Babita Deokaran was shot dead in 2021. As the chief director of financial accounting in the Gauteng Department of Health, Deokaran was a key witness in a multimillion-rand fraud investigation linked to alleged improper Covid-19 personal protective equipment tenders. She bravely blew the whistle on those who had allegedly fraudulently manipulated tenders for their own benefit. It should not have cost her life.
As the Global Initiative on Transnational Organized Crime’s special report on Deokaran’s murder said, it shone a spotlight on whistleblowers and the need for far greater protection:
“Deokaran’s assassination has brought to the fore the intense dangers whistle-blowers can face. Whistle-blowers are pivotal to uphold the rule of law and contribute to public accountability. While international instruments such as the United Nations Convention against Corruption and the United Nations Convention against Transnational Organized Crime impose obligations on witness and whistleblower protection, states often fail to comply.
“If there is no state entity or agency capable of providing protection to those who cooperate with law enforcement or stand before courts supporting the prosecution’s case, it is unlikely that they will risk their lives to speak out against corruption or organized crime, which are likely to go unreported or uninvestigated, contributing to a climate of impunity and lack of criminal justice.”
Since Deokaran’s murder there have been increased calls for greater protection for whistle-blowers. She had not received any protection at the time of her murder.
Deokaran’s murder shows that there are those who are politically and otherwise connected who would kill brazenly in order to silence those who expose criminality. Given South Africa’s high crime rate and the soft underbelly of a largely dysfunctional state, the perpetrators have little fear of being caught, and, if they are, the consequences are mostly insufficient.
So, the impunity continues.
Last week’s reports of the assassination attempt on SARS advocate Coreth Naudé in Durban was another such incident and yet another brutal and chilling reminder of the dangerous elements within our society.
Naudé was involved in several high-profile SARS tax inquiries. The cowardly attempt on her life raises serious concerns about the possibility of the attempt being an assassination linked to matters investigated by her.
Read more: Using law to destroy law, and ultimately our constitutional system
Last year, Bosasa liquidators Thomas and Cloete Murray were assassinated with no resolution to the case as yet. There was also the murder of Anti-Gang Unit police officer Charl Kinnear, who was investigating cases involving organised crime, and last week forensic investigator Zenzele Sithole was shot dead in Johannesburg.
These events, apart from causing unspeakable pain to the families of the victims, point to murder being used as a tool to delay, distort, and pervert the course of the law.
This situation is untenable, and it goes without saying that it undermines the very fabric of our democracy. Or, as new Police Minister Senzo Mchunu has said, these assassination attempts are an attack on the state.
Fortunately we now have a minister who is more thoughtful and not given to theatrics like Bheki Cele before him, with hat on, appearing on the scene as a master of photo opportunities.
Mchunu immediately responded to the Naudé attempted assassination, saying: “Ordinarily I would be expressing concern about the situation, but it is far too big an incident to express only concern. We are embarking on an investigation, the SAPS and DPCI (the Hawks), to get to the bottom of this. Clearly, people who launch attacks on law enforcement personnel, be they police, be they any others, people investigating, it is an attack on the state. These are people who don’t want South Africa to thrive. They are attacks on our democracy, and it should not be allowed.”
It is clear what those accused of criminality want – they want silence and they want to place a chilling effect on those in the justice system who seek to uncover their wrongdoing (and the media are equally under threat).
Read more: Deep-sea mining would industrialise the last remaining intact ecosystems on the planet
It is easy to spew forth well-meaning words at this time that the perpetrators must be brought to book without delay, but these words must be followed by concrete action. This will require increased whistleblower protection, but also coordinated efforts between the police, the Hawks, the Special Investigating Unit and the National Prosecuting Authority. “Joined up government” is not something our country is good at, though we speak it well.
These institutions need to work together to investigate and prosecute those involved in these acts of impunity. It is a matter of life and death. Literally.
Mchunu is correct when he says these are attacks on the state and the rule of law. We need to guard our democracy from those outside the system who wish to destroy the rule of law, but also those within it.
“A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist.”
This quote is attributed to Cicero, the Roman lawyer who himself railed against the excesses of the late Roman Republic in many of his prosecutions, most famously against Gaius Verres.
Corruption, disorganisation and bloody battle
Ironically, one of the charges against Verres was that he enriched himself through public construction contracts, most notably fixing the Temple of Castor and Pollux. The Roman Republic eventually destroyed itself through corruption, disorganisation and bloody battle.
On 20 July 2024, former Constitutional Court Justice Edwin Cameron (now head of the Judicial Inspectorate for Correctional Services) received the Sydney and Felicia Kentridge Award where he clearly sets out the existential threats to the rule of law in our country and echoes a warning about those within the legal profession who undermine the rule of law.
The times we live in demand our courage and resolve, particularly from the legal profession, and Justice Cameron warns us to be careful of those who would undermine the Constitution and the rule of law because they want to see the barriers to looting disabled.
He says, powerfully:
“More dangerous are the lawyers, including some advocates, who seek to propel that agenda. Some are skilled liars, dissemblers, manipulators and propagandists. They employ the implements of legal practice to bedevil and confuse and dismay… They have even used the Judicial Service Commission to wreck the advancement of conscientious and capable candidates for judicial preferment.
“They are a small minority, yet attract disproportionate attention and publicity, often self-generated. What they do diminishes trust in legal institutions, judges and constitutional values – and they do this with the objective of enabling and empowering those who seek to reduce our country and our institutions to a free-for-all zone of criminal syndicalism and looting.”
We know these lawyers well. They are in the news daily defending the State Capture project and those who were involved in it, and the new and shameless scamsters who pose as those wanting to uphold constitutional values.
Their enablers are those running concerted campaigns on social media who rail against NGOs, the media and others who expose them for the hollow (and deeply dishonest) men and women they are.
Act without fear of intimidation
But truth has a way of showing itself. And as Cameron says so well, it is up to the judiciary and the profession to “call out duplicity” and to act without fear of intimidation.
Thus far, professional bodies have seemed reluctant to get into the fray when some of their colleagues have conducted themselves inappropriately. The Legal Practice Council, for instance, seems unfit for purpose and paralysed by weak leadership. It is a mixture of self-protection and reflects the divisions within the legal profession itself – another legacy of the Zuma years and the undermining of the rule of law and questioning of the Constitution itself.
The profession and the judiciary should heed Justice Cameron’s wise words. For we cannot afford ambivalence on the defence of constitutionalism and the rule of law. Our country is in a distinct moment where courageous democrats are needed across society to sound a clarion call for truth.
Silence is the enemy of democracy. DM