How to bleed a whistle-blower dry
A Gupta-linked company has unleashed an arsenal of legal challenges against the woman who exposed the hidden hand in the firing of former finance minister Nhlanhla Nene.
Trillian Capital Partners and its associated companies have thrown the might of the law at the whistle-blower — one of its former chief executives, whose disclosures to the public protector put Trillian at the centre of state capture allegations.
Known as the “Trillian whistle-blower”, she faces:
• A claim to repay a R500 000 sign-on bonus;
• A Hawks investigation for alleged breaches of the Electronic Communications Act and for being in possession of “stolen” confidential company information;
• Threats of fines or jail time for perjury and a damages claim; and
• Accusations of contravening the Companies Act for allegedly failing to declare to Trillian her shareholding in an unrelated competitor company.
In the latest move, her former bosses have gone to the Labour Court to bar her from introducing as evidence any confidential company documents that may help her fight her case for constructive dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA).
She may not be identified following a ruling by the CCMA in January.
She has been found in contempt of the CCMA for failing to produce the explosive affidavit she gave the public protector last year. Her lawyers unsuccessfully argued that she could not comply with a subpoena to produce the document, because this would be in breach of the Public Protector Act.
Trillian said failure to do so was “wilful disobedience” — which her lawyers deemed a “backdoor” move to find her in contempt of court and so stall the CCMA proceedings.
On Wednesday, less than 24 hours after the Mail & Guardian emailed questions to Trillian, a dossier was being distributed to several media houses. This time, a source close to the investigation into the whistle-blower accused her of being part of a broader plot to aid Finance Minister Pravin Gordhan.
The source zoomed in on her romantic relationship with former spy boss Vusi Mavimbela, currently South Africa’s ambassador to Egypt.
In his capacity as director general of the National Intelligence Agency (NIA), Mavimbela cosigned an original 2002 memorandum of understanding between the agency and the South African Revenue Service for co-operation on investigations.
The Hawks, in their list of 27 questions to Gordhan last year relating to the so-called Sars rogue unit, asked for a copy of that agreement.
It is now generally accepted that a leadership change at the NIA caused the plan to fall away and the intended unit morphed into a Sars investigative one instead.
Among the documents circulated on Wednesday was a settlement proposal from the whistle-blower’s attorney to Trillian. The document proposes an R2.3‑million payout to “curtail protracted litigation and to avoid unnecessary legal costs”. This document seemed to support Trillian’s refrain over the past few months that the whistle-blower was a vindictive, greedy ex-employee.
Her lawyer, Peter Mosebo, confirmed that he submitted a settlement proposal on a “without prejudice” basis on February 14. But this was after Trillian’s senior counsel had twice asked for this, he said.
“In view of steep legal bills, my client agreed to consider such if the company was agreeable to a salary equal to one year’s pay. It is strange that details thereof have now landed up in the public domain.
“The issue is that my client is unemployed at this stage, and her employers have launched multiple cases containing mainly frivolous allegations, designed to cripple her financially,” Mosebo said.
Trillian has consistently denied any Gupta links, although one of the family’s close associates, Salim Essa, holds a 60% stake in the company.
It was also named in former public protector Thuli Madonsela’s State of Capture report as one of several that made payments towards the Guptas’ purchase of Optimum Coal. Trillian denied this.
The whistle-blower’s affidavit found its way into the public domain late last year and revealed:
• How her boss at Trillian, Eric Wood, allegedly told her in October 2015 that Nene was going to be fired and later sent her an email outlining the treasury’s new initiatives and his proposed fees for each of them;
• On December 9, the morning after President Jacob Zuma announced Des van Rooyen as the new finance minister, Wood allegedly told her that her colleague Mohammed Bobat would be the new minister’s special adviser; and
• That Bobat would channel tenders from the treasury and state-owned companies to a team at Trillian.
Trillian has repeatedly denied this.
The M&G has seen an affidavit Wood submitted to the Hawks, claiming the whistle-blower was helping his former partners at Regiments Capital to “extract revenge”.
He and his former partners are embroiled in their own legal battles — allegedly triggered by Regiments directors Litha Nyhonyha and Niven Pillay’s refusal to allow a Gupta buyout of their company.
Wood claims that his former chief executive cannot seek refuge in the Protected Disclosures Act because she also shared confidential company information with his ex-partners.
“Any disclosures made by [the whistle-blower] could never have been made in good faith. They are untrue utterances made by a vindictive employee wishing to humiliate and embarrass her employer after having resigned,” Wood said.
Trillian this week confirmed the cases involving the whistle-blower, adding that her “resignation” from the company cannot be construed as constructive dismissal.
The company said she had to repay the sign-on bonus because she left before the stipulated two-year period. The second case, it said, relates to breaches of her employment contract, specifically regarding the confidentiality of Trillian and its clients.
The litigation could have been avoided, it said, if the whistle-blower had acceded to Trillian’s request for the return of its confidential documents.
Trillian did not respond to a question about whether their legal action against one former employee could be seen as severe, harsh or punitive.
Legal moves afoot to unmuzzle the brave
Proposed amendments to the Protected Disclosures Act include protecting whistle-blowers against criminal and civil liability. This would ensure that if an employee is shown to have made a protected disclosure, they will not face related civil lawsuits or prosecution.
The Open Democracy Advice Centre, which has done much work on the rights of whistle-blowers in South Africa, says this is an important step to combat the actions sometimes used to victimise them.
In a research document titled Heroes under Fire, the organisation states that defamation claims were not uncommon. “The financial power of institutions means that these claims may be easily abused to try and silence legitimate acts of disclosure,” it says.
Alison Tilley, Open Democracy’s head of advocacy, said: “If you are an employer, one with deep pockets, you can shut the whistle-blower down.”
Whistle-blowers can approach a high court for an interdict if there is a nexus between what is happening and their protected disclosures, she said.
Asked about the case involving Trillian and the state capture whistle-blower, Tilley said she was not privy to the details. But, she added: “This is not a normal case. The stakes are high. As a whistle-blower, you can’t fight every action by the employer, who has the capacity to tie you down.”
African Christian Democratic Party MP Steve Swart has done extensive work on the Bill. He says whistle-blowers who make protected disclosures in line with the required process must enjoy full protection from victimisation.
Although companies or employers can pursue valid labour proceedings caused by such disclosures, he said it would be of great concern if the Trillian whistle-blower was being victimised after having made such far-reaching disclosures to the public protector.
He said the amendments to the Act are currently before the National Council of Provinces and are aimed at tightening the legislation to ensure greater protection for whistle-blowers.