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Speaker 1: Views and News with Clarence Ford. We all have you

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Speaker 1: force use yours call to one double four six five

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Speaker 1: six seven, join the conversation.

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Speaker 2: I'm ka talk.

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Speaker 1: So just as Minister my my loco. Kubai yesterday introduced

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Speaker 1: a new Protected Disclosures Bill, and it aims to better

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Speaker 1: protect whistleblowers for reporting wrongdoing. And again it removes or

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Speaker 1: it improves protection, prevents retaliation, and offers more offers more

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Speaker 1: support and incentives, which is good. The current law exists,

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Speaker 1: but of course it has weaknesses like unclear rules, not

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Speaker 1: enough protection. It's based on lessons from that Zondo Commission

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Speaker 1: and International best Practice Chief Director Legislative Development, Mister Lennold

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Speaker 1: Sitsi sebela Matcha joins us on the line. We also

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Speaker 1: joined via zoom by academic Athol Williams, a very prominent

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Speaker 1: then whistleblower against corporate wrongdoing. Are we going to go

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Speaker 1: to Leonard sis seblecha is ready? Sable? Metcha? Did I

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Speaker 1: get it right? Leonard? Welcome? It's great to have you.

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Speaker 1: Let's just switch him on. There we go now I

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Speaker 1: can hear you, Leonard. I want to get your surname right.

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Speaker 1: I'm gonna set that as my goal for our time together.

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Speaker 1: Just give me your surname please.

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Speaker 3: It's a civilyja it right, I had you, you got

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Speaker 3: it right?

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Speaker 1: Okay, Well, thank you for that. You are the Chief

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Speaker 1: Director Legislative Development within the Department of Justice and Constitutional Development,

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Speaker 1: and I think it's something that we can celebrate. This

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Speaker 1: amendment to the Protected Disclosures Bill. I think I'm resonating

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Speaker 1: with it very positively. From your perspective.

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Speaker 3: Is I think we need to celebrate that. We have

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Speaker 3: been calling for government to say we need to protect

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Speaker 3: our whistle blowers and understandability. People have said we're delayed,

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Speaker 3: but we have been working towards making sure that when

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Speaker 3: we publish the bill we cover most of the areas

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Speaker 3: that have been raised. And as Minister indicated yesterday, this

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Speaker 3: emanaged from some of the recommendations of the Zondo Commission

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Speaker 3: and as well the National Anti Corruption Advisory Council, and

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Speaker 3: as you know, government has made fighting corruption and priority

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Speaker 3: and therefore there are certain protections that we need to

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Speaker 3: bring or enhance in the Protected Distortions Act for those

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Speaker 3: people who are going to make disclosures. I think that's

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Speaker 3: that's what this bill aims to deal with now.

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Speaker 1: The zunder Commission specifically was very scathing in fact about

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Speaker 1: how the state failed whistleblower is. How does this you

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Speaker 1: will specifically try translate those recommendations into enforceable law.

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Speaker 3: Yeah, there are several of the new additional provisions that

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Speaker 3: we've introduced in bill which I can probably speak about

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Speaker 3: the issue of the management and the investigation of disclosures

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Speaker 3: of the improper conduct, the protection of the disclosures and

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Speaker 3: related persons which are commedy members to some extent, the

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Speaker 3: payment of an award in certain circumstances, and to provide

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Speaker 3: the mechanisms for complaint mechanisms if the disclosures feel that

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Speaker 3: they're not dealt with properly. We also importantly are establishing

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Speaker 3: electronics in front of FABASE, which is going to be

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Speaker 3: managed by the Director General Justice to make sure that

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Speaker 3: the disclosures which are received, finalised and refaret, dismissed or

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Speaker 3: create is created so as we are able to track

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Speaker 3: which disclosures are received generally and make sure that the

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Speaker 3: investigation thereof is properly coordinated. There are certain provisions that

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Speaker 3: have been expanded as well, so that to unify the

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Speaker 3: procedures that leads to employers and we're going to be

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Speaker 3: providing for clear procedures that are going to be followed

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Speaker 3: in making sure that internal when dealing with the disclosures internally.

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Speaker 3: So this we have done in alignment with some of

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Speaker 3: the international legislation from various countries and as well, I

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Speaker 3: would indicate that investigations must be carried out expedition expeditiously,

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Speaker 3: and they should be competed within a prood of twelve

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Speaker 3: months from the date of refit, which refeat will be acknowledged,

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Speaker 3: and make sure that it's properly recorded for tracking in

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Speaker 3: terms of the investigation and finalization. So where we cannot

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Speaker 3: compete within the prood of self months, there should be

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Speaker 3: a procedure that is going to be followed which would

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Speaker 3: be in the regulations. Were in a return judge we're

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Speaker 3: left to co that the requests for an extension of

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Speaker 3: course based on the resuons that would have been given

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Speaker 3: to say why we did not finalize. So the the

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Speaker 3: bill will make sure that there is a uniform the

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Speaker 3: men in which we deal with disclosures is uniform, and

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Speaker 3: that's the disclosures or the whistle blowers disclosure storry or

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Speaker 3: whistle blowers will know exactly what procedure is going to

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Speaker 3: be followed, and they with the specific time frames that

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Speaker 3: are going to be that are given. So there's quite

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Speaker 3: a lot of things that we ensure as well as

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Speaker 3: the confidentiality. And because the current provisions them to be insufficient,

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Speaker 3: so built some additional you know, enforcement to make sure

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Speaker 3: that the identity of the disclosure or the whistle blower.

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Speaker 4: Is not.

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Speaker 3: Given out. And if that okays, there are some penalties

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Speaker 3: that are associated there with with the failures that people

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Speaker 3: can and it's up to ten years and fifteen years

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Speaker 3: and it includes it may fine to that extent as well.

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Speaker 3: There is an introduction story last day's an introduction that

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Speaker 3: the provisions that are going to in book the Witness

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Speaker 3: PSI Acts, so that we're able to protect the disclosures

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Speaker 3: or whistle blowers or the related to their related persons,

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Speaker 3: including legal assistance.

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Speaker 1: Yes, yeah, okay, I get the sense that we've narrowed

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Speaker 1: the gap between state protection and witness protection. So do

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Speaker 1: whistle blowers now have the same kind of access to

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Speaker 1: the same level of security as high level state witnesses.

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Speaker 1: We've seen some of those state witnesses relocated to other

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Speaker 1: countries to keep them safe. And then I think the

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Speaker 1: other important question, who decides when a whistle blower is

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Speaker 1: at risk enough for such state funded protection.

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Speaker 3: Yeah. Remember, there's going to be an assessment of the

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Speaker 3: risk that is going to be associated with the disclosure

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Speaker 3: that has been made. So we have made a provision

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Speaker 3: that the witness protection at will be applicable with the

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Speaker 3: ASPI changes. So whether the need and with the assessment,

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Speaker 3: it will be invoked to make sure that witnesses are

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Speaker 3: fully protected according to the risk that would have been made.

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Speaker 1: And I know Athole Williams has joined us via Zoom

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Speaker 1: as well, whistleblower, activist, academic, business leader. It's good to

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Speaker 1: have you with us, Athole.

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Speaker 2: Thanks Clarence, Ah.

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Speaker 1: There he is. You've you've also been outspoken about how

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Speaker 1: witness witness protection is is lacking in South Africa. We

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Speaker 1: do have this amendment. So these amendments, the Protected Disclosures Bill,

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Speaker 1: I get the sense at least that we are moving

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Speaker 1: in the right direction. You have suffered a very significantly

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Speaker 1: what's your conclusion about the direction that we are taking.

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Speaker 2: Well, Clarence, perhaps if I may ask Advocate Sabel Limit

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Speaker 2: whether this bill applies to whistle blowers like me.

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Speaker 1: You're welcome, advocate, you can come in at any stage.

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Speaker 3: The meaning in retrospect, yeah, I think.

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Speaker 2: Yeah, exactly. There existing whistle blowers who lives have been

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Speaker 2: ruined and was suffering, and I'm asking what the Department

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Speaker 2: of Justice is doing for them and whether this bill

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Speaker 2: should be celebrated as supporting them.

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Speaker 4: Yeah.

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Speaker 3: I think the the retrospective application of legislation basically has

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Speaker 3: got certain to cons and the in this bill. I

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Speaker 3: do not recall having a retrospect application because there are

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Speaker 3: certain things that applies. But if that is something that

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Speaker 3: needs to say to understands, can we then make it applicable.

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Speaker 3: Are very considerations that needs to be made normally when

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Speaker 3: we draped piece of legislation, including a retrospective application, has

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Speaker 3: got certain times that needs to meet.

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Speaker 1: I think that's a key answer, Clarence, it is absolutely right.

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Speaker 1: I sorry, yeah, it is a key answer. But does

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Speaker 1: it at least provide a path for you as a

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Speaker 1: whistle blower to return to a normal career, to a

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Speaker 1: normal life. Is there a future that this bill brings

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Speaker 1: to you, Athol Williams and the very many other Atholes

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Speaker 1: in this country.

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Speaker 2: I don't know, Leonard, You well, the advocate has just

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Speaker 2: said no, Clarence, I mean, it's that's why I asked

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Speaker 2: that question. He's answered that question very clearly. That says,

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Speaker 2: let's be clear, this bill is about future whistle blowers.

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Speaker 2: It's not in any way serving those whose lives have

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Speaker 2: already been destroyed because government has neglected whistle blowers. Right.

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Speaker 2: I was shocked today to hear the Minister of Justice

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Speaker 2: use my name and the name of Martha and Goyer,

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Speaker 2: when that very department has never contacted us, not a

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Speaker 2: single person in five years. Clarence from the Ministry of

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Speaker 2: Justice has reached out to me to see if I'm okay?

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Speaker 2: Can that help in any way? Can I support me?

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Speaker 2: So for me, this Ministry of Justice has shown no intent,

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Speaker 2: no commitment to supporting whistle blowers, and I'm now asking

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Speaker 2: why should we be leave them now? Because it wasn't

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Speaker 2: the deficiencies in the PDA that caused the lack of

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Speaker 2: intent and lack of action, It was the lack of war.

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Speaker 3: Yeah, maybe if I may, if you allow me to.

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Speaker 1: The floor, is yours advocate?

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Speaker 3: Yes? Yeah. If there is a class in which is

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Speaker 3: close to which deals with the objects and application of

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Speaker 3: the Act but this needs to be read in context

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Speaker 3: of what it provides, and the subsection to the off

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Speaker 3: then says the because it provides for the objects and

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Speaker 3: the procedures to make a disclosure, the protection the provide

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Speaker 3: and other secting sections for payment of the award for

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Speaker 3: the management and the subsection to then talks to the

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Speaker 3: act apply into a protected disclosure that would have been

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Speaker 3: made after the date of the commencement of this section,

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Speaker 3: that is, respective of whether the improper conduct occurred before

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Speaker 3: after the management. The test will then be does the

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Speaker 3: issue that we're dealing with then fall within the objects

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Speaker 3: of the act in the manner that the provision talks to,

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Speaker 3: which is why I was saying retrospective application mostly applies

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Speaker 3: with certain contexts, and the Act and the Bill as

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Speaker 3: of now if we look at close too, does talk

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Speaker 3: to how this act is going to be applied regardless

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Speaker 3: of whether the improper conduct okay before the commencement? What

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Speaker 3: is that the objective of this act? So I think

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Speaker 3: that's the context within which we need to look at

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Speaker 3: the retrospective application.

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Speaker 1: Yeah. Again, so it was in fact Athole Williams that

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Speaker 1: has argued that occupational detriment is a sanitized term for

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Speaker 1: having your life destroyed. His life is destroyed. It is

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Speaker 1: about reintegrating him, make him feel safe in South Africa

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Speaker 1: to comeback. We want him here, we need the leader

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Speaker 1: here and I'm sure would want to be here as well.

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Speaker 1: So the question, and I think it differs in nuance

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Speaker 1: to the question that you put to the advocate, is

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Speaker 1: is there any support? Is he going to enjoy the

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Speaker 1: kind of protection if he does return?

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Speaker 3: Yeah? I think I would not. I would not answer

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Speaker 3: it with the specific yeah.

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Speaker 1: But I think I think let's let's let's move on.

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Speaker 1: I think that's an important thing that you flagged Athole.

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Speaker 1: There is that debate about offering financial rewards to to

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Speaker 1: whistle blowers that I think is informed by a United

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Speaker 1: States model. Do you believe South Africa should be paying

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Speaker 1: people to speak up or does that compromise them?

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Speaker 2: Not at all. I think it's an absurdity. I think

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Speaker 2: it's an absolute absurdity, this idea of reward. Just as

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Speaker 2: I challenged the advocate to show me any whistle blower

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Speaker 2: corruption whistle blower in South Africa who has said we

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Speaker 2: want reward, not a single whistleblower I spoke to you

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Speaker 2: in many of them ever want reward. What we do

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Speaker 2: want is the protection support, and where we have incurred

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Speaker 2: profound costs, loss of income, medical costs, etc. We want

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Speaker 2: that to be covered. We want to We've made whole

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Speaker 2: Clarence in the same way we do. Let's say with

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Speaker 2: army reservists, right, what's an army reservist. It's someone who's

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Speaker 2: living their life, carrying on with their lives, and when

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Speaker 2: our country needs them, they step in, expose themselves to danger,

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Speaker 2: and if they get hurt or lose anything, our our

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Speaker 2: government compensates them. That's what a whistleblower is. So this

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Speaker 2: idea of reward, and by the way, the reward doesn't

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Speaker 2: come from government. The reward comes from a legal procedure

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Speaker 2: which may or may not happen in fifty years time,

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Speaker 2: and paid by the perpetrator. This government is not serious

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Speaker 2: about protecting whistleblowers because in this bill there's no commitment

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Speaker 2: to funding from the government. There's no commitment to creating

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Speaker 2: government dedicated capacity, right, a department staffed with people with

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Speaker 2: influence and power to make the assessments of something like

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Speaker 2: you ask Clarence of who's going to decide when the

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Speaker 2: whistleblow is at risk. Right, we need actual people we

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Speaker 2: can point to and touch whose job it's going to

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Speaker 2: be to do this. Right now, this is not even contemplated.

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Speaker 1: I thought, I want to stay with you for a

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Speaker 1: little longer before I go back to the advocate. I

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Speaker 1: think corporate accountability should also be in focus. And the

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Speaker 1: question is does this bill do enough to ensure that

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Speaker 1: the secrecy of agreements that NDAs can never be used

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Speaker 1: to hide a crime.

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Speaker 2: Yeah, I think that that should be addressed. I think

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Speaker 2: this bill should be looked in the context viewed in

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Speaker 2: the context of our broader approach to corruption in the country. Clarence,

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Speaker 2: and I think that's where it falls down, because there's

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Speaker 2: no this is not placed in the context of a

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Speaker 2: broader anti corruption strategy. So we say, for example, you

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Speaker 2: can get witness protection. Now I ask you, with all

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Speaker 2: the sincerity in the world, are you going to send

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Speaker 2: your loved one to go into the protection of the

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Speaker 2: police service that the Midlunger Commission is exposing as is

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Speaker 2: profoundly corrupt. I mean, I'll be exposing myself to more danger.

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Speaker 2: And so I'm I'm not debating the details of this bill.

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Speaker 2: We can do that. It's it's adjusting the chairs on

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Speaker 2: the Titanic that we need to see a government who

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Speaker 2: says we are going to be serious with fighter corruption

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Speaker 2: and protect to mustleblowers. We're going to treat them as

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Speaker 2: humans with dignity that our constitution promises. And part of

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Speaker 2: that Clarence is actually engaging with us. How can the

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Speaker 2: government even put forward a bill mention Martha and Goyer

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Speaker 2: mention Athel Williams when they haven't even spoken to us,

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Speaker 2: They showed no interest in us. In fact, it's because

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Speaker 2: of their inactivity that we are in the danger we are.

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Speaker 1: I guess Athol Williams and Advocate Leonard size Sebele Mecha,

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Speaker 1: Department of Justice and Constitutional Development, Chief Director Legislative Development.

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Speaker 1: I want to touch on Advocate. I want to touch

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Speaker 1: on false disclosures as well. Previous drafts criminalized false disclosures,

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Speaker 1: and critics have argued that this has maybe been a

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Speaker 1: had a chilling effect on those who want to make

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Speaker 1: protected disclosures. I also get a sense of the Department

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Speaker 1: he still insisting on this. Now, how do we protect

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Speaker 1: sub one who's going to make an honest mistake?

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Speaker 3: Yeah, I think when we say something is false, it

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Speaker 3: definitely would fall within the definition of being false. But

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Speaker 3: if someone has got information that they believe to be

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Speaker 3: correct and it turns out that it might be fault,

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Speaker 3: I don't think the proper assessment will need to be

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Speaker 3: made because the intention is part of the thing to

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Speaker 3: say did you intend to harm the affected party? So

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Speaker 3: which is where the issue about whether you knowingly, which

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Speaker 3: is why the bill talks to knowing the information to

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Speaker 3: be false or you ought to have reasonable have knows.

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Speaker 3: So we have to distinguish between what a persenting believes,

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Speaker 3: would there have been correct information, but maybe on further

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Speaker 3: investigation or testing the veracity, it then turns out it's false.

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Speaker 3: I think that should be looked at differently because the

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Speaker 3: test when you deal with an offense, and you will

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Speaker 3: be perhaps prosecuting a person, that test would have come

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Speaker 3: work to come and be proved that there was an

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Speaker 3: intention or that you knew that is the false information.

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Speaker 1: Yes, and I think I want to close and comment

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Speaker 1: from you and from from as well. But the ball

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Speaker 1: proposes criminalizing threats against whistle blowers. How does Dodge ensure

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Speaker 1: police and NPA actually prioritize these cases?

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Speaker 3: Are you starting with me or yes?

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Speaker 1: I'm starting with you. That's the you advocate.

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Speaker 3: Yeah, I think the as we have dealt with, and

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Speaker 3: I indicated earlier that we need to have a central

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Speaker 3: database that is going to make sure that it monitors

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Speaker 3: all the cases that are reported, and if there are

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Speaker 3: any cases that they have to follow on or be

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Speaker 3: followed on by other entities of government, that also will

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Speaker 3: be tracked to make sure that there is prosecution. And because,

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Speaker 3: like as indicated, the whole procedural aspects are aimed to

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Speaker 3: be improved. And what I would request members of the

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Speaker 3: public is that where they've got certain viewels around the

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Speaker 3: gaps that they see, though fortunate, to make sure that

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Speaker 3: those issues are forward to be able to properly deal with.

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Speaker 1: We're gonna have to wrap it up, but we appreciate

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Speaker 1: your time. I've got Leonard Citicia. Now we're going to

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Speaker 1: turn out to Athol Williams. Do I hear you when

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Speaker 1: you say idly this bill should be made effective retroactively?

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Speaker 1: Is that maybe the one big missing thing in this

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Speaker 1: amendment bill.

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Speaker 2: I think, Clarence, there has to be some government provision

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Speaker 2: for supporting whistle blowers who have brought us this far

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Speaker 2: in the country to expose state capture and corruption. Now,

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Speaker 2: whether that's embedded in this bill, I don't know where

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Speaker 2: best to place it. It sounds like the advocates saying

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Speaker 2: that would complete complicate this bill. The point is, perhaps

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Speaker 2: we need this two pronged strategy of saying we will

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Speaker 2: put this bill in place for future whistleblowers, and we

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Speaker 2: will do something separately for whistleblowers have already contributed meaningful

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Speaker 2: to this country and suffered because of the absence of

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Speaker 2: this new bill. That might be a constructive way to proceed.

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Speaker 1: I think it's a very fair way to proceed. As always,

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Speaker 1: we appreciate your mind, Ethol, and yeah, we hope that

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Speaker 1: you'll be able to get your life back. We owe

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Speaker 1: it to you. I believe we've got a veteran journalist

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Speaker 1: on the line and he was there at the call

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Speaker 1: face now, I would say in the trenches, not at

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Speaker 1: the cul face, in the trenches when it comes to

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Speaker 1: corruption in South Africa. Raymond Joseph wanting to weigh in

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Speaker 1: on the conversation that we just had. Welcome Raymond.

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Speaker 4: Great to have you, hi, Clarence, thank you for this.

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Speaker 4: It's really it's really an important subject. So the issue

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Speaker 4: that I want to raise is many in the whistle

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Speaker 4: blowers who've been so discriminated against have been employed within

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Speaker 4: within state, within government bodies, within departments. In the case

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Speaker 4: of the lottery which I think our was instrumental and

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Speaker 4: uncovering over two billion rands worth of corruption happened there,

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Speaker 4: several of the whistleblowers did not were independent. They were

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Speaker 4: not employed by a government department. They were not employed

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Speaker 4: by the National Lotteries Commission. And they blew the whistle.

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Speaker 4: They blew. They blew the whistle on the corruption there.

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Speaker 4: People's lives were threatened. There was arson. In one case,

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Speaker 4: one person who blew the whistle ran a drug rehabn

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Speaker 4: They had fell on the property, ducks, geese, turkey, turkey's swans, etc.

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Speaker 4: And in one night someone came there with a pung

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Speaker 4: and slaughtered them.

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Speaker 1: All.

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Speaker 4: That was a warning people. People's cars were delivered arsen

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Speaker 4: attacks to threaten them. When it finally came for they

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Speaker 4: and and and Apple is absolutely correct. No one. Whistle

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Speaker 4: blowers don't offer awards rewards. They off for compensation. Their

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Speaker 4: lives have been turned upside down, has destroyed them. In

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Speaker 4: many cases they've been litigated against and it's cost them

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Speaker 4: a fortune. They were turned down for compensation. Anyone who

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Speaker 4: wasn't employed by the National Lotteries Commission was turned down.

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Speaker 4: Former employees and current employees who who blew the whistle

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Speaker 4: received non monetary awards, so payments towards school fees, food vouchers,

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Speaker 4: bizarrely spa as in beauty varchers, to to to go

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Speaker 4: to go and tie to go and tilt to spa

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Speaker 4: and the This is my concern is will these people

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Speaker 4: be covered in this because they are the most vulnerable.

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Speaker 1: Whistle blowers are on the inside by implication the name

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Speaker 1: suggests that. But your sources have been absolutely impeccable, so

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Speaker 1: so sources should also enjoy the same protection.

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Speaker 4: That's your argument, Well, well, well they, I would argue,

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Speaker 4: they are whistle blowers because they turned to They turned

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Speaker 4: to me, and I would never have been able to

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Speaker 4: expose this corruption without whistleblowers. To be honest with you,

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Speaker 4: they turned to me after actually raising it with the

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Speaker 4: National Lotteries Commission, reporting it to the police, reporting it

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Speaker 4: to the hawks, and when that went nowhere, as often happened,

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Speaker 4: they turned to the media. So they didn't follow a

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Speaker 4: process by going to the going to the very organization.

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Speaker 4: I mean, in the case of National the former National

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Speaker 4: Lotteries Commission, that a whistleblowerligned and the rest department that

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Speaker 4: was running it was dealing with a committee of the

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Speaker 4: board of the National Lotteries Commission who they were reporting to.

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Speaker 4: But they were redacting because they were adapting names, because

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Speaker 4: part of it the undertaking was to protect them. That

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Speaker 4: authority was taken away and and and that people who

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Speaker 4: were running the lottery the reports about who who was

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Speaker 4: blowing the whistle was going to them. These people's lives

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Speaker 4: were being put in danger and they had no idea

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Speaker 4: that that whistle blowing line was no longer independent. But really,

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Speaker 4: you know, to cut the long story short, my concern

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Speaker 4: is what happens to people on the outside, who who

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Speaker 4: who blow the whistle on corruption? And are they covered?

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Speaker 4: These people's lives are being destroyed, They've been destroyed.

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Speaker 1: I think that guest of mine from the Department of

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Speaker 1: Justice and Constitutional Development has invited, of course comments on

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Speaker 1: the spill, and I trust you are going to make

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Speaker 1: be making.

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Speaker 4: Some absolutely intend. I'm sorry that I never got him

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Speaker 4: on air to answer them, but thank you for allowing

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Speaker 4: me to raise it. Because it's really an important issue.

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Speaker 4: Thank you, mich It's not just one or two people.

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Speaker 4: It affects a lot of people. Thank you, Plarence, thank you.

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Speaker 4: Thank you for the marine points and subject no.

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Speaker 1: Thank you for your work on that front. An incredible man.

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Speaker 1: When I started my radio my radio career in the

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Speaker 1: nineteen nineties, he worked at the Sunday Times, if I

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Speaker 1: remember correctly, and he had my first little article that

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Speaker 1: he wrote up about me, and my mom still changes

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Speaker 1: that article. I just love Raymond