A broken system cannot protect those who try to fix it

By: Stef Terblanche

Runaway corruption in South Africa and its close associates like murder, constitute the scourge that permeates almost everything in this country these days. It contaminates and destroys all it can from within the national government to the smallest municipality, from the police to officials of the courts, from health officials to private business entities, and much more. It seduces everyone from government ministers to top state officials and lowly civil servants, politicians, union bosses and business people.

It was against this sordid background that the murder last month of Gauteng Health Department official Babita Deokaran – a key witness in a probe into PPE tender fraud at the height of a killer pandemic – shocked the nation. Even if South Africa has a horrendous daily murder rate of around 57 people, her murder somehow struck a different note… because the system had failed a precious and courageous whistle-blower in the hard fight against the destructive cancer of corruption.

Deokaran’s vicious murder brought home an often-overlooked truth, namely, that the very foundations of a democracy ruled by the law will crumble away if it were not for people like her. They are owed the highest forms of protection, for their and their families’ own safety, but as much also for the survival of the country and the democracy. Corruption of such widespread prevalence is a matter of national security.

Deokaran’s murder raised many questions about how we protect whistle-blowers, or key witnesses in criminal cases, even causing President Cyril Ramaphosa to weigh in on the matter in his weekly newsletter to the public. Ramaphosa correctly pointed out that Deokaran’s murder was a “reminder of the high stakes” involved in rooting out corruption. He also correctly called for an urgent review and tightening the “numerous systems” already in place for the protection of whistle-blowers. But since then, there has been no further indication of how or when this will be done, and one fears this will be just another nice-sounding political soundbite that will gather cobwebs.

But Deokaran, however, was not the first whistle-blower or witness in a criminal case, to have died in South Africa over the last two decades or more. Another very recent high-profile assassination was that of Anti-Gang Unit detective, Lieutenant-Colonel Charl Kinnear, in Cape Town. Five suspects including underworld boss Nafiz Modack are currently standing trial. According to the state, Modack is well connected in the police, has several policemen on his payroll, and he has also been charged in several cases alongside SA Police Service (SAPS) members in an alleged gun licence racket. At the time of his death, Kinnear was said to have been investigating a firearms corruption case that may have implicated fellow police officers and gangsters.

Another chilling aspect of Kinnear’s murder is that reasons have yet to be furnished on why police protection services were removed from outside his family home just days before he was shot and killed there.

While the list of people – good and bad – murdered in the murky environment of corruption in South Africa, is indeed very, very long, it speaks, however, to a problem that is much deeper and wider than just the immediate protection of whistle-blowers and state witnesses.

Nonetheless, whistle-blowers in South Africa – whether in the state or private sectors – are protected in general by the Constitution and various Acts, including the Protected Disclosures Act of 2000, the Labour Relations Act of 1995, the Companies Act of 2008, and the Protection Against Harassment Act of 2011.

State witness protection in South Africa is run in terms of the Witness Protection Act 112 of 1998 which established an Office for Witness Protection (OWP), regulates the powers, functions, and duties of the Director of the OWP, and provides for various related matters. Witness protection can involve various state agencies including the defence force, police, intelligence services and correctional services.

The OWP, which claims to be internationally recognised as a model programme, is supposedly an independent, covert office and all its functions are classified, but it does form part of the National Prosecuting Authority (NPA) and falls under the Department of Justice and Correctional Services. The NPA, as is well known, has in the past been highly compromised, being captured and with key posts filled by people serving specific political and/or other interests. In the same vein, so too have the SAPS, State Security Agency (SSA) and Department of Correctional Services been compromised and corrupted. Right now, there’s a big question mark hanging over the motivation and procedures that led to the department and its head, Arthur Fraser, releasing Jacob Zuma on early medical parole. Evidence at the Zondo commission also tied Fraser to previously running a private spy unit for Zuma at the SSA.

Some of these state agencies have not only been infiltrated or compromised for political purposes, but also for criminal purposes, especially by organised crime gangs, of which there is ample evidence in court, police and media records.

This should provide very little comfort to anyone seeking protection in this system, whether officially from the OWP, or from the police or some other government agency. Those seeking protection also have to apply for it – it is not an automatic process. One would, however, think that in cases like those of Deokaran and Kinnear, effective protection would automatically have been extended to them, but it wasn’t.

When the entire system is so compromised by corruption and criminality, with many of the practitioners remaining ensconced in powerful and privileged positions, how can those who want to fight and fix it for the common good, ever succeed or feel secure in their efforts? Deokaran and Kinnear are grim examples of this. Differently put, you cannot have the corrupt and the criminal protect those who are exposing them.

While Ramaphosa has made a start to reform the NPA under new leadership – and it has started paying off – not enough has been done to really make a big dent. The NPA is understaffed, lacks sufficient funding, has vacancies, and as a result has a huge backlog of cases. But it’s at least a start and several important prosecutions have been pursued without fear or favour.

On the other hand, in the governing party, which is riddled with corruption, the targeting of the corrupt or criminally compromised still seems to follow factional patterns. Despite all Ramaphosa’s probably well-intentioned promises, with a few unavoidable exceptions such as former health minister Zweli Mkhize, it is mainly those of the faction aligned with Zuma, Ace Magashule and the likes, that seem to have been targeted while suspects in the Ramaphosa camp remain unaffected. This does not inspire confidence and should be addressed, or trust will be lacking, and the system won’t be fixed.

While corruption and other criminal tendencies permeate the entire public and governance sector, it is especially the deterioration of the SAPS, SSA, Correctional Services and to a lesser extent the SANDF that are of major concern. Nowhere have we seen more clearly how state capture, factional politics, power and greed have interacted more destructively to destroy efficiency and functionality. The evidence was clearly there when riots, looting and destruction erupted in KwaZulu-Natal and Gauteng in July and the security services stood by, helplessly incapacitated.

Parts of these essential services have become the personal toys of politicians at various intervals while some of the commanders used this cover to help themselves. In the process the people of South Africa are denied the safety and security supposedly guaranteed by the Constitution. And at the heart of this – the thing that makes this possible – is the ANC’s policy of cadre deployment throughout the public sector in order to “control all the levers of state power”. At the political leadership level, the recent cabinet “reshuffle” solved nothing; it simply rearranged the deck chairs as part of a narrative of damage control and shifting the focus and blame away from the real culprits – the government and its security cluster.

You may well wonder, how does a police service perform at expected efficiency levels when most of its national commissioners over the past 21 years left the SAPS under some or other cloud, including one who went to prison for corruption. And the current police minister, Bheki Cele, himself vacated the commissioner’s chair in 2012 under such a cloud. There have been numerous cases of police commanders from generals to lower ranks, from the Hawks to crime intelligence and other sections of the service, being involved in factional politics, state capture activities, corruption, theft and even murder.

In the process morale and morality throughout the service, proper training and equipping, discipline, leadership throughout the structures, and effective, efficient policing have all fallen by the wayside. If Ramaphosa is serious about cleaning up, this is where to start – appoint a competent, suitably qualified and untainted police minister and police chiefs. And under such efficient new leadership, reform and retrain the entire service. But the buck should not stop with the SAPS – a clean-up is required across the entire public sector.

Nonetheless, the frontline of protection, detection, prevention and prosecution falls to these security cluster services. The way in which these services have been depleted and are failing us, relates directly to the very preamble of the Constitution which states every citizen should be equally protected by law and which further guarantees the safety and security of all citizens while promising adherence to the rule of law for the common good. Lose these standards, and the democracy will be lost. In the meantime, those heroes who want to ensure a better future like Deokaran and Kinnear, won’t be safe in such a broken system.

Stef Terblanche is an independent Cape Town-based political analyst/consultant and journalist.