Opinionista Gabriella Razzano 1 July 2015

Not going down: Misguided state attempts to silence a whistleblower

Whistleblowers in this country don’t have it easy, as ODAC's research has repeatedly shown. But sometimes the sheer lengths actors go to perpetuate this unfairness verges on the bizarre and merit a public shaming.

The Open Democracy Advice Centre is working with such a case now – that of our client, Mathloko Motingoe. In 2013 Motingoe, a legal advisor in the Northern Cape Department of Infrastructure and Public Works, blew the whistle on an ‘irregular’ tender awarded for the repair of Theekloof Pass in the Northern Cape. Harassment seems to have been his only reward.

Motingoe was suspended by the MEC in November 2013. He challenged this suspension as an unfair labour practice in the bargaining council. This was the subject of the arbitration award, served on 8 December 2013. The award clearly orders the employer to uplift the suspension immediately. Running concurrently with the arbitration process was the Labour Court process in which the client challenged both the suspension and the disciplinary enquiry he had been subjected to as occupational detriments. The judgment was delivered on 11 December 2014. One of the orders is the immediate upliftment of the suspension. And the Court noted:

“Whistleblowers, when they comply with the PDA, are an integral element of the fight against corruption…People, like the applicant [Mr Motingoe] who have the courage to stand by their convictions and speak out [are] not only entitled to protection, they ought to be commended”.

Pretty damning: Two orders, same relief, and some admonishment. At this point, we would presume the judicial rap on the knuckles might have alerted Public Works to the injustice it was meting out…Nope, apparently not. Instead, when Mr Motingoe attempted to return to work, he was issued with a ‘new’ suspension order, on exactly the same terms.

It is a scary day indeed when state actors blatantly ignore an order of court. We believed the only correct response was to assist Mr Motingoe in bringing an urgent contempt of court order against the HOD and MEC of Public Works, Northern Cape. The judge agreed with our ire: Honourable Justice Rabkin-Naicker ordered that the Respondents appear before her on 7 August 2015 to explain why the contempt order should not be granted. If granted, it will result in imprisonment or a fine.

Justice is tricky. We turn to the law to help us decide fairness, because fairness seems so instinctive, except when not in our ‘favour’. Tiffany Madison was well quoted when she said: “When the Rule of Law disappears, we are ruled by the whims of men.” Government should be the champions of law, yet the failure of the state to comply is verging on systemic, as noted in Pierre De Vos’ recent writing on the Bashir matter.

The situation, as De Vos also notes, seems exacerbated by some questionable decisions taken on ‘legal advice’ in attempts to thwart justice. An immediate response to the contempt order decision was to merely keep utilising misguided delay tactics. In January 2015 Public Works sought for leave to appeal against the Labour Court judgment, which was not granted. Yet the respondents sent Mr Motingoe a Notice of Motion claiming to be an application for leave to appeal to the Supreme Court of Appeal, as their immediate response to Justice Rabkin-Naicker’s issuing. Not only did it not have a supporting affidavit, it also failed to notice (see what I did there?) that they had no right of leave to appeal.

This is not the first, and will not be the last, time that government is admonished for abusing the seemingly inexhaustible state coffers for bullying litigation. But every time it happens we should be appalled. We would support the completion of audits to identify the sums of taxpayer money grossly wasted on irresponsible litigation to avoid, quite simply, fulfilling fundamental constitutional duties.

Whistleblowers are particularly vulnerable to this form of harassment. Even the pitiful protections currently available to whistleblowers require implementation to be effective. Many whistleblowers struggle as lone voices against a cacophony of injustice that simply drowns them out. One solution is of course to try and ensure that their cases do not go so far down the road that litigation is necessary – this is part of the reason ODAC is developing a Code of Good Practice on Whistleblowing to empower employers in effectively dealing with cases internally. But regardless, the law needs to be respected by all.

We will continue to support Mr Motingoe in his pursuit of justice. We would simply ask Public Works to remember that the law is meant to be on his side, even if the purse is on theirs. DM

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