South Africa's whistleblowers: Decades of courage met with deadly consequences

Key topics:

• Whistleblowers face retaliation, violence, and even murder in South Africa

• Legal protections like the Protected Disclosures Act remain ineffective

• Key cases show whistleblowers exposing corruption from apartheid to state capture

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By Ugljesa Radulovic* and Tina Uys*

South Africa’s long history of wrongdoing spans from Willem Adriaan van der Stel’s days of running a corrupt trading monopoly to present-day South Africa. Van der Stel was the second Governor of the Cape Dutch Colony, from 1699 to his removal in 1707.

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.

*Ugljesa Radulovic: Senior Postdoctoral Research Fellow, University of Johannesburg

*Tina Uys: Professor of Sociology, University of Johannesburg

*This article was originally published by The Conversation and has been republished with permission.