;
  • adopting strict and obligatory timetables for processing and acting on protected disclosures;
  • establishing punitive sanctions for breaches of the PDA;
  • providing full legal immunities for whistleblowers;
  • changing labour regulations to allow a fair remedy in case of an occupational detriment done to a whistleblower;
  • allowing rewards to the whistleblower in case of asset recovery following a disclosure;
  • establishing mechanisms to safeguard whistleblowers’ physical safety; and
  • extending protection measures to third persons who assisted the whistleblowers, such as family, colleagues or civil society organizations.

Although the Zondo Commission acknowledged “the body of legislation although well intended is deficient in important aspects”, it only made limited recommendations to improve it. The Zondo Commission recommended the creation of an agency for the handling of whistleblowing on matters regarding public procurements, establishing criminal and civil immunity for whistleblowers, and implementing an awards system. While South African authorities should adopt these recommmendations, they will not suffice to plainly protect and obtain justice for whistleblowers: they will still leave too much room for whistleblower not to be taken seriously, and will not deter retaliators as strongly as they should.

Whistleblowers, working in the light or in the shade, are true heroes of the State Capture investigations,” said William Bourdon, PPLAAF’s Chairman. “While the South African authorities’s investigation on the activites of the former regime should be commended, true justice will only be achieved when whistleblowers will notsuffer in vain for South Africa any more.

Only recently, South Africa whistleblower Babita Deokaran was brutally murdered. South-African whistleblowers supported by PPLAAF in recent years have faced endless legal retaliation, public attacks, and financial loss.

PPLAAF is a non-governmental organization established in 2017 to protect whistleblowers, as well as to advocate and engage in strategic litigation on their behalf when their revelations deal with the general interests of African citizens. Since 2017, PPLAAF has been supporting South African whistleblowers, including Mosilo Mothepu, Bianca Goodson, Athol Williams, Bongani Mathebula and Simphiwe Mayisela.

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