Whistleblowers: Your testimony makes South Africa proud

South Africa does have the moral and intellectual capital to steer away from the abyss of failed state. But so many of the people who exemplify these qualities find themselves on the wrong side of the power divide.  That is because they have blown the whistle on corrupt practises and the abuse of power and are now suffering retaliation. But inherent in that crisis is the opportunity for human rights to acquire meaning, and the Constitution to become more than mere text.

Anyone watching the presentation by whistleblowers of their statement in response to the Zondo Report, part one at their media conference last Friday, could not fail to be impressed at the calibre of people who have signed up to it.  A normal society would see such people in leadership roles in the state, business and civil society.  A normal society would not subject such people to the weaponisation of legal processes that serve only to enrich lawyers, deepen the contagion of corruption and impoverish our institutions. 

This abuse of legal process is known variously as “litigation by attrition”, “lawfare” or “Slow suits” (for “strategic litigation on whistleblowers”). A normal society would not need for them to plead for protection and support after reporting and testifying on wrongdoing.  That is what any normal citizen would do to honour the social contract between citizens and state. A normal society would never tolerate a corrupting international management consultancy still to belong to a national business forum after being called out for engineering the repurposing of the tax authority to facilitate state capture. Bain has since withdrawn from Business Leadership SA under pressure. But Athol Williams remains determined to hold them accountable, saying “The withdrawal is a small victory for justice but the big victory still eludes us — full disclosure by Bain.”

• The Passenger Rail Agency of South Africa is in dire straits, but Martha Malebethe Ngoye and Tiro Holele remain under merciless intimidation in a Slow suit.  One of the charges is for “bringing the organisation into disrepute for testifying at the Zondo commission”. 
• The Estate Agency Affairs Board has all but lost the confidence of the estate agency industry. But chief executive Mamodupi Mohlala continues her autocratic reign by trying to get rid of Lindokuhle Tsibani, a financial manager who is now the only woman left standing up against her abuse of power.  
• The National Lotteries Commission continues to pursue a Slam suit (strategic litigation against media) against investigative journalist Ray Joseph and Slow suits against two of his sources, Sello Qhina and Mzikuzi Makatse, two employees who blew the whistle on fraud. 
• Bosasa once thrived for two reasons. Firstly, because the late Gavin Watson bribed ANC politicians and officials left right and centre to secure tenders.  Secondly because his chief operating officer Angelo Agrizzi showed remarkable ability to ensure that work exceeded specifications. Offenders got three decent meals a day and the women’s prison in Pretoria got a good library. Agrizzi could no longer live with his conscience and blew the whistle on the bribes Bosasa paid. Yet Agrizzi was arrested and charged after testifying and his denied his constitutional right to bail. He is the only person ever to be criminally charged under the Public Finances Management Act, and he is not even a public servant.   
• Public confidence in law enforcement agencies continues to wane because rogue cops intimidate, arrest and discredit those among them who follow their consciences to expose their wrongdoing. 
• Educational institutions struggle to deal with sexual abuse, cover-ups and abuse of power, but an educator, Prince Obilana, is suspended, has his home broken into by thugs, his family tied up and his laptop stolen, but he continues to stand firm against pressure to withdraw allegations of widespread sexual abuse by teachers in Mpumalanga. 

The economist Theodore Levitt said “organisations exist to enable ordinary people to achieve extraordinary things”.  Paradoxically, often an organisation of extraordinary people tends to achieve ordinary things, because conventional command and control management habits fail to inspire. Managers who ascend the corporate pecking order often do so in the mistaken belief that the acquisition of greater formal positional power will entitle them to mandate high performance by decree.  Extraordinary performance is inspired, not mandated.  

The group of whistleblowers I work with are extraordinary people and it is lamentable that the organisations they worked for are persecuting them rather than incorporating them to create a culture of excellence. Such a culture can only emerge if truth matters. 

Last Friday we saw evidence of the extraordinary  capability of the group. They planned and organised an event that brought them together with both local and international journalists, to read out a joint response to part one of the Zondo report.  

An edit of the video of the Whistleblowers for Change media conference is available on my YouTube channel Icosindaba, and speaks for itself as a phenomenon that has taken the whistleblowing movement across a new threshold, founded on a firm foundation of truth. 

The Whistleblowers for Change movement prizes truth above all else, and will speak truth to bullshit, wherever it comes from.  

Many of the Whistleblowers for Change members have been targets of fake news media retaliation tactics. My counsel to them is not to be sucked into trying to refute bullshit, as it will exhaust them. Popular social work researcher and author Brené Brown explains Brandolini’s “bullshit asymmetry principle”: “It takes a disproportionate amount of time and energy to refute bullshit than it takes to create it.” 

Watching an interview with advocate Tembeka Ngcukaitobi on TV, another insight suddenly crystallised to further explain why the Whistleblowers for Change is destined to become a powerful force for transformation of our society: they have simply asserted their constitutional rights. 

The interview arose out of an article he had penned for The Sunday Times responding to Minister Lindiwe Sisulu’s “bullshit” opinion piece claiming that the Constitution and rule of law had done nothing to change South Africa. Titled The Paradox of the Rule of Law, Ngcukaitobi’s article explained that while the law can be abused for unholy purposes (we have seen that in Slapp, Slow and Slam suits), the Constitution has provided a framework for the achievement of some spectacular successes that were the envy of other countries that lacked such a framework.

Retired Judge Dennis Davis wrote the following to commemorate International Human Rights Day in December 2006: “Rights should not really be seen as negative constraints upon government. Rights can empower ordinary people, in terms of which the substantive conditions of citizenship can be enhanced … Our Constitution is based upon the values of equality, freedom and dignity. These concepts do not gain content by simple recourse to a dictionary.  They require content that resonates with a diverse citizenry. 

“The Constitution has become more than a text. 

“For it to continue to both constrain and direct public power will depend ultimately on the citizens of this country.”  

That article from fifteen years ago spoke directly into the complex situation into which I had been pitched when a whistleblower from the Amadiba community on the Wild Coast sought my professional services to ensure the constitutional rights of his community would be vindicated.  They were facing a concerted co-option and subversion strategy by an Australian mining company, MRC, and its local BEE partner Xolco to obtain the manipulated consent to turn over their ancestral land for an open-cast mining project to extract heavy minerals. 

Thanks to Ngcukutoibi and Richard Spoor’s argument the high court in November 2018 upheld their right to free prior and informed consent. The same applicants and legal team have won an interdict to stop Shell’s seismic exploration for oil and gas on the Wild Coast.

It is only a matter of time before whistleblowers achieve a similar vindication of their constitutional rights, as a further cementing of South Africa’s place in the world as a place where human rights do acquire grounded meaning. 

The Whistleblowers for Change are about to make us proud again, despite the best efforts of some members of the executive and legislature to sabotage our democracy.  

We believe in the Constitution as something that “manifestly enhances the concept of citizenship”. The words Judge Davis wrote in 2006 apply just as much today. 

John G Clarke is a social worker, lay theologian, filmmaker and writer seeking to ‘write’ the wrongs of the world by ensuring that human rights acquire meaning as a basis for restorative justice and peacebuilding