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Whythawk on TwitterDepartment of inJustice: the corruption of high office
Written by Gavin Chait
The liquidation profession is appallingly corrupt with large profits for those being assigned big cases. The following case history written by Dr John Grogan from Lawsure - providers of specialist legal opinions - is a chilling reminder of how far corruption can go as an honest government official falls foul of his unscrupulous minister
GENERALLY CORRUPT
Mr Tshishonga, the general manager of the Office Business Unit in the Department of Justice and Constitutional Development, learned a tough lesson — no matter how high ranking, officials don’t lightly cross swords with their Ministers.
Tshishonga’s troubles began when the former Minister, Mr Meduna, phoned Tshishonga and instructed him to meet one of his (the Minister’s) friends. The friend wished to discuss the allocation of liquidations by the department. Tshishonga was unimpressed by the Minister’s friend, and the matter went no further.
But the Minister was unhappy. He called a meeting of the panel of assistant Masters responsible for approving liquidators, and asked why his friend had not been appointed. The Minister was informed that his friend had missed out because the trade union which had backed him had not properly completed the relevant forms.
Again, Tshishonga thought the matter would end there. He was mistaken yet again. He learned later that the Minister had instructed that his friend be appointed as a liquidator in a multi-million rand liquidation in Natal.
The friend’s appointment was subsequently overturned by the High Court (subsequently confirmed by the Supreme Court of Appeal).
The Minister was undeterred. He arranged for a compliant official to re-appoint his friend over the head of the responsible official.
Tshishonga was now thoroughly alarmed. One of his obligations was to eradicate corruption in the liquidation industry. He reported the matter, respectively, to a Cabinet Minister, the Auditor-General, and the Public Protector.
Except for the appointment of a committee of two advocates, who have yet to report their findings, Tshishonga’s efforts proved fruitless.
The Minister, whose days in office were at this stage numbered, then launched an attack on Tshishonga on national television. Tshishonga filed a complaint of criminal defamation. The Director of Public Prosecutions declined to prosecute.
Mr Tshishonga then decided to take matters into his own hands. He called a press conference and handed the media two reports that had been compiled on the matter.
At this point, the tide seemed to turn against Tshishonga. First, he was “transferred” to a position without effective responsibilities. Next, he was suspended (as it turned out unlawfully) for divulging information to the media and defaming the Minister. Finally, and notwithstanding an order from the Labour Court to reinstate him, Tshishonga was charged with misconduct, and his suspension was extended.
The presiding officer at the disciplinary inquiry found that Tshishonga was not guilty of misconduct because his disclosures fell within the terms of the Protected Disclosures Act 26 of 2000.
By now, Tshishonga had had enough of the department. He agreed to leave after extracting an undertaking from his superiors that he would be paid his salary and benefits until the date he would otherwise have retired.
But Tshishonga was not content with that settlement. He launched an application in the Labour Court for damages against the former Minister and Director-General arising from his suspension, which he claimed constituted an actionable “occupational detriment”.
Tshishonga initially sought unsuccessfully to prevent the department from defending the matter because this would mean challenging the finding of its own disciplinary officer (Tshishonga v Minister of Justice & Constitutional Development [2006] 6 BLLR 601 (LC); SILCS 2006:8 – see Labour Law Sibergramme 6 of 2006). But having won that round, the department lost the final one.
In Tshishonga v Minister of Constitutional Development & another (Labour Court case no. JD 898/04 dated 26 December 2006, unreported; SILCS 2007:01) the judge was unimpressed by the fact that neither the Minister nor the DG bothered to testify to support their claim that Tshishonga had acted in bad faith and so violated the protection afforded by the PDA.
Nor was the court impressed with the Minister’s efforts to prevent the introduction into evidence of a tape of the TV broadcast in which he had launched his attack on Tshishonga.
But the crux of the case was whether Tshishonga’s disclosures to the media were covered by the PDA. The court found that before resorting to his media conference, Tshishonga had done everything possible to alert the authorities to facts which seemed to point to a major scandal.
While at the time he may not have been absolutely sure of the truth of the reports upon which he had relied, a bona fide belief in the truth of the disclosure suffices.
The court found that all whistleblowers need prove is that they subjectively believed that the disclosure concerned an impropriety listed in the Act, and that the belief was objectively reasonable. The mere fact that somebody – even a Minister – might be embarrassed by the disclosure did not deprive it of protection.
The court also held that a respondent who claims that the requirements of the PDA have not been satisfied by a whistleblower must specifically plead and prove that claim. The minister and the DG had done neither.
In the absence of evidence from either respondent, the evidence led by Tshishonga and is other witness had to be accepted insofar as it was found credible. The court found the evidence of both Tshishonga and his other witness entirely credible, and also enough to prove that Tshishonga had acted in good faith at all times, even when he resorted to public disclosure.
Importantly, the court also found that the fact that a disclosure is made to the media need not necessarily deprive it of protection. On the facts, the judge found that the matter would probably never have seen the light of day had Tshishonga not blown the whistle in public.
Tshishonga had in any event also complied with the provisions of the PDA by approaching the Public Protector, the Auditor-General and a Cabinet Minister, and he had allowed seven months to pass before making his disclosures public. By then, all indications were that none of the officials to whom Tshishonga had complained was willing to investigate the matter. Tshishonga was accordingly found to have complied in all respects with the provisions of the PDA.
Since Tshishonga’s suspension was a direct consequence of his disclosure and constituted an occupational detriment as contemplated in both the PDA and the LRA, he was entitled to relief.
On that score, the only issue was whether Tshishonga was entitled to anything over and above the amount he had been promised in the earlier settlement agreement. The court found that he was. His suspension had denied him the dignity of employment, and was akin to a form of discrimination. But since the PDA set a ceiling on compensation of the equivalent of 12 months’ remuneration, he could receive no more than that amount. His only additional compensation was the costs of the application.
This article was first published by Siber Ink as a part of the Labour Law Sibergramme 2/2007 and is reused here with permission. This analysis is written by Dr John Grogan, BA (Hons) (Rhodes), BIuris LLB (SA) LLM PhD (Rhodes), who is also a LawSure panellist.
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