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Mike Tshishonga on the court judgement

The man who took the minister of justice and the director general of the department of justice and constitutional development to court.

MONEYWEB: Mike Tshishonga is a former deputy director-general at the Department of Justice – in fact he’s served the department for nearly 30 years.


MIKE TSHISHONGA: Yes, almost 30 years. Since 1978.


MONEYWEB: You’ve been on this programme a few times, talking about your whistle-blowing activities. We need to, before we go to this extraordinary judgment that was released by Judge Pillay on the 26th December last year, on Boxing Day, it’s our first programme back, and an opportunity to talk with you – and it was all over the front page of the Sunday Times this weekend as well. You decided to take Penuell Maduna, who was the former minister of justice, and is a director incidentally on the boards of Sasol, Growthpoint, an Investec-related company, Altron and Eland Platinum, as well as being a partner at supposedly a reputable legal firm called Bowman Gilfillan. You decided to take him to the labour court, him and the head of the Scorpions. Now there certainly isn’t anything small about the way you are aiming. Why did you do this?


MIKE TSHISHONGA: I did this because I am passionate about good governance and the rule of law. And I realised that that was being violated, especially because this being done within the department which I was a head of. So my integrity was infringed because, if we discriminate against liquidators, for instance, and we favour one particular liquidator, then you have to answer to the others who are not being favoured. So I couldn’t live with my conscience when I suspected that the minister seemed to be favouring one of the liquidators.


MONEYWEB: Well, it’s just more than just seems to be “favouring”. If you go through the court judgement, it’s chapter and verse how he browbeat you, he browbeat other people, took someone from your department, put them into a temporary position in Pietermaritzburg so that his friend, Enver Motala, could participate in the juiciest liquidation one has seen in this country for many a year – RAG, Retail Apparel Group. It’s all here, it’s in black and white, it’s now being made a statement of fact. You’ve always maintained it. But the labour court, and Judge Pillay – she’s gone into a lot of details, 88 pages – has made it a statement of fact. And you got everything you wanted from this judgment. But I need to ask you – you asked for 12 months salary and for your legal bills to be paid. Haven’t you been through more than that through the other kind of aggravating circumstances?


MIKE TSHISHONGA: Yes, I have been through hell, actually. Firstly, you must know that whatever I was doing, I was doing this within the so-called Protected Disclosures Act. Now, the Protected Disclosure Act allows one who is suspicious of any wrongdoing, [indistinct] impropriety or crime – but a mere suspicion is enough for one to come forward, but not to malign anybody but to seek investigation in what he is alleging. But I did go to the Public Protector, the Auditor-General, the Ministry in the Presidency. Not one of these bodies or people attempted to investigate. I used the word “seem” because I acted in terms of this Act. The allegations – the Act does not need me to prove the truthfulness of what I’m saying. So that is what I did. But I had to support it by factual information, which I have, and I think that is what was elaborated [upon] by Judge Pillay.


MONEYWEB: Well, we will be publishing the court judgement on Moneyweb, so people can read it and make up their own mind. But what goes on from here? Again, getting back, you asked for 12 months pay – only 12 months pay?


MIKE TSHISHONGA: Yes. Again, it’s not only the Protected Disclosures Act, but the Labour Relations Act. If it’s unfair labour practice, the maximum which you can claim is 12 months. But if it’s an unfair dismissal, the maximum is two years.


MONEYWEB: You haven’t been dismissed?


MIKE TSHISHONGA: I was not dismissed but, you know, I was coerced in[to] coming to a settlement which we did – and that is why I only claimed unfair labour practice.


MONEYWEB: Mike, what happens from here? Clearly, you have a passion as you’ve said for the South Africa we would like to see – one which is honest, true, free of corruption. Your case is showing that there is a considerable amount of those nasty things in our society. What are you going to do from here?


MIKE TSHISHONGA: I’m definitely passionate about good governance. And also, I want to see the economy of South Africa flourishing – and not only flourishing for a few, but for the poor as well. So I think this is a good start, where now the whistle-blowers will be protected and will come forward to allege the improprieties or wrongdoings. I am going to encourage them.


MONEYWEB: We’ve got a gentleman here who used, if it was a police situation, what could be called excessive force. He was phoning you in the middle of the night, trying to push people around. This is Penuell Maduna, who then was minister of justice. He’s on the board of Sasol. Now there’s a top-five company in South Africa, listed on the New York Stock Exchange. The board of Altron, the board of Growthpoint, the board of Eland Platinum, and he serves as a partner on Bowman Gilfillan Attorneys. Yet he did not have the courtesy even to answer your allegations and a statement of fact that is now being put down in the record by the judge. That interpreting into the South African society that we have, it does appear as though something here is wrong – and what’s the next step?


MIKE TSHISHONGA: The next step I think is for the public sector and the private sector to emphasise ethics in whatever they are doing, and also openness, transparency, because the Act, I invoked the Protected Disclosures Act. At the beginning, when it was enacted, the first name was Open Democracy. Now I think that the private sector must encourage their people to come out strongly against this cancer called corruption [in] private and public companies. And at the same time I wouldn’t like to sort of lay guidelines for the companies to employ people, but I think ethics – it must be people who respect ethics and who have got integrity and who are honest and who believe in the truth, because that is how we are going to save the economy of our country. We are all interested in the strong economy, but we must work for it. The democracy needs to be supported and it must make sure – and the maturity of democracy is when there is openness, there is transparency and people can question things.


MONEYWEB: David Shapiro, I suppose the cynics in the business community are going to say, Ag, Mike Tshishonga, he’s a dreamer, he’s an idealist, he’s gone out there, yes, sure, he has won this court battle, yes of course, he’s now managed to make transparent some foul dealings that were done here, absolute corrupt dealings. And what are they going to do about it?


MIKE TSHISHONGA: But Mike’s right, because until we do something about it, we will never be a great country. You made a very pertinent statement – you said, “What does South Africa want to be?” And that’s what we want to be. And it’s going to be very interesting because, if Mike is talking about ethics, integrity, truth – and obviously the accusations are that this wasn’t happening – then those boards that you mentioned have got to look at their directors.


MONEYWEB: I would like to see them reading the judgment, and then just given us a comment on the judgment.


DAVID SHAPIRO: Yes, otherwise they certainly won’t make the list of good corporate governance, the competition that we have, because you’ve got to look at the quality of your directors.


MONEYWEB: But David, a leading legal firm – when you read the judgment and you see what was done here.


DAVID SHAPIRO: Well, it’s up to them to now answer the statements that have been made in the …


MONEYWEB: But they didn’t. Vusi Pikoli, head of the Scorpions, and Penuell Maduna, former minister of justice – they said, so what? It’s almost with impunity that they can carry on.


DAVID SHAPIRO: But you’ve got to admire Mike, because we know this has been going on for two, three years, even more than that.


MONEYWEB: 2003.


DAVID SHAPIRO: And the law moves slowly, and he had to maintain his dignity throughout this and continue to fight. Because it can wear you out. The law here can wear you out by the time you get to court.


MONEYWEB: Mike , what are you doing now?


MIKE TSHISHONGA: I have been appointed a director and chairperson of THE Diversified Property Fund Limited company.


MONEYWEB: Which does what?


MIKE TSHISHONGA: It’s a property fund. It builds shopping malls.


MONEYWEB: Well, all the very best of luck in that position, and may some of our ethical companies enlist your support. Certainly, David, what Mike’s gone through takes some doing.


DAVID SHAPIRO: Great admiration for Mike, and hopefully we will find more directors like Mike.

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