Court vindicates unfairly dismissed city of Ekurhuleni whistle-blower

12 Dec 2024

As South Africa observes Anti-Corruption Week, this year’s theme, Connect the Dots: Fight the State Capture Fightback, takes on profound significance in the context of whistle-blower protections — or the lack thereof.

While the Protected Disclosures Act and Labour Relations Act were established to safeguard those who expose corruption and misconduct, many whistle-blowers continue to face harassment, job loss and even threats to their safety.

One such individual, Mandisa Phosa, recently won a landmark court case against the City of Ekurhuleni after she was unfairly dismissed for exposing procurement irregularities. Her story, along with that of others like Sarika Lakraj-Naidoo, underscores the ongoing struggle for justice and protection for whistle-blowers in South Africa.

Mandisa Phosa – a case of retaliation and injustice

Mandisa Phosa, a former divisional head in the City of Ekurhuleni’s Environmental Resource and Waste Management Department, made a protected disclosure in 2020.

She revealed significant procurement irregularities related to two key projects—the Keep Ekurhuleni Clean initiative and the Covid-19 Service Delivery Plan. Phosa’s whistle-blowing exposed her line manager, Faith Wotshela, and the Bid Evaluation Committee for violating tender processes by favouring specific service providers for both the Keep Ekurhuleni Clean and Covid-19 Service Delivery Plan projects. This favouritism breached the city’s supply chain management processes, leading to significant irregularities in both projects.

Phosa’s attempt to expose the truth resulted in harsh retaliation.

In a recent labour court ruling, it was determined that Phosa was unfairly dismissed due to her protected disclosure, not for any alleged poor performance or incapacity, as the city had argued.

The court found that Phosa’s dismissal was unlawful and she should be awarded compensation of up to R2,251,279.92, a sum equivalent to 24 months of salary. This judgment came after an arduous legal battle that highlighted the widespread retaliation whistle-blowers face in South Africa.

ekurhuleni whistle-blower

Phosa’s whistle-blowing about the Keep Ekurhuleni Clean project revealed that service providers recommended by her superiors could not complete the work at the proposed cost, thereby limiting the project’s potential for job creation.

The project, designed to employ more than 2,000 community members, had its promised job opportunities slashed in half due to substandard service providers chosen through corrupt means.

Phosa also noted similar irregularities in the Covid-19 plan for service delivery, which she was completely excluded from despite it falling under her scope of work. Her subordinate dealt directly with Wotshela.

This was until the final signing of invoices after the plan had been implemented in July 2020, which she was required to sign because Wotshela was on leave and left signing powers to her. This was followed by a threatening message from Wotshela on the work WhatsApp group that there would be consequence management “to dismiss” all divisional heads with unprocessed invoices, whether they were on leave or not.

Despite her genuine concerns, Phosa was pressured to finalise the reports and overlook the irregularities in both the Keep Ekurhuleni Clean initiative and the Covid-19 Service Delivery Plan. When she refused to do so, the retaliation began. Her decision to report the wrongdoing which violated public service laws led to her harassment and eventual dismissal.

Amid increasing concerns about corruption and irregularities within the City of Ekurhuleni’s Environmental Resources and Waste Management Department, there has been a notable lack of follow-ups from the city, four years later.

However, a recent investigation by the Special Investigating Unit into a R27-million tender for providing tuk-tuks to waste pickers in Ekurhuleni has revealed existing allegations of corruption within the department.

In response to these issues, former Mayor Tania Campbell set up a task team to address the ongoing problems with waste collection and to investigate the causes behind the department’s apparent collapse.

During this time, the department’s head, Wotshela, was placed on administrative leave while the investigation took place.

In a further development, Xolani Nciza, an official earning nearly R2-million annually and the brother of ANC Gauteng provincial secretary TK Nciza, was suspended in September 2023 for allegedly submitting fraudulent academic qualifications for his senior post, reported News24. However, Nciza still holds a position in the Emfuleni local municipality as a chair of disciplinary cases. This was revealed in an oral reply to DA questions in the Gauteng legislature in February 2024, despite the questions on Nciza’s qualifications.

Wotshela and Nciza were key figures involved in the retaliation against Phosa, which ultimately led to her unfair dismissal.

City of Ekurhuleni responds

The city’s spokesperson Phakamile Mbengashe told Daily Maverick they were taking Phosa’s matter on appeal.

“After a thorough review of the recent judgment, the City has decided to appeal the decision to the appropriate higher court. In the course of this process, we successfully contacted the attorneys on record and discovered that their firm is in the process of dissolving.

“Unfortunately, they failed to inform us about this significant development, which has necessitated additional steps on our part. To support our appeal, all necessary pleadings and related documents are currently being obtained from the court file.”

He said Wotshela’s employment with the city was terminated about two years ago.

“Currently, the vacant position is being filled through the City Council’s established recruitment processes.”

On the disclosures made by Phosa and whether the city has followed up on her disclosures, Mbengashe said: “At this time, we are unable to provide specific details regarding the follow-up activities and results related to Ms Phosa’s disclosures. The matter is still subject to ongoing internal review processes, and due to the confidential nature of these proceedings, we are constrained from sharing further information.”

The larger issue – retaliation against whistle-blowers in SA

Phosa’s case is not an isolated one. Sarika Lakraj-Naidoo, a former finance director at the City of Johannesburg, also faced relentless retaliation after exposing financial irregularities.

For more than a decade, Lakraj-Naidoo reported multiple instances of alleged corruption, including suspicious contracts and fraudulent dealings.

In 2020, Lakraj-Naidoo opened criminal complaints with the Directorate for Priority Crime Investigation (the Hawks), covering another 11 suspect contracts involving R5.3-billion.

The same year, a grievance was laid against her by an official she had implicated in corruption in a 2019 SIU proclamation and her Hawks complaints. Among many other complaints she had made, one was on the procurement of or contracting for vehicle and vehicle maintenance services from Fire Raiders Ltd and other fleet management of vehicles used to deliver municipal services, including vehicles used by the city’s entities including JMPD [metro police], Johannesburg Water, Pikitup, Metrobus, Emergency Management Services, City Parks and Joburg Roads Agency.

In the aftermath, she was subjected to serious acts of intimidation. These included threatening phone calls, being followed home, being forced off the road and having to abandon her vehicle, and spotting people in parked cars taking photographs of her at home.

A medical newsletter has written that the intimidation she faced was “remarkably similar to that received by Gauteng Health Department whistle-blower Babita Deokaran before her assassination”. Deokaran, the chief director of financial accounting at the Gauteng Department of Health, exposed widespread corruption before she was killed in 2021.

In June 2023, Lakraj-Naidoo was dismissed from work on charges of gross misconduct, gross dishonesty, harassment, intimidation and bullying. By the time she was fired, she had blown the whistle on irregularities and possible corruption in the City of Johannesburg to the tune of R8.2-billion.

In December 2023, the South African Local Government Bargaining Council ruled that her dismissal was unjustified. However, while the council cleared her name, it did not order her reinstatement, which left Lakraj-Naidoo unemployed and struggling to make ends meet.

The psychological toll of her whistle-blowing journey is evident in her own words: “I thought the laws of this country would protect me, but instead, I have had every door shut in my face. Nobody helps me. I feel utterly abandoned.”

Lakraj-Naidoo’s experiences mirror those of other whistle-blowers in South Africa, who often face a combination of job loss, isolation and even physical threats. These retaliatory actions highlight the gaps in the country’s legal framework and the challenges whistle-blowers face when trying to uphold integrity and accountability.

At the time of publication, the City of Johannesburg had not responded to Daily Maverick’s inquiries on whether any follow-up actions had been taken on Lakraj-Naidoo’s whistle-blowing revelations or what the findings were. However, at the time of Lakraj-Naidoo’s dismissal, then Johannesburg Speaker Colleen Makhubele told News24 that an internal investigation had been ordered into the claims, with findings expected to be presented at the next council sitting on 21 July 2023. Updates on the investigation have since been scarce.

Whistle-blowing at the Blueprint for Free Speech Awards

Despite the immense risks involved in whistle-blowing, the actions of individuals like Lakraj-Naidoo have not gone unnoticed. She was honoured at the 2024 Blueprint for Free Speech whistle-blowing awards, a prestigious international platform that recognises the courage of those who expose wrongdoing.

Lakraj-Naidoo was celebrated alongside other whistle-blowers like Dorothy Mmushi, who exposed fraud at Eskom, and Mbuso Ngcobo, a key witness in the investigation of former Durban Mayor Zandile Gumede.

The Blueprint for Free Speech whistle-blowing prize brings global attention to the dangerous work of whistle-blowers, shedding light on their personal sacrifices and highlighting the importance of robust legal protections for those who come forward.

Need for stronger protections

Despite the legal protections offered under the Protected Disclosures Act and the Labour Relations Act, South Africa’s whistle-blower protection framework remains flawed.

Karam Singh, director of Corruption Watch, told Daily Maverick that, “The issue of whistle-blowers’ support and protection continues to be one of our main focus areas. Despite the Phosa case, most whistle-blowers still suffer from occupational detriment, intimidation and an increased sense of vulnerability.”

Singh advocates for stronger, more comprehensive legislation to protect whistle-blowers and prevent retaliation. He called for the Department of Justice to introduce standalone legislation that provides clear, enforceable protections for whistle-blowers, ensuring they are shielded from threats to their careers and lives.

Read more: Let us stand with the brave and protect human rights defenders — and honour those who have died

Call for action

“The expectation from organizations like the NPA [is that they] must fulfil their mandate without fear or favour. We have higher expectations of Parliament, public committees, and oversight structures to do their job. It’s not necessarily one comprehensive plan. It is many plans from different entities,” said Singh.

As South Africa observes Anti-Corruption Week, the stories of whistle-blowers like Phosa, Lakraj-Naidoo and others serve as a powerful reminder of the need for effective protection mechanisms for those who stand up against corruption. The country’s legal framework, while a step in the right direction, requires urgent reforms to ensure whistle-blowers are not punished for their bravery. DM

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