A nation of victimised whistleblowers

Sipho Ngcobo argues SA does not offer protection for whistleblowers.

JOHANNESBURG – Has it ever crossed your mind why it is that whistleblowers are the ones who end up in court seeking protection?

As most of us probably know, whistleblowers are those principled men and women who are brave enough to expose corrupt and unlawful practices, particularly committed at the highest levels of their organisations.

Two prominent Labour Court cases involving whistleblowers within four days of each in the past week are harsh reminders that there is very little or no protection for these brave individuals despite the existence of the Protected Disclosures Act (PDA).

On Monday the Labour Court postponed the case between Vodacom and Mandla Mdluli a former employee and whistleblower because of some legal technicalities.

Vodacom alleges that Mdluli, a former financial manager, developed a vendetta against the company after he was dismissed, prompting the board to commission KPMG to conduct a forensic audit.

The KPMG report investigated 18 allegations including claims that former CE Alan Knott-Craig had approved a R9m budget-overspend to support a company run by his son, while an agency owned by his niece and nephew was awarded a lucrative contract without going through a competitive tender process.

Apparently the report cleared Knott-Craig of corruption and wrong doing but highlighted “poor judgement” – whatever that is.

So, Mdluli is all alone now, trying to fight a monstrosity like Vodacom. He is also jobless but is facing massive legal bills all by himself.

I don’t know what happened at Vodacom. But generally the whistleblower becomes the prime target of victimisation by those accused of unlawful or irregular conduct. And the real reason behind is vengeance, retaliation and retribution sparked and ignited by whistle-blowing activities. This is the very mischief which the legislature sought to prevent in promulgating the PDA.

But is the PDA protective of whistleblowers? The answer is no. It has not protected whistleblowers.

A similar case was heard by the Labour Court in Braamfontein, Johannesburg last Friday in the matter between Dudu Bongiwe Tshabalala, the daughter of retiring Judge President of KwaZulu-Natal, Justice Vuka Tshabalala and L’OREAL South Africa.

The issue at hand was the unfair, unlawful and unconstitutional suspension of Ms Tshabalala following a huge fall-out with her employers.

According to court papers, the hearing formed part of a chain of occupational detriments aimed at getting rid of Tshabalala in retaliation to protected disclosure in terms of which she exposed “an admitted irregularity and possible fraud about to be perpetrated by her employer”.

The judge ordered the two parties to settle the matter between themselves, which culminated in both of them agreeing that Tshabalala’s suspension was both procedurally and substantively unfair.

This is how it all started.

In November 2006, Ms Tshabalala was promoted to the position of general manager in charge of Diversity for L’Oreal South Africa, which elevated her to the company’s executive committee (Exco).

This meant she was going to report directly to the managing director (SA).

This also entailed a comprehensive induction in both Paris and the United States and becoming part of the company’s diversity network as a representative of Africa with her peers from the United States and Europe.

Her job description included managing diversity for the whole company, working directly with peers on the main topics covered by the charter (management, skills development, procurement, social responsibility …).

These also included drawing up an action plan for the way L’Oreal South Africa was going to deliver its BEE compliance, as well as its roll-out.

Tshabalala’s responsibilities also included monitoring all Employment Equity Actions as required by the Department of Labour.

She therefore, was also the company’s spokesperson (internally and externally) on diversity issues. She was also in charge of government liaison and special interest groups like the Black Management Forum (BMF).

As part of her job, Tshabalala was to become an active member of the L’Oreal group diversity council and to share benchmarks, especially with Europe and the United States.

But listen to this.

When she conducted a diagnosis of the employment equity (ee) report, which the company was to submit to the ministry of labour as required by law, she found irregularities that, according to court papers, were fraudulent.

In short, the numbers of black executives were dramatically inflated, which constituted a misrepresentation. In other words, some white executives were entered in the EE report as blacks.

She ordered an immediate review and an urgent investigation. That’s when all her troubles started, which ultimately saw her being marched out of the company premises by security. She had been suspended.

Now, where are we?

Fact is, the purpose of the PDA (Protected Disclosures Act) is to make provisions for procedures in terms of which employees in both the private and the public sector may disclose unlawful or irregular conduct by their employers or by other employees and to provide for the protection of employees who make such disclosures.

What was Tshabalala’s sin?

She made a protected disclosure to her employer that the company was just about to submit fraudulent EE information to government.

And boy is she paying the price now!

The Act can’t even come to her rescue. So, whistleblowers are dead and buried.

What do we do? Where will relief for these people come from?

Are perpetrators of corrupt practices going to continue getting away with murder?

We need a solution.

*Sipho Ngcobo is former deputy editor of Business Report and ex-managing editor of Enterprise Magazine. He was one of the original team members of Business Day when the paper was launched in May 1985. He was a correspondent at international news agency Dow Jones where he reported on markets and companies in the early 1990s. He has also written for such publications as the Sunday Times, the World Paper in Boston and was employed by the New York Times Group in the US between 1989 an 1991.

Write to Sipho Ngcobo: siphon@moneyweb.co.za

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