Sex, warders, whistle-blowing and videotape

It seems that prisons commissioner Linda Mti was not happy with Grootvlei prison chief Tatalo Setlai using the prison as the set for a “big brother” video on warder corruption.

On June 18 SABC3’s Special Assignment screened the video that four inmates had secretly made with Setlai’s permission, showing warders trading in drugs, alcohol and guns, and selling juvenile inmates for sex.

Setlai saw the elimination of corruption in his prison as his patriotic duty, but sadly he wasn’t to receive any accolades from his boss for the manner in which he uncovered it.

Instead the case followed the well-worn path of so many “whistle-blowers”. Mti appears to want to shoot the messenger rather than the message. Setlai is alleged to have been told to destroy the tape or his job would be on the line for “denting the image of the department”.

This despite strong words of support from the Minister of Justice and Constitutional Development, Penuell Maduna, in the days following the report and Mti’s initial condemnation of Setlai.

It was Maduna’s department that created a safe legal environment for whistle-blowers—or “protected disclosures”, as the law describes it—with the passage two years ago of the Protected Disclosures Act.

What use is this law to potential whistle-blowers? The “whistleblower Act”, as it is colloquially known, offers employees protection from what the Act calls an “occupational detriment”.

Occupational detriment has a wide definition, but includes dismissal, suspension, transfer against your will, demotion and other forms of harassment.

To qualify for this protection, employees should have blown the whistle on unlawful or corrupt conduct in the workplace, and they should have followed a particular procedure in doing this. If they have satisfied these requirements they should be protected.

So did Setlai follow the correct channels? He had various options available. One was to raise the matter internally with his superiors. Another was to disclose the matter more widely as he chose to do by releasing the video to Special Assignment.

The latter, wider disclosures, will be protected in terms of the Act, but they need to satisfy certain grounds of reasonableness. Grounds qualifying in this instance could be Setlai’s fear that if he were to have raised the matter with his superiors, they might either have destroyed the evidence or not have taken action.

Fearing that he might suffer some form of occupational detriment could also be a reasonable ground for making a wider disclosure. An example of an occupational detriment would be a transfer to another section or department without his agreement.

Whether Setlai broke any rules in exposing the internal corruption at Grootvlei would need to be balanced against the public interest in having crimes within the Department of Correctional Services brought into the open.

Shooting the messenger is not one of the objects of the Protected Disclosures Act. The recognition by Minister of Correctional Services Ben Skosana of Setlai as the “facilitator for greater good” is a further positive response to Setlai’s whistle-blowing efforts.

What this case shows is that the safe legal environment has to be matched by a safe working environment in terms of the attitudes adopted by the employer. In summary, responsible employers welcome responsible whistle-blowing, in recognition of the common “greater good” that is shared by both the employee and the employer and often by the public, too.

Establishing good corporate governance practices can be achieved though the setting up of whistle-blowing mechanisms and structures supported by a whistle-blowing policy as envisaged by the law itself.

Employees need to know where and how to blow the whistle, and to be confident that they will be taken seriously and treated, if necessary, in confidence.

Significantly, the Public Service Commission has embarked on countrywide training for its officials on the whistle-blower law. It is running workshops with its staff to consult on the establishment of “best practice” whistle-blowing mechanisms to combat corruption in the public sector.

The establishment of such structures should lead to corruption being reported internally and then dealt with. This is obviously preferable for employers as their dirty linen is not washed in public.

It also helps employees. Their concerns are dealt with by the people who understand the problems of that industry best, rather than regulators or the police.

If the matter is not dealt with internally, the only option that remains to the whistle-blower is to follow the external route. The individual who has blown the whistle will then attract the protection of the Act.

Could Grootvlei uncover a grooter vlei of corruption in the Department of Correctional Services? Only time will tell whether Setlai’s whistleblowing puts the correctional back into the services.

Bill Thomson is the senior training consultant at the Open Democracy Advice Centre in Cape Town

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