Travelgate and Whistle Blowing
The curtain has finally rung down on the long-running Travelgate saga, one that will live in infamy in the annals of the parliamentary history of South Africa. While the last of those few unlucky enough to be criminally charged sinks back into the plush green leather of the parliamentary benches with a sigh of relief that proper punishment and curtailment of parliamentary careers did not feature, spare a thought for the man who started it all, Harry Charlton. He blew the whistle, lost his job and is still fighting for redress in the Courts.The background is as simple as it is tawdry. Some clever travel agents contracted to do parliamentary travel arrangements found an imaginative way of diddling the parliamentary travel allowances so as to line the pockets of parliamentarians and in no time at all scores of snouts were firmly in the trough taking what Michela Wrong has called "Its our turn to eat" in her book chronicling similar excesses in Kenya. Harry Charlton, a faithful servant of the people of South Africa, saw this in the course of his duties as an employee of parliament and did what was required of him: he blew the whistle and called in the police to investigate massive fraud.
The police, for all the usual reasons: lack of will, skill and capacity, did not make any progress with the investigation. The Minister was personally implicated as a wrong-doer; it was always unlikely that the police would have any appetite for investigating the skulduggery of one who feeds them, determines their policy and oversees their promotion. [This, incidentally, is why the Hawks can not be expected to make any progress with their arms deal investigations; the decision to put one member of their staff onto the case is symptomatic of their lack of independence and unwillingness to rock the boat full of politicians.] Eventually, in exasperation, the then speaker of parliament, Frene Ginwala, referred the investigation to the Scorpions, who applied themselves more rigorously to the task at hand. This is not to say that all Travelgate fraudsters were given the judge presidential judicial slap on the wrist (palpable conflicts of interest aside) that the numerous plea bargains entailed. Some were never charged and never repaid their ill-gotten gains. Some quickly repaid and were able, for reasons that are not entirely clear, to avoid any criminal consequences of their criminal conduct. Some were actually charged with the serious crime of fraud, but none lost their job or saw the inside of a prison cell because the court put its imprimatur on the plea bargains that were negotiated by the beleaguered Scorpions prosecutors in the period leading up to the disbandment of the Scorpions and their replacement with the far tamer police unit dubbed the Hawks. The pressures involved in having to negotiate plea bargains with those in whose hands and on whose vote all Scorpions job security and future careers depended must have been enormous. The last of the Travelgate fraudsters to actually be so unfortunate as to be charged has now pleaded guilty and like many who went before, may or may not slowly disgorge the proceeds of their crimes.
The fact that the governing alliance has been prepared to overlook the criminality involved in Travelgate, and to keep on parliamentarians who have been found guilty of fraud, speaks volumes about its attitude towards corruption. Some have even been promoted despite their criminal record, others, like Charles Ngakula - the then Minister of Safety and Security - who airily told anxious reporters that he does not keep receipts, have been allowed to fade into the obscurity of lesser posts with a degree of impunity that is both worrisome and intolerable in any democratic order under the rule of law. The entire episode reeks of disgrace and a shameful lack of accountability on the part of those who ought to have sided with Harry Charlton and assisted in bringing the wrongdoers to book. A possible explanation for the pervasive opacity and impunity is that institutional corruption is so deep seated since the conclusion of the arms deals that the Travelgaters were able to privately defend their relatively minor infractions of the law with the response that what they had done was de minimis in comparison with, for example, the amounts of the bribes paid in the arms deals, the tenders steered the way of Chancellor House by Eskom and the general culture of nepotism and crony capitalism that is pervasive in some powerful circles. The convictions of Tony Yengeni and Schabir Shaik, both for their relatively minor roles in the arms deals, are but the tiniest tip of the lurching iceberg of corruption that remains. Why? Because it extends so high in the corridors of power. The still contested (by the DA in a long running review) withdrawal of hundreds of charges against Jacob Zuma is an indication of just how high. Zuma claims he has cleared his name, but even the acting NDPP, Molokoti Mpshe, insisted at the time that the merits of the case against Zuma are good and its withdrawal was for technical reasons.
Harry Charlton's case is now on appeal to the Supreme Court of Appeal, which will have to decide whether the narrow and technical interpretation given to the concept "employer" as it is used in the Protected Disclosures Act of 2000 by the Labour Appeal Court can be allowed to stand. He lost his job, so he alleges, because he had the courage to blow the whistle on the Travelgate scheme. But, so says the LAC, the parliamentarians he shopped are not his employer and he is accordingly not entitled to the protection of an Act designed to protect employees in both the private and public sector from what it calls "occupational detriment". That Harry Charlton has suffered occupational detriment is beyond question.
Unfortunately for him, and for anyone else contemplating a public sector whistle blowing exercise, no regulations fleshing out the administrative and procedural matters necessary to give effect to the provisions of the Act have ever been promulgated, despite the fact that the Act came into force in February 2001. Nor has the Minister of Justice, who is the responsible Minister, even issued practical guidelines to explain the provisions of the Act and the procedures available in terms of any law to employees who wish to report or otherwise remedy an impropriety. The term impropriety has a broad definition linked to the Act's definition of "disclosure" and certainly includes the criminal activity at the heart of the Travelgate scandal.
As the Act is peremptorily worded: the Minister "must" issue the guidelines. It is surely not asking too much of him to comply with the statutory obligation to issue guidelines after so long a gestation period. This is precisely what section 10(4) (a) of the Act requires of the Minister. The SA Law Reform Commission prepared draft guidelines years ago. If there is even a glimmer of substance in the professed anti-corruption stance of the current administration, it is surely high time that the guidelines are issued. If they are not, the Public Protector will, yet again, have to look into a breach of the law by the government.
It is lamentable that the fraudsters all still have their jobs, or at least a job, while the person who blew the whistle to exact accountability from them languishes in protracted litigation and has been dismissed from his post for doing what is indubitably the right thing.
Paul Hoffman SC, 29th September 2010
