BREAKING NEWS: Constitutional Court Win for Whistleblower

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The Department of Roads and Public Works in the Northern Cape has failed in a desperate attempt to stave off implementation of a court order returning a whistleblower to work, with the Constitutional Court of South Africa dismissing their last ditch effort at appeal.

The whistleblower, Mr. Motingoe,  was employed as the head of Legal Services at the Department of Roads and Public Works in the Northern Cape. In 2013 Mr Motingoe blew the whistle on irregularities in the Department involving the tender process of a civil construction work/project at the Theekloof-pass. Mr Motingoe has a Labour Court order, and an arbitration award, against the Head of the Department, Mr K Nogwili ,and the MEC, Mr David Rooi, with both orders saying the suspension was because of his blowing the whistle, and therefore had to be allowed back to work.

The Department has used a private law firm to appeal the Labour Appeal Court order, and failed. They then applied to the Supreme Court of Appeal and failed, and applied to the Constitutional Court for leave to appeal. This has also failed.

Contempt proceedings against the Head of Department and MEC in the Northern Cape were heard in the Labour Court in Cape Town in August this year, and a judgement is awaited.

Lorraine Martin, head of the whistleblower support unit at ODAC, comments that “the cost for the whistleblower in this case have not just been the legal costs, in which he has been partly supported by ODAC, but the personal costs. He has been suspended for almost 2 years, been attacked in the media, and suffered reputational damage. We have no doubt these legal stratagems are fruitless and wasteful expenditure, and a waste of tax payer money. It is unsurprising that whistleblowers see the law as ineffective, and we urge the Department of Justice to introduce long awaited amendments to the Protected Disclosures Act."

Contact Lorraine Martin 083 530 8181 for more detail.


The State of Information in Africa #IRTKDAY2105

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To commemorate International Right to Information Day 2015 (#IRTKDAY2015), the Africa Freedom of Information Centre - alongside partner contributors like ODAC - has launched a report looking at the connection between access to information and the fight against corruption in Africa.

As Adv. Pansy Tlakula notes in her foreward:

“It is an established fact that lack of transparency facilitates and acerbates corruption in all aspects of public life whether it is public contracting, legislating on high interest issues or delivering basic services to ordinary people. Indeed, in some African countries, the quality and quantity of public services have not improved despite increase of public expenditure to deliver those services. This has undermined the realisation of human rights, in particular, economic and social rights of millions of people in some parts of the continent”.

The gist

Most importantly perhaps, the report contains recommendations for how the battle against corruption, and the promotion of access to information, might be improved in each country. For instance in Zimbabwe, while acknowledging that it "is indisputable is that information is central in empowering citizens to demand accountability", it is recommended that the legislative mechanisms in place are made consistent and more readily engaged with by citizens. And unsurprising to many information activists, in Malawi the recommendation for a dedicated Access to Information Law to be passed stands as a strong call!

Important repeated themes in the report include the call for better records management across the continent, as well as a considered exploration of the potential of the Open Government Partnership to forward ATI on the continent.

The report covers South Africa, but also Algeria, Nigeria, Ghana, Liberia, Ethiopia, Kenya, Kenya, Rwanda, South Sudan, Tanzania, Uganda, Botswana, Malawi, Mozambique, Zambia and Zimbabwe.

South Africa

The full coverage of South Africa, written by ODAC's Head of Legal Research Gabriella Razzano, is contained from pages 81-86. However, the most important recommendations are that:

  1. In furtherance of Article 9 of the AU Convention, the Information Commission should be established independently and adequately funded post–haste to give full expression to the South African Promotion of Access to Information Act.
  2. In furtherance of Article 5(3) the independence of corruption fighting must be strengthened, and the current consistent pattern of political interference halted with immediate effect.
  3. In furtherance of Article 9, 5(3) and others, South Africa should fully implement the transparency commitments it has made in terms of both National Action Plans it has tabled before the Open Government Partnership.
  4. In furtherance of Article 7(4) of the AU Declaration, the Chief Procurement Office should fully implement their e–Tender portal and capacitate SME’s for its full utilisation to be ensured.

Download the full report here.

A Worrying Tale: Information access in South Africa

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By Gabriella Razzano

On 28 September 2015, the world will be celebrating Right to Information Day. As transparency evangelists, ODAC will be trumpeting the horn of excitement for the day. However, as we count down, we though it would be a good time to reflect on the 3 key takeaways as details from our recent report on how the everyday person might experience trying to access information in South Africa:

1. People may know about PAIA, but they don't use it

81% of those questioned in the research knew about the Promotion of Access to Information Act (PAIA), but only 24% have made requests. This is in some sense a result of our audience, but also speaks to how intimidating processes involving "legalease", and direct engagement with government, can be.

2. Peoples perceptions of accessing information aren't positive

Popular negative perceptions about trying to get information from government included: a belief they would not get a response, and potential delays. An interesting complaint from one particular subsection of the group was that they weren't sure what to ask! In some sense, this is a failure of information activists. The message of how information can be used to solve your problem should be one we preach loudly and clearly. 

3. The glimmer of hope: once you use it, you're hooked!

Interestingly, those who do eventually use PAIA to access information use it frequently, in that 39% of users have made three or more requests. This is positive - but not a surprise when you consider the amazing ability access to information has to empower people. Its about enhancing dignity - if people know what to ask, and how to ask it, they become actors in their governing! We should be remembering this as we seek to spread the word on the power of information and transparency.

Download the report here

Download a simple infographic on how to use PAIA here


Pratley "stick with" our whistleblower!

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In a moving, and unusual, occurrence Pratley Engineering South Africa have issued a letter of congratulation to our whistleblowing client Mr Motingoe ahead of the court hearing this Friday 7 August at the Labour Court. The hearing will hopefully confirm that the MEC and HOD of Public Works in the Northern Cape have continually and maliciously been in contempt of court by failing to reinstate him after his brave act of whistleblowing. The private sector have often been silent on the importance of whistleblowing - in spite of the obvious benefits it poses for curbing corruption and risk management, which makes the letter highly unusual. More important, and as our research has comprehensively demonstrated, whistleblowers often travel a lonely and dangerous path while doing the right thing - we welcome all the support we can get for Mr Motingoe along this difficult, but just path!