Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
14 September 2010

MP’s now protected from whistle blowing

South African Parliamentarians – like other individuals in society – are sadly not free from the temptations of modern life. One MP has already been convicted of fraud and sentenced to a three year prison term after receiving a huge discount on a new car from an arms deal competitor and lying about it to Parliament. Many other MPs were convicted of fraud after they abused the travel benefits of Parliament in a saga that became known as Travelgate.

Harry Charlton, the guy who revealed the existence of the massive fraud perpetrated by some of our elected representatives against every single South African (who has contributed to the taxes that bankrolled this travel fraud), was fired soon after he blew the whistle on these MPs. The poor guy thought he would be protected by the law and that he would not be fired for exposing the criminal activities of some of our elected representatives.

Boy, was he wrong.

After Parliament fired him, he approached the Labour Court on the basis that the disclosures were “protected disclosures” as envisaged in the Protected Disclosures Act 26 of 2000 (“the PDA”, also known as the whistle blowers act) and that his dismissal was consequently automatically unfair in terms of our labour law. He won his case in the Labour Court, but Parliament appealed the judgment and the Labour Appeal Court (LAC) overturned the judgment on the basis that his disclosures were not protected by the PDA.

The PDA states that a whistle blower is only protected if he or she makes disclosures about criminal or other unlawful acts or some other specified objectionable actions of his or her “employer” or of a fellow “employee”. Parliament argued that Parliamentarians are neither employers nor employees of Parliament and that they are therefore not covered by the PDA.

In other words, it argued that if someone who works for Parliament makes disclosures about corruption, criminal activities or other nefarious activities of MPs, that person will not be protected by the PDA. An employee of Parliament would therefore have to think twice before ratting on crooked MP’s because he or she would not enjoy the same protection as the rest of us who blow the whistle on other kinds of corruption and criminality.

The Act defines an employee as, inter alia, “any person… who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer”.

It furthermore defines an employer as any person “… who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business, including any person acting on behalf or on the authority of such employer”.

The LAC decided that these definitions could not (or should not) be given a broad meaning to encompass MP’s. It rejected the argument that MP’s could be viewed as employers of the staff who work in Parliament – at least for the purposes of the PDA. The LAC rejected the argument that Parliament is the sum of its constituent parts, namely the MPs and as well as the parliamentary staff who support the ongoing operation of Parliament as carried out by the MPs. The argument that the staff perform work for the MPs and that the MPs must therefore be regarded as an employer of the staff members – at least for the purposes of the PDA – also found no favour with the LAC.

It also rejected the submission that even if one accepts that Parliament was regarded as a separate legal entity, MPs could fall within the definition of an ‘employer’ because they were all persons “acting on behalf of or on the authority of such employer”. In doing so, it did not take into account the purpose of the PDA. Nor did it interpret the provisions to promote the spirit purport and objects of the Bill of Rights as required by section 39(2) of the Bill of Rights. Instead it gave these terms more or less the same meaning as they would normally have in the labour law context – relying on rather formalistic and technical legal arguments.

It chose the most obvious literal interpretation of these terms which just happened to have the effect that crooked MP’s would largely be protected from the whistle blowing activities by uppity Parliamentary employees. With a bit more effort and intellectual rigour the LAC could have found a way to give these terms a broader meaning so that MP’s could also be subjected to whistle blowing laws. (That is what the lower court did.) This would have exposed crooked MP’s to far greater danger of having their criminal or unlawful activity exposed.

While one can quibble about the technicalities, the reasons why the LAC chose this path are rather more disturbing than the outcome. Writing for the Court, Patel JA argued as follows:

To subject MPs to the PDA may, in practice, run the risk of frustrating the democratic process. An extension of the application of ‘employee’ under the PDA to include MPs might cause statutes to become more complex. MPs ought to be entirely independent. ….Parliament submitted that parliamentary staff are answerable to the Secretary of Parliament and not to MPs. This point is important. Parliamentarians must be allowed to focus on their constitutional duty to make law. A MPs portfolio ought not to be cluttered with the additional and onerous responsibilities of being an ‘employer’ of parliamentary staff. This would hinder the effective performance of their duties and functions. This court accordingly finds that MPs are not included in the PDA.

In other words, MP’s should not have to worry that their crookedness and criminality will be exposed by Parliamentary staff, because then they will not be able to steal our money and to commit criminal offences (in-between passing laws and holding the executive to account, one presumes).

I find this line of reasoning quite startling and anti-democratic. It flies in the face of one of the founding values of our Constitution namely that our system is based on democratic government, to ensure accountability, responsiveness and openness. If anyone should be subjected to the PDA, it should be our public representatives in Parliament, whose activities are funded by tax payers and who are elected to deliver accountable, open and responsive government.

If the PDA must be interpreted to exclude MP’s (a plausible but not inevitable conclusion), then the PDA must surely be unconstitutional. This is because the PDA would then infringe on our right to receive and impart information as well as our right to vote. How can voters meaningfully exercise their right to vote if laws, in effect, make it more difficult for Parliamentary staff to expose the corruption and other criminality of some MP’s? If we do not know whether some of our MP’s are corrupt, we would not be able to make informed choices about which party to vote for and our vote would become far less meaningful.

MP’s obviously should not be required to act as employers of Parliamentary staff for the purposes of labour law or for other practical purposes. But for the purposes of the PDA, these MP’s should be subject to exactly the same threat of exposure than any other employer or employee. How else will wrongdoing by MP’s ever become known and how else will we be able to know how crooked some of our MP’s might be?

Like Caesar’s wife, our MP’s – above all – should be beyond reproach. Public trust in the democratic process and in our constitutional democracy itself is of utmost importance, but how can we trust MP’s if we know that they have passed a law that the LAC now says rightly protects them from whistle blowing? How any person could argue that the democratic process would be frustrated by protecting whistle blowers who wish to expose possible criminality on the part of MP’s, is beyond me.

The judgment of the LAC demonstrates rather vividly what happens when the transformation of our legal system is not at the forefront of judicial appointments. When judges are appointed who are not imbued with the values of our Constitution, they produce this kind of formalistic reasoning which will diminish, rather than enhance, the quality of our democracy.

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