In the wake of the death of Babita Deokaran and the flight of Athol Williams (and others) Accountability Now has written to the President via an email on 17 November 2021, calling for urgent remedial legislation to address the plight of SA’s serious corruption whistle-blowers. The presidency has formally acknowledged receipt of the correspondence and a substantive response is now awaited.

The letter follows:

The Honourable President of the Republic of South Africa,

President Cyril Ramaphosa

Dear Mr President

RE: The Protection of Whistle-Blowers in South African law.

Babita Deokaran, a faithful civil servant who blew the whistle on covidpreneurism, is dead; murdered in her own driveway.

Athol Williams, who identified 39 allegedly corrupt individuals in his testimony before the State Capture Commission (SCC), has fled the country in fear of his life.

Many whistle-blowers live in fear of their lives, some have left the country, most have lost employment and live in reduced circumstances.  On any view, it is a stain on our society that whistle-blowers, who act not for personal benefit but as a civic duty, should be so prejudiced.

The legal framework for the protection of whistle-blowers is currently insufficiently broad as well as porous and inadequate. Neither the Witness Protection Act nor the Protected Disclosures Act are structurally and operationally fit for the purpose of protecting whistle-blowers, especially those who are not yet identified as witnesses in pending criminal proceedings. Far too many of the corrupt continue to enjoy impunity because far too few of them are currently prosecuted. Some observers interpret the eight days of disorder in July as evidence of the corrupt seeking to extend their impunity.

There is already draft legislation before you and before the Constitutional Review Committee of the National Assembly, which has been prepared (and presented on 23 August 2021) with a view to assisting and accelerating the reform of the criminal justice administration so as, inter alia, to better protect the whistle-blowers of SA. The drafts are explained here: https://accountabilitynow.org.za/memorandum-on-a-constitutional-amendment-and-enabling-legislation-for-anti-corruption-machinery-of-state-in-sa/.

We ask that the remedial legislation urgently be considered by cabinet, debated by parliament and made law after a suitable public participation process in which the ideas of various organisations that have taken the lot of whistle-blowers to heart can be ventilated. GIBS, for example, has produced what it calls a “white paper” on the topic: https://www.gibs.co.za/news-events/news/Pages/CFBE-%20Whistleblowing%20ONLINE.pdf.

We ask only that your government and parliament attend to their respective constitutional obligations diligently and without delay in the manner contemplated in section 238 of the Constitution. We are perturbed that we have had no response to our August 2021 communications.

Please acknowledge safe receipt of this communication.

Yours in accountability

Paul Hoffman SC

Director

Accountability Now

In his correspondence, Accountability Now director Paul Hoffman SC, highlights the long delays between the blowing of whistles and the arraigning of the corrupt in criminal trials, as the underlying problem. Without deep reform of the criminal justice administration to capacitate it to prevent, combat, investigate and prosecute serious corruption both effectively and efficiently, the impunity of the corrupt will continue, to the detriment of peace, progress and a prosperous future for all.

The lack of action, once again highlights the need for a dedicated corruption fighting institution. Accountability Now, has long advocated the establishment of an Integrity Commission based on Chapter Nine of our Constitution, which would be a specialised entity dedicated to dealing with serious corruption to the exclusion of all else.

For a Chapter Nine Integrity Commission (Ch9IC) to be effective, Accountability Now has emphasised that five criteria need to be applied to the structure – specialisation, training, independence, resourcing, and security – these have become known as the STIRS criteria.

Personnel would need specialised training, the independence of the institution on a structural and on an operational level would have to be secured, it would need to be well resourced, and it would have to enjoy secure tenure of office. Freedom from executive influence and interference would be required in order to counter the corrupt without fear, favour, or prejudice.

A Ch9IC would have the power and the resources to process investigations and prosecutions more swiftly, and it would be able to focus on supporting and protecting whistle-blowers more effectively.