The law does not protect whistleblowers adequately, as is illustrated by one man’s story – now told, out of necessity, by his surviving brother.
Bernard Banisi is a tall dignified man, with high cheekbones, and eyes that give little away. He tells stories properly, with their own rhythm and pace. His story of his brother’s murder at the hand of unknown assassins is no exception.
He starts the story of his brother by telling us about his family.
“We have a poor and illiterate background,” he begins.
In 1973 my uncle, who was at Robben Island, was released after 15 years, and banned to Mdantsane. When we went to see him, I recognised him because he looked like my mother.
My uncle was a student of Govan. In those days, you did what you were told. When the ANC was banned, my uncle was told by Oom Gov: you go and seek a job [at that company], there should be a trade union there. I have no words to describe how good an organiser was he.
My uncle told us that on the Island, his fellow prisoners found themselves disorganised. They decided to organise themselves. When he was deported to Mdantsane, his comrades decided to use a trick learned from the Island. They learned that they must control the island, and not let the island control them.
Then Bernard speaks about his brother, Xola.
My brother Xola was in and out of jobs. His wife left him, and when he found a job and they found he was from the family, then they chased him away. But then he fell in love with the boss at Bloem Water. She organised him a job. She put him where he would deal with tenders.
But all did not go smoothly.
Xola came to consult me, and said, “I am so uncomfortable with these fictitious invoices.”
He said to me, “What should I do?” I said to him, “I don’t know what to tell you”. I said to him, “The old man, our uncle, said we are living in a world where you have to choose. You tell the truth for your own comfort or you lie for your own benefit. You then choose.”
He chose not to lie. That was his problem. He said – sisi, I am doing procuring, I am not going to sign for anything not properly procured. Then another guy from Joburg came and took a senior post, above Xola. The girlfriend was the one who organised this. This was the new boyfriend – he was put in supply chain management, and my nephew was moved to HR.
His relationship with her broke down, and she spread a rumour [that] she was going to deal with him. I told him to report it to the police. Then there were threatening calls. I told him to diarise these things. He reported to the police on the 11 September.
Then I got a phone call. It was after 1am. It was from my younger uncle. He said:
Xola is late. (1)
Then he ran out of airtime, and I had no airtime. We couldn’t talk anymore.
Xola’s body was found next to his car outside his girlfriend’s house, on Friday, close to midnight. He had been shot three times. Robbery did not appear to be the motive, as none of Xola’s possessions seemed to have been removed and his car keys and cellphone were found next to him.
There were bullet holes in the driver’s side window, giving the impression that the assailant had fired the first shots at the car. It appeared that Xola was shot dead while trying to escape. Samwu’s Free State secretary, Dumisane Magagula, said the murder came as a huge blow, as Xola was central to the union’s efforts to investigate allegations of corruption at Bloem Water, which provides water services to the southern and central areas of the Free State.
No arrests have to date been made in relation to Xola’s murder.
What does this tell us about the law that protects whistleblowers? Well, obviously, it doesn’t protect them successfully. It’s a law that is designed to protect people in the workplace, people who are harassed or victimised by their employers. It’s designed to protect you when you are disciplined for ‘bringing the organisation into disrepute’ when you raise concerns about the Auditor General’s report about the municipality you work for. It’s designed to protect you when your employer tries to discipline you for raising concerns about the health conditions of juvenile prisoners, to the Portfolio Committee concerned. Look, none of these put the employer in a good light. But, here’s the thing – nobody died.
What possible policy response is there to assassination? What sub paragraph of a clause in a new law is going to take men with guns out of the equation? Is the response more guns? I asked that of a group of whistleblowers, and they said no. Not because they don’t like guns – but more because they regard private security guards to be easily bribed, and unreliable. What about witness protection?
That’s not generally an option. In order to get such protection, you have to be able to lay a criminal charge, and have the threat level against you assessed to be sufficiently serious to enter the programme. And when you do, you disappear. No contact with family, or friends. No phoning home, no praying with your prayer group, no consulting your doctor. No money for school fees, or medical aid. No work. Nothing.
For most people to do that, they have to be convinced of an imminent threat, and they have to be able to persuade the authorities of that threat. That’s not a hurdle most whistleblowers can jump. By the time they realise the threat is real, it’s too late.
With the destabilised anti-corruption capacity in South Africa, we have very few credible places people can go for help they trust when they want to raise concerns. Whistleblowers are peculiar creatures, though – they continue to speak out, even when it is clearly not in their personal best interests. Something holds them to a higher standard – their faith, their education, their belief that the public interest must be served and that good will triumph. Maybe that’s why Xola Banisi insisted on speaking out, and why his brother must now tell his story for him. DM
(1) This is another way of saying someone has died.
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