From SLAPP to SLOW
Stopping Strategic Litigation On Whistleblowers.
Given the plethora of whistleblower stories coming out, it seems that Mandy Wiener’s book ‘The Whistleblowers’ has opened a new genre of non-fiction literature. It has also revealed a rather empty niche begging to be filled by helping professionals and spiritual directors to provide psychosocial and spiritual support to this category of speakers of truth to power. Listen closely to their stories, and rather disconcerting truths about power emerge — truths that we must all embrace if South Africa is ever to weed out its systemic, endemic corruption at the roots.
Perhaps the most upsetting chapters in Mandy Weiner’s excellent book The Whistleblowers tells two separate stories of whistleblowing that led to the deaths of two deeply loyal card carrying members of the African National Congress (ANC), Moss Phakoe who tried to expose corruption in the Rustenburg municipality, and Jimmy Mohlahla of the Mbombela Municipality who tried to expose the dirty deals surrounding the building of the Mbombela stadium before the 2010 football world cup. Her chilling account of the former could equally describe the latter.
“There was no disputing that Moss Pakoe’s blood ran black, green and gold — he was still wearing his black and yellow ‘Vote ANC’ t-shirt — but now as his life ebbed away, his blood ran crimson.”
Neither of these assassinations have been prosecuted.
What really upset me was the similarity with the murder of Bazooka Rhadebe, chair of the Amadiba Crisis Committee, on 22 March 2016. He was more than a client to me. He was a friend with whom I had developed a close, trusting relationship. He told me stuff, which I tried to convey to successive ministers of mineral resources as well as the shareholders of Mineral Commodities Ltd (MRC), the Australia-based mining company involved.
Yet, Karma is a thing too.
Paradoxically the SLAPP suit enabled me to have more empathy with whistleblowers who have shared their stories of pain, suffering, exclusion and unrelenting ‘lawfare’. Ironically, as I have in turn shared my own story with them, bonds of trust and solidarity have formed.
We are discovering that ‘power with’ will always trump ‘power over’ tactics as Brené Brown teaches. It is just a matter of time. Former MRC executive chairperson Mark Caruso (my plaintiff) has unwittingly helped rather than hampered me. He has given me common cause with them. He has enabled me to be less of a professional clinician and more of a participant in our shared experience of the shocking abuse of legal process by power to intimidate, isolate and unnerve us. Wielding ‘power over’ may force people to submit. But it can never force them to cooperate. That requires trust.
Mark Caruso’s ‘power over’ efforts to silence and intimidate are unravelling fast. He has already been fired by the board of MRC for dishonest dealing. Reality has caught up on him and they simply don’t trust him anymore. Later this month he will be in the dock in a Perth courtroom facing criminal charges for assault and burglary. The charges are unrelated to his bullying tactics in South Africa but substantiate the belief that he is a bully who only understands ‘power over’ strategies for getting his way.
Real People with Real Stories.
Truth and trust are conjoined concepts.
Truth breeds trust, and the fruits of this union makes society functional in five institutional domains — politics, academia, law, religion and the media. Abuse of power by leaders in any of these institutions only serves to delegitimize the authority they require to function. But such ‘soft’ issues cannot be mandated from Power. They can only be inspired from within. Thus, trust and truth need to be embodied in real people with real stories: in other words, whistleblowers. If truth is ever to be meaningful in universal rationality it must be grounded, empirical lived experience.
SLAPP suits are a standard weapon in the armoury of power, and take various forms (defamation suits, interdicts and bogus disciplinary procedures). As I write, my whistleblower support WhatsApp feed is advising me to tune in to the testimony of Passenger Rail Agency of South Africa (PRASA) whistleblower Martha Ngoye at the Zondo commission of enquiry into state capture.
In a previous appearance Ngoye had identified herself as a whistleblower and asserted that she was being victimized. This was despite having saved PRASA millions of rands by exposing fraudulent deals. Although her former boss Lucky Montana is no longer Group CEO of Prasa, he clearly wields power over the board, and having baked some pork pies during his testimony at the Zondo Commission himself, is now desperately trying to gain control of the narrative. In January Ngoye was dismissed as head of legal services, together with two other executives Tiro Holele and Nkosinathi Khena. They contested the dismissal in the Labour Court and won. PRASA sought leave to appeal and on 13 May 2021 acting judge Moses Baloyi dismissed the application.
It is quite clear what the game plan of PRASA is. It is a variant of the SLAPP virus, which I am naming strategic litigation on whistleblowing — SLOW.
As I listened to Ngoye’s testimony live, it was quite clear that PRASA’s SLOW strategy was fast unravelling. She spoke with the same confidence and clarity that I have heard from other whistleblowers. She is clearly in touch with reality and well in control the narrative. It just rang so much more truthful than the poppycock we heard from Lucky Montana some months ago. Ngoye confidently refuted Montana’s fabrications that she was to blame for the notorious R3.5 billion Swifambo Deal.
Here is another SLOW death looming. Recently City Press reported the story of a whistleblower, an employee of the Estate Agency Affairs Board, having been suspended after alleging irregular conduct and improprieties by the CEO, Mamodupi Mohlala-Mulaudzi. Despite Minister of Human Settlements, Water and Sanitation Lindiwe Sisulu having intervened to order a forensic investigation and instruct the board to suspend disciplinary proceedings, the board, chaired by Nkosinathi Biko is pressing ahead in their disciplinary proceedings against the whistleblower. This amounts to the cruel weaponizing of internal disciplinary procedures by the PRASA board
The Ancient Greek dramatist Aeschylus said: “In warfare truth is the first casualty.” Our shared experience confirms that in “lawfare” truth is the prize hostage, held captive for as long as possible by power, with eager lawyers happy to take their money to “bleed us dry”. Mosilo Mothepu’s account of how Trillian tried to do this to her is told in her book and in this interview with her.
Over the past six months I have been exceptionally privileged to listen to the stories of many whistleblowers. It is hard to say who has benefited more, me or my clients. I have recorded some of these conversations with known whistleblowers on my YouTube channel, Icosindaba.
Distorted Reality
As my dialogue with “accidental spy” Roland Hunter and former ANC MP Andrew Feinstein shows, (see “Speaking and Leaking Truth to Power”) it seems that there are two major truths about power that have emerged.
The first is that it is an addictive intoxicant that tends to distort the power holder’s perspective on reality. The more concentrated it becomes the more the perspective of the power holder tends towards “bullshit” — used here in the precise technical sense as defined by Harry Frankfurt, professor emeritus of philosophy at Princeton University in this short video “Bullshit”. Bullshit is not the same as lying. Liars try to conceal and hide the truth to deceive. Bullshitters dismiss the truth and are only interested in persuasion and intimidation. “Might is right” — or so they mistakenly believe.
The second is that whistleblowing is a vital sobering preventative vaccine against the corrupting and bullshitting tendency of power, and a vital avenue back to reality.
Picking up on the word “reality” I have branded my YouTube video series the Aletheia Dialogues. Aletheia is a classical Greek word that is usually translated as “truth” in biblical texts. More precisely it means “an accurate perspective on reality”. Power will always tend to have a distorting effect and try to control the narrative. Powerless and ostracised whistleblowers may have their own biases born out of fear and loneliness, but as I have worked to support them to overcome the “poverties” of their fundamental human needs system hope and healing have resulted. It soon becomes abundantly clear who — of the powerful or the powerless — has a more accurate perspective on reality.
My most recent dialogue was with former government spokesperson Themba Maseko. We talked under the shade of “Wangari’s tree” in Johannesburg’s Delta Park. He tells the story of why he blew the whistle on former president Jacob Zuma and the Gupta family. It is sandwiched between the story I tell about the tree that the late great Nobel Peace laureate Wangari Maathai planted 16 years ago to launch the Southern African Faith Communities Environment Institute. I believe it provides a great “root metaphor” for why whistleblowers need to be protected.
Four planks
Besides legal reform measures my dialogues point to four other planks that must be joined up to provide a firm platform upon which a culture of whistleblowing can flourish.
Firstly, society needs to fund helping professionals and spiritual directors so that whistleblowers can get the psychosocial and spiritual support they need. Maseko makes that noticeably clear.
Whistleblowing has become something of a prophetic vocation which requires specialised spiritual guidance. I believe faith based organisations need to develop specialised training for pastors, priests, rabbis, imams and sangomas to better support whistleblowers and potential whistleblowers. Perhaps this is something for the Jesuit Institute to take up for roaming Catholics like me.
Secondly, society needs somehow to stop funding legal professionals who actively hinder and obstruct the emergence of truth — or worse, condone perjury by letting their clients submit false affidavits, as I have now often seen. We need to “Stop SLOW” (SSLOW). How about a new protected disclosures act that introduces some punitive measures against lawyers who have no respect for truth and the rule of law, and conspire in abuse of legal process?
Thirdly, the media needs to be a safe harbour for whistleblowers.
If a whistleblower cannot be killed, or intimidated by “lawfare” as was the case with police reservist formerly embedded in the notorious Cato Manor organised crime unit and whistleblower Aris Danikas, power will resort to a strategy of character assassination through the media. My article elaborates on the matter. Daily Maverick has now apologised to Danikas and published a prominent right to reply. The Daily Maverick is now again a safe harbour for whistleblowers. Thank you, Branko Brkic.
Finally, we need to also hold the feet of all political parties, especially the ANC, to the fire to ensure that they internalise a culture of support for whistleblowing within their own ranks. In future Aletheia dialogues United Democratic Movement leader General Bantu Holomisa andKwaZulu-Natal anti-corruption activist and whistleblower Thabiso Zulu are scheduled to share their insights and experiences.
Conflict of interests
To conclude: State Capture was greatly facilitated by the legal profession, and even perfecting the Protected Disclosures Act is not going to stop lawyers from abusing legal process to run attrition tactics against whistleblowers. For as long as there are deep pockets to pay them, lawyers will find ways of waging lawfare. Neither is it going to stop state actors from abusing their power. Those same deep pockets go deeper still.
South African anti-corruption lawyer Colette Ashton points out that international anti-corruption law is built on the premise that the executive has an inherent conflict of interests when it comes to prosecuting corruption because the beneficiaries of corruption are also ultimately responsible for enforcing anti-corruption laws. Now that the arms deal scandal and the State Capture conspiracy have demonstrated just how easily the executive succumbed to these forces, it would be folly for whistleblower protection to be entrusted to the state alone. Active citizens working in civil society and social media is where truth, trust and authentic transformation will emerge.
But the state must never be allowed to shirk responsibility for effective and incorruptible policing, prompt prosecution and appropriate sentencing. Civil society will deliver whistleblowers to them, but only if in return they get some vindication through the courts.
Justice delayed is justice denied. When justice is interminably delayed something far more ominous occurs — injustice is compounded.
