The Whistleblowers

By Mandy Wiener

Whistleblowers are seldom seen as heroes. Instead, they are often viewed through a negative lens, described as troublemakers, disloyal employees, traitors, snitches and, in South Africa, as impimpis or informers. They risk denigration and scorn, not to mention dismissal from their positions and finding their careers in tatters.

With corruption and fraud endemic in democratic South Africa, whistleblowers have played a pivotal role in bringing wrongdoing to light. They have provided an invaluable service to society through disclosures about cover-ups, malfeasance and wrongdoing. Their courageous acts have resulted in the recovery of millions of rands to the fiscus and to their fellow citizens as well as improved transparency and accountability for office bearers and politicians. Some would argue it was whistleblowing that brought down a president and the corrupt ‘state capture’ regime.

But in most cases, the outcomes for the whistleblowers themselves are harrowing and devastating. Some have been gunned down in orchestrated assassinations, others have been threatened and targeted in sinister dirty-tricks campaigns. Many are hounded out of their jobs, ostracised and victimised. They struggle to find employment and are pushed to the fringes of society. Where there is litigation, this drags on and on through the courts. Mental health and relationships suffer. The psychological burden of choosing to speak up when there has been little reward or compensation is a heavy one to carry.
The Whistleblowers shines a light on their plight, advocating for a change in legislation, organisational support and social attitudes in order to embolden more potential whistleblowers to have the courage to step up.

Their status as whistleblowers is sometimes contentious – this book delves into whether they deserve the status or whether they were, in fact, complicit in the wrongdoing they claimed to expose.

These are the raw and evocative accounts of South Africa’s whistleblowers, told in their own voices and from their own perspectives: from the hallowed corridors of parliament to the political killing fields of KwaZulu-Natal, from the fraud-riddled platinum belt to the impoverished, gang-ridden suburb of Elsies River, from the gantried freeways of Gauteng to the Bosasa blesser’s facebrick campus in Krugersdorp, from the wild east of Mpumalanga to the corporate jungle of Sandton, and from the wide farmlands of the Free State to that compound of corruption in Saxonwold.

• Language: English
• Publisher: Pan Macmillan South Africa
• Release date: Oct 1, 2020
• ISBN: 9781770107052

Mandy Wiener

Mandy Wiener is an award-winning investigative journalist and author of the true-crime bestseller Killing Kebble: An Underworld Exposed, the acclaimed memoir My Second Initiation (co-written with Advocate Vusi Pikoli) and Behind the Door: The Oscar Pistorius and Reeva Steenkamp Story (co-written with Barry Bateman). Wiener has been reporting on crime, the courts and politics in South Africa for the past decade.

Book preview

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Also by Mandy Wiener

Ministry of Crime: An Underworld Explored (2018)

‘To be able to pierce the psychologies of these players in what has proved to be a bloodthirsty game that has cost South Africa billions of rand is an exceptional feat on the part of Wiener. One would imagine her research has come at great personal sacrifice, and every praise she is afforded is thoroughly deserved. Ministry of Crime confirms her as the country’s preeminent nonfiction crime writer.’–

john harvey

, Sunday Independent

Behind the Door: The Oscar Pistorius and Reeva Steenkamp Story (with Barry Bateman) (2014)

‘Definitive, engrossing, fascinating, brilliant and utterly unputdownable. Wiener has no equal when it comes to true crime, and Bateman’s first-journalist-on-the-crime-scene insight gives it a huge boost.’ –

deon meyer

My Second Initiation: The Memoir of Vusi Pikoli (with Vusi Pikoli) (2013)

‘An account that is as bold, honest and truthful as it is painful and discomforting. Vusi Pikoli is a person of unquestionable integrity, for which South Africa will be eternally grateful.’ –

barney pityana

Killing Kebble: An Underworld Exposed (2011)

‘After five years of following every thread and detail of the Kebble case Wiener not only had a complex story to which few other journalists had access, but also the perspective needed to turn it into a riveting bestseller that would be both insightful and accessible.’ –

mail & guardian

The Whistleblowers

Mandy Wiener

With photographs by Felix Dlangamandla

MACMILLAN

First published in 2020

by Pan Macmillan South Africa

Private Bag X19

Northlands

2116

Johannesburg

South Africa

www.panmacmillan.co.za

isbn

978-1-77010-704-5

e-isbn

978-1-77010-705-2

In the text © Mandy Wiener 2020

In the photographs © Felix Dlangamandla 2020

All rights reserved. No part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form, or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of the publisher. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages.

Every attempt has been made to ensure the accuracy of the details, facts, names, places and events mentioned in these pages, but the publisher and author welcome any feedback, comments and/or corrections on the content, which is based on numerous interviews, court documents, newspaper and news reports, author experiences and other sources. Right of reply has been offered wherever appropriate.

Editing by Alison Lowry

Proofreading by Sally Hines

Design and typesetting by Triple M Design, Johannesburg

Cover design by publicide

Author photograph by Felix Dlangamandla

‘I don’t like the term whistleblower. It’s impersonal. It’s like a shadowy, faceless, voiceless person in an underworld who has no family, has no soul. It’s almost a ghost. But I guess it’s a whistleblower because most of us are anonymous. We don’t get awards. We don’t get money. We are heroes. We are warriors. And you need to recognise that. Investigative journalists call us sources. No. I am a human being. I am a sister. I am a lover. I’m a career person. I have aspirations. I’m a human being. And where do you get your sources from? You get it from us. You guys go back to the office, write a story, you are paid. I am not paid. I have given up my livelihood, risked my life for South Africa, and I’m left with the aftermath of unemployment, depression, post-traumatic stress disorder, anxiety. You can name it. Criminal charges, everything. You guys go back to work on Monday. You get an award, you get paid, you get a pat on the back. Nobody recognises or funds us for the aftermath and it’s ugly. It’s nonsense. We are heroes. We are not whistleblowers.’

– mosilo mothepu, former trillian financial advisory ceo

Contents

about the photographer

introduction

1. ‘Hate Me, But Don’t Hurt Me’ – Moss Phakoe and Corruption in the Rustenburg Municipality

2. Holding the Bread Line – The Legacy of Imraahn Ismail-Mukaddam

3. Up in Arms – Patricia de Lille and Sue Delique

4. Murder Inc in the Wild East –The Mpumalanga Crocodiles and the 2010 World Cup

5. Captain Kirk and the Starship e-Toll

6. The Hard Drive that Sparked a New Dawn – GuptaLeaks

7. Milking the State – The Tragedy of the Estina Dairy Farm

8. ‘Just a Headline’ – Suzanne Daniels and Connecting the Dots at Eskom

9. Skin in the Game – Bianca Goodson, McKinsey Slayer

10. Walking into a Shitstorm – Simphiwe Mayisela and the PIC

11. Troublemaking Women –Rosemary Hunter, Michelle Mitchley and the Case of the Unpaid Benefits

12. Stalin and the Chicken – Angelo Agrizzi, Andries van Tonder and Bosasa

13. A Badge of Honour – Thabiso Zulu and the Political Violence of KZN

14. Changing the Culture – Protection, Acknowledgement, Reward

references and source material

acknowledgements

About the Photographer

Felix Dlangamandla currently works for Daily Maverick and prior to that was at Media24, but he started his career when the South African newspaper Beeld hired him in 2003. Previously, he had taken on odd jobs and internships and had completed a diploma in photography.

Felix was one of a handful of photographers who saw the tragic story of Marikana unfold, having spent days at the infamous koppie in the small North West mining town.

Besides covering what often become violent protests in South Africa, he witnessed and told the story of the death of a giant: the passing of Nelson Mandela.

Felix continues to cover the ever-changing political landscape and manages to capture glimmers of hope and happiness, even in a hostile environment where the majority of people live in abject poverty.

Felix has also built up a portfolio outside South Africa. In 2008, he captured the post-election violence in Kenya; in 2010, he covered the aftermath of the devastating earthquake in Haiti; and, in 2011, he recorded the tsunami disaster in Japan.

Over the years, his work has won several awards. Some of the accolades include the 2007 SAB Sport Journalist of the Year award, the 2010 Mondi Shanduka News Photography Award and, in 2003, a Commendation for Features Photography. He won the Beeld Photographer of the Year award in 2005 and was runner-up at the 2011 Media24 Legends Awards in the Photographer of the Year category.

‘Photography is truth’ is a quote by Jean-Luc Godard that Felix feels sums up his career. His passion is to capture the truths of the human experience, which he sees as the greatest privilege that goes with calling himself a news photographer.

Introduction

What do you expect when you’re going to meet a ghost?

In the middle of a blustery winter’s day I sat on a pavement outside a popular city restaurant. The spot I was parked at was an unlikely choice of meeting place for a clandestine, face-to-face encounter that had been shrouded in secrecy. As I sipped on my lukewarm coffee, I realised I knew very little about the person I was due to meet. Would they be South African or foreign? Short, tall? Old, young? Male, female? Sane or not? And did any of that truly matter?

I met this individual several more times over the next few months as they vacillated on whether to go public and reveal their identity, or stay anonymous. In the end, they chose the latter. Over the next year I had many more meetings with other whistleblowers, each engaged in their own inner turmoil around whether or not to emerge from hiding. Some agreed to do so but many did not. For those who did not, they believed the risk outweighed the reward.

This is the ultimate dilemma for a whistleblower. Full disclosure can often be the best protection – once there is nothing to hide and you are in the full glare of the public, not only is an enormous weight lifted from you, but you are also unlikely to be targeted. Sunlight is the best disinfectant. But there is a different kind of vulnerability that comes with exposing your identity. A scrutiny of your motives and your intentions and your agendas. It can be safer to stay in the shadows where no one knows it was you and you can disappear into a mundane existence without unwanted attention.

Meeting and listening to that first whistleblower was the genesis for this book. They impressed on me the impact blowing the whistle can have on the people who decide to do so. So often whistleblowers make an enormous contribution in exposing the truth but in doing so they can be placing themselves in great danger. Their lives are turned upside down. They face the prospect of unemployment. While everyone else moves on and forgets about them, they are left alone in the dark, desperately trying to feel their way out of a situation they did not foresee, continually haunted by fear and uncertainty.

I wanted to tell these stories and ensure that they are recorded for posterity. I wanted to remind us all about the humanity behind them and of the great debt we as so many owe so few. Perhaps it will change the culture of the country and how whistleblowers are perceived. Instead of being labelled impimpis, snitches and traitors, maybe whistleblowers will be celebrated as the heroes they are. That is my hope.

Daniel Ellsberg. Edward Snowden. Mark Felt. Chelsea Manning. Katherine Gun. John Githongo.

These are some of the most famous whistleblowers in modern history. Their names will be familiar to many South Africans while, ironically, those of fellow citizens who have made significant disclosures that have altered the trajectory of our country are less well known.

Perhaps this is because less has been written about them in the media. Or maybe it’s because, locally, those who blow the whistle are not romanticised or celebrated as they are in the United States (US) or United Kingdom (UK). It could be a cultural perspective in South Africa that whistleblowers have long been viewed as informants. That is not to say that whistleblowers haven’t made substantial contributions to our democracy, rule of law and crime fighting over the years.

According to the dictionary definition, a ‘whistleblower’ is a person who tells someone in authority about something illegal that is happening, especially in a business or government. They are someone who tells their employer, a regulatory body, a government official, the police or the media about an illegal or dangerous activity that they have become aware of. Legally, ‘whistleblowing’ is defined as raising a concern about wrongdoing within an organisation.

The term is thought to date back to the Elizabethan era when ‘to whistle’ or ‘to blow’ was to reveal secret information. It is also a reference to the literal blowing of a whistle by British police officers or ‘bobbies’ who used whistles to raise the alarm, alerting the public or fellow police to a crime.

While whistleblowers provide an invaluable service to society through tip-offs about cover-ups, corruption and wrongdoing, the perception of what they do has long carried negative connotations. They go by many an alternative name too. Snitch. Nark. Grass. Rat. Informer. Tattletale. And no one likes a tattletale.

In the 1960s and 70s, American political activist Ralph Nader helped reposition the term ‘whistleblower’ when he advocated for improved legislation and accountability by executives and authorities. In 1971, when Daniel Ellsberg, a military analyst, leaked portions of a classified report, which became known as the Pentagon Papers, the disclosure helped strengthen opposition to the Vietnam War. But it also considerably contributed to the public perceptions of whistleblowers, despite President Richard Nixon’s White House labelling Ellsberg as ‘The Most Dangerous Man in America’.

Since Ellsberg’s reveal, a steady stream of whistleblowers emerged in the US to disclose state secrets.

Edward Snowden, a CIA contractor, copied and leaked highly classified information from the National Security Agency in 2013. Chelsea Manning, a US Army intelligence analyst, released nearly 750 000 classified or sensitive documents to WikiLeaks. Katherine Gun was a translator at the UK’s intelligence agency GCHQ when she leaked a ‘dirty tricks’ memo in the hope of stopping the Iraq War – her story is told in the 2019 movie Official Secrets. John Githongo, whose story is captured in the book It’s Our Turn to Eat, was Kenya’s anti-corruption czar. He exposed graft in that country after recording conversations with powerful officials.

In his seminal book on the topic, Crisis of Conscience, Tom Mueller writes that we are living in a period of sweeping corruption and a golden age of whistleblowing. Whistleblowers are forcing us to confront fundamental questions about the balance between free speech and state secrecy and between individual morality and corporate power.

Most recently, whistleblowers have made global headlines.

In August 2019, an anonymous whistleblower in the US lodged a complaint containing a series of allegations raising concerns that President Donald Trump used his presidential powers to solicit foreign electoral intervention in the 2020 presidential election. These centred around a phone call between Trump and the president of the Ukraine, during which Trump apparently pressured his counterpart to open an investigation into former vice-president and election rival Joe Biden. The tip-off led to impeachment hearings, which Trump survived.

In December 2019, Chinese ophthalmologist Li Wenliang, who was working at the Wuhan Central Hospital, warned his colleagues about a possible outbreak of an illness. The virus, resembling a severe acute respiratory syndrome, was later identified as COVID-19. His warnings were shared publicly, and Li Wenliang himself became infected and subsequently died. The virus about which he had tried to raise the alarm went on to kill hundreds of thousands of people all over the world.

There have been other whistleblowers across the globe over the past few years. Among other scandals, whistleblowers exposed Cambridge Analytica’s use of Facebook data to help skew elections, the toxic levels of lead in Flint, Michigan’s drinking water, the billion-dollar looting of Malaysian public funds by government insiders and Goldman Sachs, conspiracies to hide emissions by Volkswagen and other carmakers, and the Theranos blood-testing scandal.

Mueller argues that whistleblowing is spreading because it works. At least, from an American perspective.

‘In 2018 alone, the SEC [Securities and Exchange Commission] whistleblower office received 5 282 whistleblower reports from people in all fifty states and seventy-two foreign countries, and has since its founding in 2010 caused wrongdoers to pay $1.7 billion in sanctions. Since 1986, the False Claims Act has been used to recover some sixty billion stolen tax dollars. The return on other government fraud investigations is a fifth the size.’¹

The False Claims Act (FCA), also known as the Lincoln Law, is a US federal law that imposes liability on people or companies who defraud government programmes. This legislation is the government’s primary litigation tool in combating fraud and includes what is known as a ‘qui tam provision’, which allows people to file court actions on behalf of the government. These individuals, known as ‘relators’, stand to receive a portion – between 15% and 30% – of any recovered damages. As of 2019, over 71% of all FCA actions were initiated by whistleblowers.

Mueller sets out how whistleblowing has thrived because of three important trends in American society: the rise and normalisation of fraud, the growing interpenetration of corporations and the government, and the spread of secrecy.

‘Taken together, secrecy, public-private interpenetration and pervasive fraud corrode public trust. They create a strong though opaque sense of an economic and political rigged game engineered by corporations and financial elites, of stark inequities built into our society, and the suspicion that the basic tenets of American society – equal opportunity and equal justice, truly free markets, and the social contract itself – are being subverted. This, in turn, creates a devastating sense of impotence, a fear that individuals are losing their voice – that We the People are being shut out of our own commonwealth. The rise of whistleblowers signals that many citizens demand a realignment of legality and morality, a new conception of personal and organizational ethics.’²

By comparison, whistleblowing in South Africa is far from ideal. The legislative framework is complicated and, for the layperson, difficult to comprehend. There are gaps in the law that limit the accountability of companies and the government and do little to encourage potential whistleblowers to come forward. Instead, many are expected to martyr themselves on the altar of ‘doing the right thing’. There is no incentive to motivate them other than their own moral courage. The risk is often not worth the reward, and few cases result in vindication and justice. For many, the ‘reward’ for speaking up is vilification, unemployment, bullying, ostracisation, intimidation, harassment, prosecution, the breakdown of their marriage, and a detrimental impact on their mental health.

With a rise in corruption and fraud in democratic South Africa, the imperative role played by whistleblowers has been increasingly highlighted.

Systemic corruption in the country festered through the so-called state capture years under President Jacob Zuma, with widespread looting at parastatals and state agencies. According to Minister Pravin Gordhan, it’s estimated that up to R500 billion was siphoned off from the fiscus as a result of this orchestrated malfeasance. Low-level corruption at municipalities and among councillors and law enforcement officers became widespread. This occurred as the criminal justice system buckled under the pressure of the capture.

Umbrella body Anti-Intimidation and Ethical Practices Forum (AEPF), a collective forum consisting of various professional bodies concerned about the rising levels of corruption, fraud and lack of corporate governance, released its last Ethical Practices Survey in 2018.

The survey, answered by 1 900 South African professionals, is a barometer of the perceptions of ethical practices. It found that 84% of respondents in the public sector and 89% in the private sector believe it is their personal duty to report unethical behaviour. It found that ethical sentiment among professional South Africans dropped sharply following a bruising year of corporate scandals. The survey also revealed that one in four believe financial success is more important than doing the right thing.

‘There is still too high a percentage of respondents in both sectors who report that they have been intimidated for doing the right thing (26% in the public sector and 17% in the private sector), that they feared losing their job for doing the right thing (26% in the public sector and 20% in the private sector), that they were threatened for speaking out about unethical behaviour (24% in the public sector and 15% in the private sector) and that they feared for their lives for reporting unethical behaviour (25% in the public sector and 20% in the private sector),’ said the report.

Transparency International’s Global Corruption Barometer published in 2019 supports this. The results showed that more than half of all citizens thought corruption was getting worse in South Africa and a staggering 70% believed the government was not doing enough to tackle the problem.

Alarmingly, the percentage of people who paid a bribe for access to essential services more than doubled, from 7% in 2015 to 18% in 2019. Those who reported having paid a bribe to police stand at 19%, an increase from the 3% reported in 2015. Despite this, the report raised hope for positive change. More than half of South Africans (57%) felt that citizens could help stop corruption.

Similarly, PWC’s biennial Global Economic Crime and Fraud Survey, published in 2019, which examined over 5 000 responses from 99 countries, exposed how corporates in South Africa didn’t take reports of fraud or corruption seriously.

Forty-two per cent of respondents didn’t conduct any investigation following a report and more than half the incidents were not disclosed to the boards of the respective companies. Only 58% of South African respondents conducted an investigation of their most serious fraud incident. In almost 60% of cases, the incident was not disclosed to the board at all. Even more shocking was that 72% of incidents were not disclosed to the auditors, while 66% of incidents were not disclosed to regulators or law enforcement, and 59% of incidents were not disclosed to the board of directors.

In summary, corporates are failing to act when they receive whistleblower reports.

Frustrations have also been exacerbated by a lack of accountability. We have seen very few arrests or prosecutions for these crimes. Expectations were heightened with the appointment of National Director of Public Prosecutions Shamila Batohi, who was selected to lead the National Prosecuting Authority (NPA) on the wave of Cyril Ramaphosa’s New Dawn in 2018. But, at the time of writing in 2020, few high-level state capture prosecutions had materialised.

In the process of writing this book, I became fascinated with what motivates an individual to become a whistleblower. What is the source of their sense of justice – is it religious, an upbringing, a loyalty, a commitment to doing the right thing? Or is it more sinister, rooted in retaliation, vindictiveness or even self-preservation? Perhaps the individual never set out to become a whistleblower but fell into the role by circumstance – an accidental whistleblower?

In many of the stories I recount in this book the whistleblower who came forward was not the only one who held the explosive knowledge that could have been released into the public domain. More than one person was privy to the information. So what makes some people look the other way, and become complicit through their silence, while others, the whistleblowers, feel compelled to risk everything to expose the wrongdoing? Is there a particular character trait or personality type that makes a whistleblower?

This is extremely difficult to define. In all of the interviews I have done with whistleblowers, I have not discerned a ‘type’. The whistleblowers come from various backgrounds, upbringings, world views and lived experiences. Some have similarities, such as strong single mothers, an obsession with details and doing things according to instructions, or a heightened sense of morality, but discerning a common thread was elusive.

In Crisis of Conscience, Tom Mueller tries to interrogate what differentiates a whistleblower. ‘Some may see sharper lines between right and wrong than more successful people. By temperament, they may be more straightforward and down-to-earth, more egalitarian, less respectful or fearful of authority. They may perceive the harm they witness as having specific victims.’³

He suggests that some form of hardship, such as a parent’s early death or a struggle with illness or disability, may lead certain people to see through the eyes of the vulnerable. A poor, rural upbringing may give certain whistleblowers the ability to shake off the fear of retaliation. A humble background also appears to lend some whistleblowers a sense of resilience, an awareness of alternative ways of being that can break the spell of the team.

‘Often, though, it seems mere chance, a lucky trick of timing, that makes whistleblowers see the world differently,’ adds Mueller. ‘The truth is, there is no whistleblower type, no one personality with unique potential to call out wrongdoing.’⁴

This means that anyone in the right place and circumstance could end up doing the right thing and become a whistleblower. All of us have got the potential to follow that path. ‘Which means we all have the capacity to speak truth to power,’ concludes Mueller.⁵

Former director of the Open Democracy Advice Centre (ODAC) and activist Alison Tilley says that in her experience whistleblowers are often quite rigid and inflexible people, who are detail oriented and linear in thinking.

‘Things have to be done in a very specific sort of way,’ she says. ‘They get into the weeds incredibly fast. They can be difficult as clients because they have difficulty sometimes distinguishing between really big, important bad things and small bad things. They’ll sort of lump them all together and it’s quite difficult as an attorney working with them. It’s difficult for them to focus on the big narrative of what’s going on because they’ll get distracted by, you know, so and so did this and it was a very bad thing and I complained to X and X didn’t do anything about it, and you’re like this has nothing to do with it … They won’t have a sense of what to let slide. Letting things slide is just not a thing. They’re often a bit eccentric.’

Wayne Duvenage, the CEO of OUTA (Organisation Undoing Tax Abuse), believes whistleblowers are motivated by what he calls ‘moral courage’, which has its roots in nurture rather than nature.

‘I think they’ve got strong values,’ he says. ‘They get extremely angry with the fact that the rules are being broken, so they are very conscious people around doing right. I don’t know if it’s driven sometimes by religion, by deep beliefs, but it’s the moral conscience. I think it comes from people who have been brought up to have strong values around theft, corruption and just doing wrong. It’s not that you’re born with it, it’s the way you have grown up, the values that your parents have entrenched in you. And then it’s the moral courage to be able to speak up. I think in many cases it’s the ability to have a backup system. It’s easier for somebody to speak up if they know they’re not going to be out on the street and starving, and it’s very hard for people who don’t have that backup. Those people are extremely courageous.’

University of Johannesburg sociology professor Tina Uys began researching whistleblowing in the South African context after she realised her husband, a former South African Reserve Bank employee, was a whistleblower. She has written numerous papers on the issue over the past two decades. Whistleblowing, she says, is typically viewed as a betrayal, a deviant act, threatening to the organisation against which it is made. It is seen as disloyal. As a result, the whistleblower is dealt with as one would deal with a traitor. Some definitions of whistleblowing make reference to ‘informing’.

In the South African context, equating whistleblowing with informing is particularly problematic. ‘During apartheid informers to the police and security structures were called "impimpis" and their betrayal of the struggle against apartheid was viewed in a very negative light,’ says Uys. ‘As punishment for their betrayal, impimpis were often necklaced. The promotion of whistleblowing in South Africa therefore requires a clear distinction between whistleblowing and the activities of an "impimpi. Confounding whistleblowing with informing sometimes leads to people discrediting whistleblowing as being counter-revolutionary".’⁶

Crucially, whistleblowing and informing are not the same thing, says Uys. ‘While informers are the lackeys of the powerful, whistleblowers curb the abuse of power. As the speakers of truth to power, whistleblowers disrupt the status quo; they always find themselves at the losing end as the playing fields are never level. In South Africa this implies that the exposure of the abuses of the apartheid government in the past would now translate into exposures of the transgressions of the liberation movement that has become the African National Congress (ANC) government of the new South Africa. Informers, therefore, promote the interests of the powerful, often receiving a reward of some kind, while whistleblowers raise concerns about illegal, unethical, or dangerous practices of the powerful.’⁷

Uys also examines the role the collectivist value system of ubuntu plays in whistleblowers’ decisions to come forward. Ubuntu implies that ‘we can only be people in and through other people’ and places emphasis on the concepts of morality, humaneness, compassion, care, understanding and empathy. ‘The emphasis that ubuntu places on promoting the principles of communal relations, harmony, and consensus seems to preclude the generally individualistic act of whistleblowing, where perceived organisational wrongdoing is exposed in the interest of the more abstract ideal of promoting the public interest,’ argues Uys.⁸ In other words, those who subscribe to the concept of ubuntu are less inclined to whistleblow.

It could also be argued that it’s accepted in traditional African culture that there is a collective responsibility to uphold the law and if an individual sees wrong being done and does nothing to stop it, or doesn’t report it, then that individual has incurred responsibility for the act. ‘A high commitment to ubuntu will also foster whistleblowing if community members are made to understand that corruption usually has a harsher impact on the poor than on the wealthy,’ Uys writes.⁹

Among the ongoing academic research in the field of whistleblowing and what motivates people to speak out is that being undertaken by GIBS/Nottingham Business School. Researchers Professor Mollie Painter and Dr Elme Vivier at the Responsible and Sustainable Business Lab (RSB Lab) at Nottingham, and Professor Nicola Kleyn, Rabbi Gideon Pogrund and Dr Theresa Onaji-Benson at the Gordon Institute of Business Science (GIBS) Ethics and Governance Think Tank in Johannesburg have identified some key reasons that motivate whistleblowers to speak out: personal sense of right and wrong; empathy and care for others – particularly those who would be adversely affected by the corrupt practice; professional role and purpose – a sense of one’s role as a professional in the organisation and being accountable against a professional code, for instance; social and cultural upbringing – and a sense of the collective; company interest and the importance of following proper procedure, compliance, value for money; personal justice and sense of betrayal; and personal gain (where whistleblowing may also be done by guilty parties trying to save themselves).

I have spent a great deal of time wondering why people respond in different ways to the whistleblowing experience. Some have been left deeply traumatised and suffer what could be defined as post-traumatic stress disorder (PTSD). Their lives have been decimated and they have no jobs, their marriages have failed, they have no normalcy. Others have embraced the role, making it a career, becoming ‘professional whistleblowers’. They have gone on to lead organisations, become activists and advise others to take the leap.

Professor Emeritus C Fred Alford is considered one of the world’s foremost scholars on whistleblowing. His 2001 book Whistleblowers: Broken Lives and Organizational Power and several subsequent papers he’s written examine the narratives of whistleblowers who made public disclosures. He identifies three prominent themes: ‘choiceless choice’, ‘stuck in static time’, and ‘living in the position of the dead’. All of the individuals who feature in my book could fit into these categories. The narratives are similar; even the phrases they repeatedly rely on are similar.

Choiceless choice ‘is a formula for relief from the almost unbearable regret of having let oneself be sent on a suicide mission’, says Alford.¹⁰ It embodies the refrain of many whistleblowers. I often heard the words, ‘I did it because I had to’ or ‘I wouldn’t be able to sleep at night’ or ‘I couldn’t live with myself if I hadn’t done anything’.

Referring to the static narrative, Alford talks about chronology: ‘Chronology is the imposition of a powerful, primordial meaning structure on chaos and fragmentation. Chronology is both the alternative to fragmentation and another form of it, sequential fragmentation, the fragments ordered into line, like a cold and ragged queue of strangers who do not even share the time of day … What marks a static narrative, stuck in chronological time, is the way in which it subtly substitutes sequence for plot, including the plot that is character development.’¹¹ This, too, resonates for me. I saw it in the recounting of stories in technical minutiae and how individuals would relay to me how one development occurred after the next, chronologically. And then this happened and then that and then that.

The third whistleblower narrative is ‘living in the position of the dead … A few whistleblowers sounded free, but hardly in the conventional sense,’ writes Alford.¹² His reference is to a Japanese expression, ‘one who lives as already dead’. To live as if one is already dead is what is said about a person who has suffered a terrible experience of shame, humiliation and loss and lived through it. I saw this reflected among the most despondent of the whistleblowers I interviewed, the ones who battled to move on with their lives and recover from the experience. They were immersed in what had happened or were resigned to their fate. ‘I didn’t care what people thought any more,’ was a sentence I heard more than once.

A sub-category of Alford’s is the ‘paranoid narrative’, where ‘the whistleblower talks more like an external narrator, telling us from a position of vast remove about a world that considers him terribly important … paranoia finds meaning everywhere. Paranoia is a surfeit of meaning, the world overflowing with meaning. Paranoia is the will to meaning. Or rather, paranoia is a last desperate attempt to flood the world with meaning. Paranoia is a defence against loss of meaning, the same loss of meaning that is the source of dread.’¹³

Paranoia was a thread I recognised time and again. It ran through many of the narratives of those I interviewed. At times it would translate even as narcissism or an elevation of their role in the events that occurred. A lawyer acting for one of those profiled in this book explained it to me like this: ‘Whistleblowers can often see things in a very insular way, like looking at the world from underwater. Some of these contradict themselves frequently out of fear and/or having received the wrong legal counsel.’ I found this an apt description.

It must also be said that this paranoia is often rooted in truth, that there is good reason for a whistleblower to be paranoid. As I listened to some of the stories being relayed to me, I found myself thinking what they were telling me couldn’t possibly be true, that the threats as described were embellished or even fiction, or that the whistleblower had become mentally impacted by the experience – only to realise afterwards that what they were saying was entirely true.

Deciding who should fall into the category of ‘whistleblower’ and who should not is a contested issue.

For Alison Tilley it is black or white. Either you are exposing wrong­doing or you are not. If you are in some way complicit, then you should not be defined as a whistleblower. And she has no room for those who seek redemption after the fact. ‘So many people who are kind of caught with their hands in the cookie jar and they spill the beans, and then they’re like I’m a whistleblower.’

I don’t see it so starkly. My personal view is that there is a spectrum. On the one end are those whistleblowers who embody virtue and integrity, who make it their absolute mission to hold power to account, whose intentions are noble and who act in the interests of the greater good. Somewhere in the middle are those who never set out to be whistleblowers but have fallen into the role – they mulled it over for a period of time and realised that they would be complicit in their silence if they did not act. At the other end of the spectrum are those who are involved in wrongdoing, who acknowledge their complicity, and whose motives to disclose are in their own self-interest and who whistleblow as an act of self-preservation. For me, they are still whistleblowers, regardless of their motives.

Attorney Zanele Mbuyisa, legal counsel for whistleblowing platform PPLAAF (Plateforme de Protection des Lanceurs d’Alerte en Afrique/Platform to Protect Whistleblowers in Africa), and who represents various whistleblowers, sees two categories.

‘You have the whistleblower who sees something wrong at work and they whistleblow – straightforward whistleblower. Then you have the whistleblowers who knowingly or unknowingly were complicit in the wrongdoing, and they went and got legal advice and the legal advice was, protect yourself and be a whistleblower.’

Mbuyisa believes that whichever of these two categories an individual might fall into, they deserve protection – even if they were complicit.

‘Whether you’re right or wrong, when you make that protected disclosure, it is important because sometimes you cannot prosecute the higher ups without the people who were in there, complicit in it. Do I say those people should escape? No. Actually, I think they may have an extra burden, because for them to get immunity from prosecution upfront they have to disclose everything. Because the court has to be convinced that they were truthful throughout with their testimony. I agree with you that some people become accidental whistleblowers and this is where the problem comes in, when you become an accidental whistleblower without knowing that you’re a whistleblower,’ says Mbuyisa.

Tilley sees it this way: ‘Once you’ve given evidence in front of a formal body in exchange for whatever it is that you think that you’re going to get, I regard you as having moved beyond being a whistleblower. A whistleblower isn’t the person who is committing the wrong. The whistleblower is the person who raises concern in the public interest; they don’t raise a concern in their private interest. So if you’re a state witness in a criminal matter, you’re not a whistleblower,’ she says.

A clear distinction should be made between being a whistleblower and being a witness. Someone can be a whistleblower and not be a witness in a criminal trial. Alternatively, a person can be a witness in a criminal trial and be offered indemnity or a reduced sentence in exchange for their testimony, but not necessarily be a whistleblower.

Tilley doesn’t believe the motive to blow the whistle should matter. ‘If you say I’m going to raise a concern in the public and it is in the public interest to raise that concern, and I also happen to hate the person I’m raising the concern about – I don’t care. I’m not getting into the secrets of the human heart. I’m not too fussed about what your hidden secrets are about why you’re doing it. If it is something you are raising and it would be in the public interest to be raised, well, yup, that puts you in the box. If you are raising it after the fact because you got caught, then that’s a different thing. It’s obviously a good thing that you’re a state witness and you’ll get your indemnity and that’s all very nice, but you’re not a whistleblower.’

On the spectrum as I see it, I would define even those who come forward after the fact and expose the inner workings of a criminal enterprise for their own self-interest as whistleblowers. They’re on the far end of the spectrum, but they are on it.

Many, if not all, of the stories in this book need to be seen against the prevailing legislative framework governing whistleblowing in South Africa. Overall, the legislation has proven to be horribly inadequate or, at best, ill-suited to the context.

There are various laws that govern whistleblowing and, more specifically, different categories of disclosures. The Protected Disclosures Act (PDA), which was passed in 2000 and amended in 2017, is the primary piece of legislation concerning whistleblowing in the country. The others are the Labour Relations Act of 1995, which protects whistleblowers from unfair labour practice or unfair dismissal; the Companies Act of 2008, which governs whistleblowing within companies and protects whistleblowers against liability; and the Protection Against Harassment Act of 2011, which can help a whistleblower get a protection order against a person who is harassing them. Then, of course, there is the Constitution, which balances the rights of equality before the law with the right to freedom of expression and the right to fair labour practices, among others.

The PDA, which is occasionally referred to as the Whistleblowing Act, applies to both the public and private sectors. It sets out who can make disclosures, how to make them, who they can make them to, and how to ensure that they are protected. The Act places an obligation on employers to ensure there are processes and policies in place to receive whistleblowing reports and information about wrongdoing and to also inform their employees of these protocols. The PDA is intended to protect whistleblowers from occupational detriment, such as being disciplined, suspended, harassed, intimidated, transferred or fired.

Commentators argue that the PDA is not practical in nature, that it remains too labour focused as it only caters for a corporate or employment environment. In 2017, the Act was amended to broaden the pool of people who could be covered.

‘There was a previous definition of employee that was far more narrow,’ says Cherese Thakur, advocacy co-ordinator at amaBhungane Centre for Investigative Journalism. The amendment introduced a new definition – that of a ‘worker’ – which was ‘to make sure that the PDA explicitly protects an independent contractor as well as any person carrying on the business of the employer – for instance, a volunteer or an intern. Anybody who interacts with an employer, whether a company or an individual, and furthers their business may be privy to information that’s worthy of disclosure. That was an important expansion.’

However, there is no law that protects a more general whistleblowing act. So, for example, if you want to expose a law enforcement officer for wrongdoing, or if you are a learner or parent at a school and you want to blow the whistle on the conduct of staff, these would not fall under the PDA and would not technically be considered whistleblowing.

The Act requires whistleblowers to use a company’s internal procedures as their first port of call, if they want their disclosure to be considered ‘protected’ by the PDA. As amended, however, it now also allows for disclosures to be made to a variety of other places, including to a lawyer, the Public Protector, the Auditor-General, an MEC of a province or a cabinet minister, among others. The law also now firmly allows for a general disclosure to be made to the media or to a non-governmental organisation (NGO) or a Chapter 9 institution, such as Corruption Watch, PPLAAF, the Human Rights Commission or the Gender Commission.

Thakur says the PDA is more of a labour law; its intention is to protect whistleblowers from ‘occupational detriment’. It’s not there to protect people from other forms of harm.

‘PDA is really an employment, labour law Act. There’s a lot of things that an employer can do to make your life hell. I think this Act tries to go quite far in listing them, it’s got ten sub-headings in the definition. Things like being refused a promotion, being refused a reference or being provided with an adverse reference. Being denied appointment to employment professional offers. Civil claims, so you can’t be sued for confidentiality if you’ve made a protected disclosure, and it even goes as far as to say if you’re threatened with any of the actions. It’s quite an extensive provision there,’ Thakur explains.

Tilley says that while some of the 2017 amendments were valuable, others were not. ‘The major thing was a requirement that you have a whistleblowing policy. I think the expansion of the definition of who can blow the whistle was really helpful, so I think that was a good move. The expansion of the number of the agencies that you can report to was very important. People never got the idea that you cannot just report to everywhere, to everybody, they’ve never understood that.’

Included in the amendments is a clause that could see employees fined or prosecuted if they disclose information they know is false or if they ought reasonably to have known the information was wrong. ‘We were very opposed to that,’ Tilley says, ‘the idea that if you blew the whistle falsely that you could then be subject to a criminal sanction. We were deeply unhappy about that. But then, from there, I just couldn’t help feeling that it was tinkering around the edges. Yes, so if you’re an independent contractor you can attract the protection of the Act, but if you’re being gunned down in your driveway, it’s like wow, guys, I think we’re on the wrong track in terms of what will actually work here.’

With higher stakes and the value of the fraud ballooning, the position of whistleblowers has become increasingly precarious in South Africa. The exposure of corruption, malfeasance, fraud and wrongdoing would not be possible were it not for tip-offs from insiders who choose to stick their necks out and make disclosures. It is difficult to measure or attach a monetary value to these whistleblowers’ contributions, such as with the $62 billion recovered in the US through the FCA.

While they may achieve their desired or intended goals, whistleblowers are not personally appreciated or applauded. They are not celebrated or cast as heroic characters. Instead, they are largely treated as insubordinate, pariahs or troublemakers, wearing the scarlet letter W and unable to find continued employment.

It is primarily for this reason that I’ve chosen to shine a light on the plight of whistleblowers in South Africa, in the hope of reminding the country of how we treat our whistleblowers and to advocate for a change in legislation, organisational support and social attitude in order to embolden more potential whistleblowers to have the courage to step forward.

The individuals interviewed and profiled for this book are an entirely subjective and by no means exhaustive collection of whistleblowers in the country. There were no definitive criteria for inclusion. I have attempted to curate a cross-section of narratives and examples from the public and private sector, from the state capture era to long before, when the arms deal and e-tolls were fully in our collective consciousness. I’ve also tried to reflect those whose outcomes differ to give a fair and balanced impression of the implications, risks and rewards.

Many of the stories in these pages are high profile, having already enjoyed media attention. Some less so. But for each of the stories I’ve included, there has been some compelling aspect that has captured my attention. This is not to say that these are ‘the best’ of the lot; indeed, some are problematic and flawed characters who might not even be considered whistleblowers by detractors. There are many more people whose stories I could have told, but unfortunately constraints of space and time have prevented this.

There’s Justice Department employee Mike Tshishonga, who out of desperation went to the media to expose corruption and nepotism in the Master’s Office. Despite making disclosures internally, there was no adequate action taken. Tshishonga was suspended from his job and forced to fight it out with government in the labour court, eventually reaching a settlement. Both Tshishonga and his civil servant wife experienced enormous personal hardship as a result.

Then there’s 60-something grandmother Cynthia Stimpel, who was the group treasurer at South African Airways, who questioned procedures when a decision was made to appoint BNP Capital to provide financial advisory services at an inflated cost to the troubled airline. She chose to risk her job by speaking out against a highly irregular financial deal within the national carrier. Stimpel sent a whistleblowing message to National Treasury but when that didn’t work, she contacted OUTA, which approached the media and succeeded in getting an interdict to prevent SAA from sealing the deal, saving the airline over R250 million.

Or perhaps I could have included those who were profiled in a Corruption Watch booklet but have received very little other media attention. These include teachers from White City in Soweto, who reported on alleged fraud and corruption by a principal at their school. Chris Setusha, a teacher at Mmutle High School in Hammanskraal, anonymously reported allegations of abuse of power by his principal in a theft and burglary case involving two youngsters. The principal had allegedly coaxed the two to break into the school and steal computers and bicycles; when they were arrested, they told the police this in an affidavit. Setusha approached Corruption Watch with the information to help show his community that ordinary people speaking out is an important part of fighting corruption.

Or Zamuxolo Moutloali who, in 2012, as a Grade 11 learner, took the Eastern Cape and National Education Department to court to answer for poor governance and appalling conditions at the Moshesh Senior Secondary School. Moutloali was victimised by teachers at the school after Equal Education stepped in to try and help. He remained undeterred and continued to fight for education and accountability.

There are also those individuals profiled in the Open Democracy Advice Centre’s ‘Heroes Under Fire’ report: Bloem Water employee Xola Banisi, who was gunned down in September 2014 after approaching the Hawks and the Public Protector about tender corruption; Dr Paul Theron, an employee of the Department of Health delivering health-care services at Pollsmoor Prison, who exposed the poor state of health care within the facility in 2007; Takalani Murathi, a senior manager at MERSETA, who raised concerns about irregularities in their tender process and financial irregularities concerning the CEO of SETA; and Roberta Nation, who worked for the State Security Agency’s medical aid scheme, who was victimised after reporting fraudulent activities.

There are devoted, principled individuals who are not technically whistleblowers, but rather simply did their jobs properly and refused to allow themselves to become complicit in the commission of a crime. For example, PRASA’s former CFO Yvonne Page, who opposed the parastatal’s plans to deposit R1 billion with VBS Bank and went against the instructions of her CEO to make the payment. She subsequently informed Treasury and the situ­ation became public – it was written about in ‘The Great Bank Heist’ report into VBS corruption. So, too, is the story of Mariette Venter, the acting CFO of the Capricorn district municipality, who also stood up to immense pressure to block the deposit of R60 million of taxpayers’ money into VBS. The defiance and resilience of both these women, who defended citizens against the onslaught on public funds by the greedy, deserves to be acknowledged.

Then there are those who remain nameless and faceless, who chose to stay anonymous and not expose their involvement. The contribution of such whistleblowers as sources to journalists and investigators is enormous and we owe them a great debt. Much of the work investigative journalists do would not be possible were it not for those who felt obligated to reach out with tip-offs and information from the inside.

My focus in this book has been on the human narrative, on the personal dilemmas, the internal conundrums, the to-ing and