This article first appeared in the Sunday Times
By Thabo Mokone
Proposed new legislation outlined by President Cyril Ramaphosa last week will enhance protection for whistle-blowers following a spate of hits on those who expose corruption — and will provide them with financial support to replace loss of income.
Justice Minister Mmamoloko Kubayi told the Sunday Times that some prosecutors were resisting the lifestyle audits she had ordered, but she would insist on them regardless.
Speaking after Ramaphosa delivered the state of the nation address on Thursday, when he announced the government would table the Whistle-blower Protection Bill in parliament this year, Kubayi said the legislation would give whistle-blowers, “from day one”, the same level of protection that state witnesses receive under the witness protection programme.
The bill, which she said replaces the Public Disclosures Act (PDA), would compensate whistle-blowers for income they might lose as a result of exposing corruption in government.
“To be able to sustain that person monthly, we pay them their salaries equivalent to what they were getting,” the minister said. “So, their children can continue to go to school, their bonds can be paid.”
The bill would also make it a criminal offence to threaten or victimise whistle-blowers.
Kubayi is also pursuing a clean-up at the National Prosecuting Authority (NPA) and said she had asked the new head of public prosecutions, Andy Mothibi, to implement lifestyle audits for prosecutors.
The Zondo inquiry into state capture made recommendations for improved protection for whistle-blowers, as has the Madlanga commission of inquiry into corruption in the criminal justice system.
Several witnesses at the Zondo commission, who had served as senior executives at public sector and private sector companies, told the inquiry they had lost their livelihoods after exposing wrongdoing.
But outrage at the vulnerability of whistle-blowers came to head in 2021 when a Gauteng health department accountant, Babita Deokaran, was killed outside her home after flagging the looting of government funds at Tembisa Hospital.
Kubayi said the system now provided for protection only once a case had come to court, but this was too late.
“With whistle-blowers there would not be a case before court. For example, I would have blown the whistle, but the SIU [Special Investigations Unit] is still investigating, or the Hawks — but while they are still not in court, my life is at risk,” she said.
“So we are making provision for that because that’s how you would have lost your Babitas, and that’s how you would have lost the auditor from Ekurhuleni [Mpho Mafole]. So we are closing that [loophole] because previously there would not have been any legal basis for anyone to intervene in their lives.”
Mafole was shot dead in June last year after uncovering corruption in a R1.8-billion mobile toilet tender.
Kubayi said the proposed legislation “says that when there’s a protected disclosure, within five days I need to have acted, I need to respond and say I am investigating, and I must communicate the matter to the protected discloser to say I have referred the matter to the Hawks. If I don’t do so, the discloser can report me to the judge for me to be sanctioned.”
We are building an ethical state and we are going to fire quite a number of them if they continue that way. So, lifestyle audits are compulsory.
“[The] guardians have failed to guard themselves,” Kubayi said, citing information she had received about skullduggery in the NPA.
“I gave an instruction that I want all prosecutors to go through lifestyle audits. They resisted, they started to give legal opinions, but I put my foot down to say, ‘It’s not going to happen, you are going to go through lifestyle audits,’ so there was a pushback.”
“That’s why I asked the current NDPP to say, ‘You have been the champion of lifestyle audits [at the SIU], and I expect you to lead by example here.’ I told them that until you do lifestyle audits, I will not be able to stand and defend you that you are not corrupt.
“One of the prosecutors fought with the wife. The wife even sends me evidence of cash deposits into their bank account, and I have sent it to the office of ethics,” Kubayi said. “This morning I got another one. I phone the NDPP to say there’s an official who is trying to get money out of this person, to say, ‘If you pay, I will make sure that your case does not go to court.’