Reading Sipho Ngcobo's piece tells me what I have always known: There is something terribly wrong with Jacob Zuma's government that targets whistle-blowers even more than the root of governmental or corporate evil... YES, WE NEED A CHANGE!!! The Land Cradle of Humankind Cannot Allow a Perpetual Comatose Lull Between Zuma Government And Capital Reduced to Marikana Massacres Against The Poorest of The Poor Alongside the Targeting of Whistle-blowers like Goodman Manyanya Phiri
Here is the Ngcobo piece!
Sipho Ngcobo argues SA does not offer protection for whistleblowers.
JOHANNESBURG - Has it ever
crossed your mind why it is that whistleblowers are the ones
who end up in court seeking protection?
As most of us probably know, whistleblowers are those
principled men and women who are brave enough to expose corrupt and unlawful practices,
particularly committed at the highest levels of their organisations.
Two prominent Labour Court cases involving whistleblowers
within four days of each in the past week are harsh reminders that there is
very little or no protection for these brave individuals despite the existence
of the Protected Disclosures Act (PDA).
On Monday the Labour Court postponed the case between Vodacom
and Mandla Mdluli a former employee and whistleblower because of some legal technicalities.
Vodacom alleges that Mdluli, a former financial manager,
developed a vendetta against the company after he was dismissed, prompting the
board to commission KPMG to conduct a forensic audit.
The KPMG report investigated 18 allegations including claims
that former CE Alan Knott-Craig had approved a R9m budget-overspend to support
a company run by his son, while an agency owned by his niece and nephew was
awarded a lucrative contract without going through a competitive tender
process.
Apparently the report cleared Knott-Craig of corruption and
wrong doing but highlighted "poor judgement" - whatever that is.
So, Mdluli is all alone now, trying to fight a monstrosity
like Vodacom. He is also jobless but is facing massive legal bills all by
himself.
I don't know what happened at Vodacom. But generally the whistleblower
becomes the prime target of victimisation by those accused of unlawful or irregular
conduct. And the real reason behind is vengeance, retaliation and retribution
sparked and ignited by whistle-blowing activities. This is the very mischief
which the legislature sought to prevent in promulgating the PDA.
But is the PDA protective of whistleblowers? The answer is
no. It has not protected whistleblowers.
A similar case was heard by the Labour Court in
Braamfontein, Johannesburg last Friday in the matter between Dudu Bongiwe Tshabalala,
the daughter of retiring Judge President of KwaZulu-Natal, Justice Vuka Tshabalala
and L'OREAL South Africa.
The issue at hand was the unfair, unlawful and
unconstitutional suspension of Ms Tshabalala following a huge fall-out with her
employers.
According to court papers, the hearing formed part of a
chain of occupational detriments aimed at getting rid of Tshabalala in
retaliation to protected disclosure in terms of which she exposed "an
admitted irregularity and possible fraud about to be perpetrated by her
employer".
The judge ordered the two parties to settle the matter
between themselves, which culminated in both of them agreeing that Tshabalala's
suspension was both procedurally and substantively unfair.
This is how it all started.
In November 2006, Ms Tshabalala was promoted to the position
of general manager in charge of Diversity for L'Oreal South Africa, which
elevated her to the company's executive committee (Exco). This meant she was going to report directly
to the managing director (SA). This also
entailed a comprehensive induction in both Paris and the United States and
becoming part of the company's diversity network as a representative of Africa
with her peers from the United States and Europe.
Her job description included managing diversity for the
whole company, working directly with peers on the main topics covered by the
charter (management, skills development, procurement, social responsibility
...). These also included drawing up an action
plan for the way L'Oreal South Africa was going to deliver its BEE compliance,
as well as its roll-out. Tshabalala's
responsibilities also included monitoring all Employment Equity Actions as
required by the Department of Labour.
She therefore, was also the company's spokesperson
(internally and externally) on diversity issues. She was also in charge of
government liaison and special interest groups like the Black Management Forum (BMF).
As part of her job, Tshabalala was to become an active
member of the L'Oreal group diversity council and to share benchmarks,
especially with Europe and the United States.
But listen to this.
When she conducted a diagnosis of the employment equity (ee)
report, which the company was to submit to the ministry of labour as required
by law, she found irregularities that, according to court papers, were fraudulent.
In short, the numbers of black executives were dramatically
inflated, which constituted a misrepresentation. In other words, some white
executives were entered in the EE report as blacks.
She ordered an immediate review and an urgent investigation.
That's when all her troubles started, which ultimately saw her being marched
out of the company premises by security. She had been suspended.
Now, where are we?
Fact is, the purpose of the PDA (Protected Disclosures Act)
is to make provisions for procedures in terms of which employees in both the
private and the public sector may disclose unlawful or irregular conduct by
their employers or by other employees and to provide for the protection of employees
who make such disclosures.
What was Tshabalala's sin?
She made a protected disclosure to her employer that the
company was just about to submit fraudulent EE information to government.
And boy is she paying the price now!
The Act can't even come to her rescue. So, whistleblowers
are dead and buried.
What do we do? Where will relief for these people come from?
Are perpetrators of corrupt practices going to continue
getting away with murder?
We need a solution.
*Sipho Ngcobo is former deputy editor of Business Report and ex-managing editor of
Enterprise Magazine. He was one of the original team members of Business Day
when the paper was launched in May 1985. He was a correspondent at
international news agency Dow Jones where he reported on markets and companies in
the early 1990s. He has also written for such publications as the Sunday Times,
the World Paper in Boston and was employed by the New York Times Group in the
US between 1989 and 1991.
Write to Sipho Ngcobo: siphon@moneyweb.co.za
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| His Honourable Penmanship, Mr Sipho Ngcobo a.k.a. Fuze!!! |
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