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Full Transcript of Justice Dikgang Moseneke's Keynote Address at the Inaugural Whistleblowers Awards



WHISTLEBLOWERS AWARDS GALA DINNER MELROSE ARCH

THURSDAY 26 OCTPBER 2023 19:30 (45Mins)


Speaking Notes, retired Deputy Chief Justice Dikgang Moseneke


A good evening to you all distinguished ladies and gentlemen.


It is a singular privilege to be invited to this Whistleblowers Awards Gala Dinner. I am a guest of Public Interest SA who have carved a respectable niche in the collective quest to fashion the country and society we have earned and deserve. Public Interest SA fulfils a leading role in advocacy for ethics, social justice, and transparency in the public space. As I understand their mission, they seek to promote ethical citizenship; to address pressing societal issues and contribute to the betterment of our nation.


Let me at the outset thank and acknowledge the Founder and Chairperson of Public interest SA, Tebogo Khaas who founded Public Interest SA in 2008 and remained it visionary leader together with other executives for 15 years that followed. Let me acknowledge and congratulate recipients of awards this evening.


The gracious invitation of Tebogo Khaas was remarkably relentless and left me with no option but to be here tonight. I am nonetheless honoured and grateful that I accepted. I salute all his colleagues at Public Interest SA who must have worked tirelessly to make this glittering gala dinner possible. In a moment, I will talk a little more precisely about the regulatory regime on whistleblowing. But at the outset I should confess to the lurking irony conjured up by whistleblowing, on the one end, and gala dinner awards, on the other.


The inherent tension between whistleblowing and awards at a gala dinner simply does not escape me. Whistleblowing in our country and indeed, elsewhere in the world is a hushed-up business. It is gutsy, risky, daunting, and potentially a career or sometimes life- threatening enterprise.

Whistleblowing should be what every good citizen does when she runs into impropriety or criminality at the workplace and other specified sites. And yet many inhabitants do not. Telling on crime or wrongdoing in government or in a corporate setting is not the stuff strutted openly and with aplomb for everyone to see, like the arts, literature, fashion, sports and other public pursuits or performances that might draw open applause and awards at gala a dinner.


So, Mr Khaas, when your invitation reached me, I wondered long and hard, about how Public Interest SA has identified the whistle- blowers and how you have garnered their laudable conduct to write up the citations of the honoured whistle-blowers. I wondered how you have managed to persuade your nominees, who are still alive, to accept the awards in public.


That surely could be a potential double jeopardy. It could be and an invitation to dual bravery. I have no doubt that you have worked through my little puzzle, and you have overcome my conundrum of sorts.


Having cleared that little huddle, allow me to extend may most respectful and warm congratulations to recipients of tonight’s whistle-blowers’ awards. The recipients are the standard bearers of ethical citizenship, public transparency, and accountability. You have set a high bar of citizen probity.


On an occasion such as this I cannot resist repeating a mantra, I have written a few years ago. It speaks to why we honour others and grant them public acclaim. It is for both altruistic and selfish reasons. We acclaim them for their sake and our sake.


Every people, every nation, from time to time, yields from amongst its very own a truly courageous, selfless, and visionary patriot who stands tall and apart from the rest. The rest of us look on and would know that theirs are virtuous deeds worthy of celebration. We want to remember their achievements or sacrifice for many reasons. First, they are beacons and signposts of public good. Their lives light up the collective path we must travel. They locate us within our past and shared experiences.


There is another forward-looking reason for celebrating brave and ethical lives. From the lived moments of our heroes, we hope to learn how to prosecute our own lives. We call to memory their visionary and selfless action to gird our loins for the challenging task of creating; of re-imagining our world. We hope to extract from their brave deeds, those abiding values of how best to accomplish present day challenges. Of course, we also remember ethical and brave citizens for no more than to thank them for the sacrifices they have endured to make our lives bearable.


What is whistleblowing? The ordinary meaning of whistleblowing is well-known and unobscured. It is the act of calling out or reporting someone’s misdeeds. That comes naturally to young children. All parents know how often siblings tell on each other. “Mummy Dikgang has been helping himself to the cookie jar.” In my childhood there would be consequences. That would draw a severe admonishment, if not spanking.

When I was called to the bar as a young, pupil or candidate advocate, one rule of ethics sprung out. An advocate was obliged to report to the Bar Council the misdeeds of any other advocate and a failure to do so knowingly was punishable as a breach of the Bar ethical code. Each advocate was meant to be his or her sister or brother’s keeper without fail. In this way, our advocacy profession would remain ethical. There is a larger benefit to the rest of society. Our judicial system would in time be swelled by ethical and honourable judges and the democratic state and its people would be the better for it.


Our present concern though is what the law says whistleblowing is? Whistleblowing is a term that is used by the law enforcement agencies when a person passes on relevant and reliable information concerning impropriety such as fraud or corruption to another person or organisation they trust. Any person can be a whistle- blower when they suspect, witness or observe behaviour or actions that they believe to be illegal or in contravention of monetary management laws of the country and report these suspicions to the relevant law enforcement agencies.


Whistleblowing in our country is regulated by a grid of pieces of legislation. Our Constitution is the foremost source of the duty of the state to make laws and take other reasonable steps to protect whistle-blowers. Foremost, would be the constitutional right to equal protection and benefit of the law; the guarantee of freedom of expression and to receive or impart information and the right to a fair labour practice.


The Protected Disclosures Act, 2000 (PDA) also known as the Whistleblowing Act came into force in February 2001 and later amended in 2017. The principal provisions of this legislation. define the relevant concepts, provide for avenues of reporting by whistle- blowers and for their protection. The law applies to people in both the public and private sector but excludes volunteers and independent contractors.


The protection, that is aimed at employees, arises if the disclosure is made and is a ‘protected disclosure.’ The disclosure is ‘protected’ if it contains information about ‘impropriety’ and is made to the right person. Legislation directs that disclosure may be made to a legal advisor with the purpose of obtaining legal advice; or to one's employer or to the public protector or the Auditor General or to the Minister or Member of the Executive Council of the Province or to any other person as long as certain conditions are met, including that the disclosure is made in good faith and could not be made to one's employer.


The protection provided by the whistle-blowers’ legislation is directed at preventing conduct causing occupational detriment to the whistle-blower. The targeted conduct includes dismissal, suspension, harassment, and intimidation. Should a whistle-blower be subjected to occupational detriment, the remedies that they have at their disposal is to approach any court that has jurisdiction to grant the relief asked for.


The PDA provides for financial compensation. A whistle-blower may request and obtain a transfer on terms and conditions no less favourable than the conditions that applied immediately before the transfer.


Other legislation, such as the Labour Relations Act, The Companies Act and the Protection Against Harassment Act, protects whistle- blowers in specified ways.


I do not mean to ruin your gala dinner by an endless tutorial on whistleblowing legislation. Let me end this part of my address by drawing attention to a new and additional whistleblowing legislation in the offing.


On the 29th of June 2023, our Department of Justice and Constitutional Development has proposed reforms to whistleblowing legislation. The reforms are said to be prompted by the findings of the Commission of Inquiry into Allegations of State Capture on corruption and fraud in the public sector issued by Chief justice Zondo in October 2022. The proposed reforms are said to seek to tackle corruption and enhance the protection of witnesses and whistle-blowers and “to look out for any gaps or shortcoming in the current system.”


Some of the reforms are meant to extend the scope of “protected disclosure” to wider than at the workplace, improving witness protection and providing for a policing role of the Human Rights Commission. There is no lack of commentary on many law and other sites on what the reforms might mean or do for our country.


The critical issue though is whether we need more legislation. Do we? Several academic reviews of our current whistleblowing legislation suggest that our laws, but for a few gaps, are as good as any across the globe. The problem we have does not seem to be the regulatory regime but rather its transparent, dedicated, and faithful implementation. We are by now well-known for passing world class laws and simply allowing them to fall by the wayside without any effective implementation.


We have had whistleblowing legislation for 23 years since 2000 when Protected Disclosures Act was passed. Are we, as country, not due for a detailed account by the ministry of justice, law enforcement agencies and other entities of the executive arm of state on what has happened in the terrain of corruption-fighting, whistleblowing, and witness protection since the inception of the legislation to the present and before we adopt more laws in the area. I do not mean generic and predictable, declaration to fight corruption and to prosecute or hold to account perpetrators.

How could it ever be, that despite these elaborate and multiple laws we have in place to combat corruption and other improprieties, there is no visible stemming of the tide of misappropriation, irregular expenditure, and corruption. Are we not entitled to a regular, and adequate scheme of accountability by the state and indeed by the private sector to us, the people, or citizens where there has been whistle blowing or credible report of corruption?


Surely every site of public power or of private sector power impacting on the public, ought to report in an open and transparent manner the whistleblowing and other reports of impropriety and corruption received, the actions which have been taken in each incident and whether it has led to criminal or other accountability.


How could it ever be that as country and people we wake up to press and other reports of impropriety, maladministration and plain theft and pervasive misappropriation. We are overwhelmed by the sheer volume of reports of financial and related impropriety. Within days if not weeks we run into collective amnesia over the report. Those who hold public office surely owe us a duty of a periodic reporting by every implicated public or private sector entity to respond, to report on the impropriety and consequence management that has been adopted and applied. In this digital world a responsive state or public corporation could do that if they had the will to be held accountable.


We read and hear about misappropriation at NSFAS, money meant to fund educational needs for the needy, at SASSA, money for the sustenance of the most vulnerable amongst us; at the Master’s Office where the Guardians Fund and other monies for vulnerable heirs and other beneficiaries are held. Public hospitals budgets meant to look after health care of vulnerable amongst us do not seem to be beyond the reach impropriety and plain theft.


What about claims by lawyers against the MVA Fund and the department of health. What about the reports of endemic leakages, misappropriation and qualified accounts reported by the Auditor General at local government levels fiscal year after another. Over time, state owned enterprises have become sore sights instead of engines for economic growth and places of tutelage for our young professionals. The list seems endless. And yet there appears to be no one held to account whatsoever. We, the people are entitled to see and hear whether appropriate action has been taken, underpinned by figures and facts. Does anybody care, count, measure, and report to our citizenry or to anyone above them the incidents of wrongdoing in the public and private sector and what had been done to hold the perpetrators to account. Only then may we assess whether whistleblowing measures have led to real and adequate fight against misgovernance, corruption or theft. What is the point of blowing one’s whistle into the vast darkness?


My esteemed Colleague Chief Justice Zondo released findings of the Commission of Inquiry into Allegations of State Capture on corruption and fraud in the public sector issued in October 2022. A year later are we, as citizens, not entitled to specific steps the government has planned or taken to implement the outcome of that ambitious and costly inquiry and its findings on impropriety? Or is the report likely to gather dust and nothing more? Our apathy and failure to demand and assert openness and accountability is remarkable. One must, in that despondency, acknowledge and applaud the wonderful work of investigative journalism in our country. We must doff our hands for their blazon bravery and patriotic citizenship.

The last word, I must spare for Ms Babita Deokaran, and indeed others who lost their lives the same way. May she rest easy, as the young of our land say. I say may she find eternal rest. She is a genuine hero. It hurts deeply that it had to come to her paying the highest price when it was entirely unnecessary except for the criminals implicated. I am in deep awe of her ethical rectitude.


Surely, her tragic demise is a call to action on all of us. In her memory most, if not all of us should whistle blow loud and clear and often until the predators in the public and private sectors are defeated.


Most of us want simple if not mundane things. We yearn for personal safety and of our families and loved ones. We hope to be shielded from crime including crime against our mother, sisters, daughters, and all women threatened by gender-based violence. We ask for space to bring up our children in peace and safety and to afford them the best education possible. We hope for all of us to access healthcare, decent homes, food, and clean water.


We remain hopeful to end poverty and inequality and make space for ample and decent jobs and equitable economic opportunities.


Here is the point, that Babita Deokaran understood so well, none of this would be possible within the endemic corruption of a predatory and unaccountable government and private sector held ransom by implicated rogue officials.


The project to establish a people-centric, ethical, accountable, and socially just, competent, and democratic state, for which so many paid so dearly, must never fail.


Thanks for listening and good night.


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