Strengthening whistleblower protection by encouraging job security and legal support for individuals who report corruption.
6 June 2024
Chairperson,
Members of the House,
Compatriots, Comrades and Friends.
In a corruption matter, the Supreme Court of Appeal made the following remarks:
“The seriousness of the offence of corruption cannot be overemphasised. It offends the rule of law and the principles of good governance… Courts must send out an unequivocal message that corruption will not be tolerated and that punishment will be appropriately severe… It is thus not an exaggeration to say that corruption of the kind in question eats away at the very fabric of our society and is the scourge of modern democracies.[1]”
The 2030 Agenda for Sustainable Development identified the need to “substantially reduce corruption and bribery in all their forms”. This is well captured in Sustainable Development Goal 16.5 which includes “commitments to fight corruption, increase transparency, tackle illicit financial flows and improve access to information”.
Corruption corrodes the fibre of society and can jeopardise the realisation of the goals of a nation. It hinders economic growth, increases poverty, deepens inequality, exacerbates unemployment and deprives the vulnerable and marginalised groups of equitable access to vital services such as healthcare, education and water and sanitation.
In his maiden State of Nation Address, President Ramaphosa made a commitment of turning the tide of corruption in our public institutions. He committed to prioritising the leadership issues at the National Prosecuting Authority to ensure stability. The relevant appointments were made and the institution has seen relative stability.
In terms of s84 (1) (f) of the Constitution, the President established the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State to investigate matters of public and national interest concerning allegations of state capture, corruption and fraud. The Commission is often referred to as the State Capture Commission or Zondo Commission – named after its chairperson. The Terms of Reference were concerned predominantly with the practices of executive members of the state and the nature of their relationships with private individuals. The Commission concluded that state capture did indeed take place in South Africa, ‘on an extensive scale’ and made recommendations. The commission has been critical in ensuring that the extent and nature of state capture is established and for the restoration of public confidence in public institutions.
In 2019 the Investigating Directorate Against Corruption was established in terms of the National Prosecuting Authority Amendment Act. It is now a permanent feature within the NPA. The IDAC plays a crucial role in strengthening our anti-corruption efforts and ensuring that those who engage in corrupt practices are held accountable for their actions. The IDAC is established to deal with state-capture related, high level and complex crimes. It must ensure the effective implementation of the recommendations of the State Capture Commission. A prosecution-led investigation model is the most effective way to prosecute crimes like corruption, as demonstrated by international best practices.
Chairperson,
Billions of Rands were lost during the years of state capture. We are still dealing with the aftermath. The money which was lost could have been used to progressively realise the socio-economic rights of South Africans, deliver services to communities and empower the youth, was regrettably lost.
Be that as it may, we show appreciation for some of the work that has already been done. It has been reported that the Asset Forfeiture Unit secured freezing orders of R18.9 billion, confiscation and forfeiture orders of R 8.3 billion and recoveries of R8 billion. This includes the seizure and forfeiture of the Optimum Colliery mine which was bought by Tegeta Resources – one of the biggest assets owned by and linked to the Gupta family. The AFU has been implementing innovative interventions such as non-conviction-based forfeiture, a focus on organised crime, a focus on international asset recovery and on corporate alternate dispute resolution mechanisms. A collaboration between the Hawks, the NPA and the United States Department of Justice resulted in the recovery of R2.2 billion from the global software conglomerate, SAP.
Former Chief Justice Raymond Zondo made the following remarks:
“Whistleblowers helped to stop State Capture. Everybody talks about the protection of whistleblowers, but all of you would be aware the commission went beyond that, recommending we incentivise them to blow the whistle.” He further warned that “if corruption is not arrested, the greatest damage will not be in the funds stolen, the jobs lost or the services not delivered. The greatest damage will be to the belief in democracy itself.”
Chairperson,
With regards to the protection of whistleblowers, the State Capture Commission recommended that whistleblowers receive the protections afforded by Article 32(2) of the United Nations Convention against Corruption. This being the awarding whistleblowers a proportion of funds recovered, provided the information disclosed has been material to recovering funds; and affording whistleblowers immunity from criminal or civil action arising from their honest disclosures.
The President has indicated that the Department of Justice and Constitutional Development was reviewing the Protected Disclosures Act 26 of 2000 and Witness Protection Act 112 of 1998 to give effect to the following recommendations:
• Ensuring that whistleblowers receive the protections afforded by Art 32(2) of the UN Convention against Corruption;
• Possibly awarding whistleblowers a proportion of funds recovered, provided that the information disclosed has been material to recovering funds; and
• Affording whistleblowers immunity from criminal or civil action arising from their honest disclosures.
Chairperson,
Despite their importance, in recent years, there have been an increasing number of reports of whistleblowers in South Africa who have suffered physical harm or been threatened with physical harm after exposing corruption in the public and private sectors in South Africa. By way of example, a whistleblower who testified at the State Capture Commission on high-level corruption that implicated the management consultancy firm Bain and Co, was forced to leave South Africa because he feared for his life. Another example is the assassination of the chief director of financial accounting of the Gauteng Department of Health, who exposed corruption linked to
Covid-19 personal protective equipment and was gunned down outside her home after facing intimidation. The homes of two whistleblowers who had testified at the State Capture Commission about irregularities at SARS were burgled in what was described as deliberate targeting.
The repercussions for whistleblowers in South Africa have been severe. Intimidation, loss of jobs, and even the loss of career prospects are threats which will deter people from blowing the whistle on corruption and wrongdoing. The importance of protecting whistleblowers cannot be emphasised enough.
The ANC has long supported the establishment of the State Capture commission, an independent investigating directorate and prosecuting authority. We have been unequivocal about rooting out corruption and malfeasance.
We must stand united against corruption and embrace accountability, transparency and good governance. Government must make the effective protection of a genuine whistleblower who reports wrongdoing a high priority. Whistleblowers are important in our democratic discourse.
[1] Nakedi v S (A173/2016) [2018] ZAFSHC 36 (29 March 2018) at par 81.