The provision of legal assistance, physical protection and a dedicated fund for whistle-blowers as well as the creation of a database of rogue public servants are among measures the government proposes to fight state capture.
THE PROVISION of legal assistance, physical protection and a dedicated fund for whistle-blowers as well as the creation of a database of rogue public servants are among measures the government proposes to fight state capture.
President Cyril Ramaphosa’s administration has been at pains to show that it is implementing the recommendations of the state capture commission headed by Chief Justice Raymond Zondo.
This follows the country’s top judge warning that a year after he delivered the commission’s final report the country “might not see a lot of implementation of the recommendations” as politicians would be on the campaign trail ahead of next year’s national and provincial elections.
On Thursday, Justice and Correctional Services Minister Ronald Lamola released the government’s 162-page discussion document on proposed reforms to the whistle-blower protection regime.
In his final report, Chief Justice Zondo had recommended that the government introduce legislation or amend existing legislation to ensure that any person disclosing information to reveal corruption, fraud or undue influence in public procurement activity be accorded protection.
He also proposed that the state identify the inspectorate of an agency as the correct channel for the making of such disclosures and authorise an agency’s litigation unit to incentivise such disclosures by entering into agreements to reward the giving of such information by way of a percentage of the proceeds recovered on the strength of such information.
According to Chief Justice Zondo’s recommendations, the government should authorise the offer of immunity from criminal or civil proceedings if there had been an honest disclosure of the information which might otherwise render the informant liable to prosecution or litigation.
The discussion document on proposed reforms to the whistle-blower protection regime recommends the creation of a fund for whistle-blowers to assist whistle-blowers who have been dismissed and face severe financial hardships in meeting their basic needs and those of their dependants.
Another proposal was for Lamola to issue a certificate to a whistle-blower recommending that Legal Aid SA consider granting legal assistance in any legal proceedings instituted against a whistle-blower arising from disclosures made.
”Legal fees for representation are one of the issues that have been pointed out as lacking for whistle-blowers who are targeted for making disclosures,” states the rationale behind this recommendation.
The government is also proposing that courts or tribunals including the Labour Court order the payment of interim legal costs by the employer or client where the employee seeks recourse through the courts to adjudicate their rights, where the prospects of success are in their favour.
This will be the case if a court or tribunal is satisfied that an employee or worker has been subjected to or will be subjected to an occupational detriment on account of a protected disclosure and will be allowed to make an appropriate order that is just and equitable.
There is also a proposal to amend the Witness Protection Act to change who witnesses and whistle-blowers are as the act does not refer to whistle-blowers, even though the definition of a witness is broad enough to cater for them being entitled to protection.
“The clarity will inspire confidence in potential whistle-blowers who require security where their lives and that of their families are under threat,” said the document.
The National Treasury is setting up a central register on dismissals and resignations of government employees who have been dismissed from work or resigned to avoid disciplinary processes as part of implementing the recommendations of the state capture report.
Acting National Treasury director-general Ismail Momoniat recently requested information from public entities listed in the Public Finance Management Act including those heavily implicated at the state capture inquiry such as Eskom, Transnet, Denel, SA Airways, the SABC, Armscor, Airports Company SA and SA Express.
Momoniat said information required for the central register should include outcomes of disciplinary hearings, criminal charges, names and ranks of employees involved, sanctions and further actions taken.
”The information currently reported in annual reports does not provide full details of those employees that have resigned prior to investigations or disciplinary processes being finalised to avoid being disciplined,” reads Momoniat’s circular dated May 31 this year.
He said the central register would provide specific information that would, among others, assist organs of state to strengthen the administrative capacity for the vetting of new and existing public service employees and enable detective and preventative mechanisms.
Presidency spokesperson Vincent Magwenya said Ramaphosa would announce details on the progress on his state capture report implementation plan when it marked a year since it was submitted in October.
