Bophirima sccops Rusty Padlock.

ISSUED BY: ODAC

ATTENTION: NEWS EDITORS

FOR IMMEDIATE RELEASE: 

09 October 2008 Bophirima District Municipality has today won the Rusty Padlock Award, for the most unresponsive, secretive, chronically non-compliant public institution with regards to the Promotion of Access to Information Act. Amongst several contenders for the award were public institutions which all scored 0% in terms of their responses to the survey conducted by ODAC. 

Over the last three years, the Open Democracy Advice Centre (ODAC) has worked with a number of partners to develop an access to information index aimed at showing compliance and usage of the Promotion of Access to Information Act. This index has yielded a number of examples of very good practice, with the highest scoring institution getting 85%. Unfortunately, it has also shown up absolutely appalling practice, with scores of zero. The Promotion of Access to Information Act is one of the few laws based directly on a constitutional right. Its implementation is central to open and transparent government.  There is open acknowledgement by civil society, lawyers and government that this law is not working in the way it was meant to. A number of studies have linked the recent service delivery protests to poor communication, lack of information and transparency on service delivery. Parliament’s Ad Hoc Committee on Review of State Institutions Supporting Democracy noted that lack of effective implementation of the law places its benefits well beyond the reach of ordinary South Africans. The Committee then proposed a solution in the form of an information commission.

This solution has received wide support, but in the meantime, the Act continues to be more honoured in breach. 85% of requests that went to district municipalities received a deemed refusal which occurs when a formal request for information in terms of the Act is simply ignored by a public institution. 60% of provincial government departments also failed to respond to formal requests for information.   

ODAC has decided to recognise this determined refusal to implement the law with an award called the Rusty Padlock Award for the most unresponsive, secretive, chronically non-compliant public institution with regards to the Act.  In the race to the bottom, there are a number of institutions which were all competing for bottom place. These institutions are Ehlanzeni District Municipality (Mpumalanga), Motheo District Municipality (Free State), Umgungundlovu District Municipality (KwaZulu Natal), Cacadu District Municipality (Eastern Cape), Frances Baard District Municipality (Northern Cape), Capricorn District Municipality (Limpopo), Bophirima District Municipality (North West) and the Premiers’ Offices in Mpumalanga,  Northern Cape, North West and the Western Cape Province.  

We congratulate Bophirima District Municipality, and hope not to see them again next year.  

Contact:         Mukelani DimbaTel. no.: (021) 461 3096 or Cell.: 082 699 6586 

Protection of Information Act incoherent, says ODAC

Submissions on the Protection of Information Act were originally due today to the ad hoc Committee on Intelligence Legislation but the Committee have agreed to an extension to the  20th June. The Protection of Information Bill creates four categories of information:  

• valuable information, which must be preserved;
• sensitive information, which must be protected against disclosure
• commercial information, which must be protected from disclosure;
• and personal information, which must be protected from disclosure

Pollsmoor nurse vindicated: awarded six months salary by bargaining council

Slinger vindicated: Pollsmoor nurse awarded six month by bargaining council

Andries Slinger, a nurse and hospital manager at Pollsmoor Prison, was awarded the equivalent of six months remuneration by an arbitrator from the Public Health And Welfare Sectoral Bargaining Council. The award was made public on the 31st March. The arbitrator found that the dismissal of Mr Slinger by the Department of Correctional Services was unfair.

Mr Slinger was charged on two counts of keeping expired medicines in the hospital unit in Medium A at Pollsmoor, and failing to dispose of them. He was found guilty at a disciplinary hearing, and dismissed.
Mr Slingers dismissal followed on blowing the whistle, with Dr Paul Theron, to Parliament and the Inspecting Judge of Prisons on the healthcare crisis in Pollsmoor Prison.

Mr Slinger referred his dismissal to the Public Health And Welfare Sectoral Bargaining Council. The arbitrator found that Correctional Services failed to prove that it applied the same rule or standard to the other hospital managers. There was evidence that expired medication was also found in the other hospital sections. The arbitrator found that that the rule was not consistently applied by the employer.She said that Slinger was however negligent in failing to ensure that all the expired medication had been removed.

ODAC, the right to know law centre who represented Dr Theron, welcomed the finding. “The Ministry has suggested in a rather bizarre press release issued some weeks after the Theron judgment, that the legal findings in relation to Theron and Slinger ‘send a clear message against …poor performance and non compliance with government policy and regulations. They had apparently not realised the Slinger matter was still pending.” said Alison Tilley, CEO of the Centre.
 
“The Ministry has apparently entirely misunderstood the decisions in these matters. The ‘poor performance’ dealt with in relation to Theron and Slinger seems to us to be that of the Department. The Department has ensured that two dedicated health professionals no longer work for the Department of Correctional services, after they raised concerns in the public interest. That is the non compliance with government policy. This government has expressed itself on a number of occasions on the importance of encouraging whistleblowers. Perhaps the Minister should acquaint himself better with his own government’s policy and laws.” said Tilley.

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For more information call Alison Tilley 0832582209

Theron will not return to Pollsmoor

Dr Theron today settled his case against the Departments of Correctional Services and Health. He read a statement outside the court as follows:

"I have agreed to a settlement with the Department of Health and the Department of Correctional Services. I successfully stopped the Department of Health from disciplining me for blowing the whistle, and succeeded in getting an order allowing me back into Pollsmoor. This is owing to the work of my advocate and ODAC.

I can’t work at Pollsmoor without the full cooperation of the Department of Correctional Services. I accept that in the present circumstances, that cooperation will not be forthcoming.

I remain passionate about treating prisoners, and this passion is undiminished. However, as a medical practitioner, I have to choose the best option for my family, and the community, and will continue to serve as a forensic medical doctor at a Cape Town hospital."

The Departments have withdrawn their application for leave to appeal a previous judgement obtained by Dr Theron, permitting him to return to Pollsmoor. They have agreed to pay the majority of his legal costs. He has accepted a position with the Department of Health doing clinical forensic work at Robbie Neurock Hospital.

"The law can work for whistleblowers, but at the end of the day the culture of the institution must embrace the positive role of whistleblowers. Without that culture change, success in court does not necessarily translate into the whistleblower returning to work." said Alison Tilley, CEO at ODAC.      

Pollsmoor whistleblower back in court.

 The Labour Court will hear the application tomorrow of Dr Paul Theron, against the Minister of Correctional Services, and the MEC for the Department of Health in the Western Cape. The purpose of this application is to obtain, on an urgent basis, an interim order reinstating Dr Theron’s services at Pollsmoor. This order will be pending the outcome of a dispute concerning an alleged unfair labour practice which has been referred to the Public Health and Welfare Sector Bargaining Council, also between Dr Theron and Minister of Correctional Services, and the MEC for the Department of Health in the Western Cape. The order is also pending a review of both Respondents’ decision to remove him from his post as the senior medical practitioner at Pollsmoor and to transfer him to another facility. The judge in the matter will be Herman Niewoudt, and counsel appearing for the Applicant will be Colin Kahanowitz, and Graham Leslie. Appearing for the Respondents will Jerome van der Schyff and Norman Arendse, SC. The matter will be heard at 11 am.

Pollsmoor whistleblower back in court

Dr Paul Theron, the Pollsmoor whistleblower, continues his fight to return to work today in the Labour Court in Cape Town. The application for leave to appeal by the Department of Correctional Services, against the order returning him to work in Pollsmoor, pending the hearing of the main case, will be heard by the court. Also to be heard is the application for the Minister of Correctional Services to be held in contempt of court, based on the failure of the Department to allow Theron to return to work before they launched the appeal. The third application that will be heard is the Department’s application to hold Theron in contempt for not going to work at Lotus River Community Health Centre, following Theron understanding he had in fact been told not to report to Lotus River CHC pending today’s hearing.

“The Department are now trying to get an order against Theron for contempt of court. Is this the only way DCS want Theron back in Pollsmoor – as a prisoner, not a doctor? DCS are fighting tooth and nail to prevent this whistleblower from going back to work. They have  employed three counsel in this matter now, two of them silks, and used an appeal that has little prospect of success to stall Dr Theron’s return. We have to say that the culture of DCS needs to change, if they are to have any hope of other whistleblowers stepping forward. The response of DCS  casts a chilling effect across the public sector – a lot of work will have to be done to rebuild the state’s previous efforts to encourage whistleblowers to come forward.” said Alison Tilley, CEO of the Open Democracy Advice centre, representing Dr Theron.

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Alison Tilley 0832582209

Theron case: judge gives reasons, Correctional Services appeals.

The judge has now handed down his reasons in relation to the order of the 7 December allowing Dr Theron to return to Pollsmoor. In those reasons the judge explains that he that found Dr Theron’s rights were ‘especially worthy of protection by the Court’.

He also says in his judgment ‘It is clear that the DOH attempted to discipline the applicant for communicating with the Inspecting Judge and the Portfolio Committee. It is equally clear that this attempt foundered in the face of an application to this court. The next thing that happened was that the applicant was informed that he would no longer work at Pollsmoor….Accordingly the nexus between the disclosure and the occupational detriment has been established.”

The Department yesterday launched an appeal against this decision. An appeal suspends the operation of the order of the 7^th December 2007. Appealing an interim order in a case is very unusual, as it is very difficult to make out a case for such an appeal, but the Department have made it clear that they will fight the return of Dr Theron at every possible level.

Dr Paul Theron and the Department of Correctional Services have therefore agreed to postpone to January the hearing of Dr Theron’s urgent application to stop the Department of Correctional Services from blocking his return to Pollsmoor. This was to be heard on Friday the 14 December. Also postponed to January is that part of the application which asks that the Minister and various DCS officials be held in contempt of court.

In January the Department will also argue their application for leave to appeal the decision, and Dr Theron will argue his counter application, which he will bring in the new year, to ensure that if the appeal by the Department is lost, they cannot use more delaying tactics, such as appealing to other courts.

“The level of opposition to Dr Theron’s return is extraordinary. Thousands of rands of tax payers money is being wasted on legal manoeuvres, all of which have been fruitless, in order to stop a doctor from treating his patients. These measures begin to undermine the good work the state has undertaken in implementing whistleblowing policies throughout the public service, and give further proof of the need to strengthen the law.” said Alison Tilley, CEO of the Open Democracy Advice Centre.

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for more information call Alison Tilley

0832582209

Third court application for Pollsmoor whistelblower.

Today Dr Theron, the Pollsmoor whistleblower, launched an application in the Cape Labour Court, asking for an order declaring that the Minister of Correctional Services and two officials from Pollsmoor in contempt of the order of court granted by the above Honourable Court on 7 December 2007 by Niewoudt AJ in the matter of Paul Theron v Minister of Correctional Services and Another, Case No. C579/07. His case is that the respondents have failed to comply with paragraph 2.3 of the order in terms of which they were required to reinstate him as a sessional senior medical practitioner at Pollsmoor forthwith. Dr Theron has been unable to return to his patients in Pollsmoor since 19 July 2007 when he was suspended for blowing the whistle. The Department has acknowledged the shortcomings in its medical care of prisoners at Pollsmoor.

He is also asking for an order, directing the Minister and other respondents to allow the him free access to the clinic at Medium A Section Pollsmoor Correctional Facility for 25 hours per week in order that he might perform his work commencing at 09:00 on Tuesday 18 December 2007; and on every successive working day thereafter until paragraph 2.3 of the order made in Case No. 579/07 expires.

Secondly, on a date to be arranged with the Registrar the applicant intends making application to this court for an order directing that the Minister and the two officials are to be committed to prison for such period of time as the Court deems just or alternatively that they be sentenced to such other punishment as this Honourable Court deems just.

State Attorney asks for more time in Pollsmoor whistleblower case.

State Attorney asks for more time in Pollsmoor whistleblower case.

The State attorney has asked for time to consider the judgment of Acting Justice Nieuwoudt in the matter of Theron v The Minister of Correctional Service and the MEC for the Department of Health in the Western Cape.

Theron obtained an order from the Labour Court on Friday, immediately reinstating him as a sessional doctor at Pollsmoor, until his case against Correctional Service and Health is finalized. Theron has agreed to allow the State until tomorrow, Tuesday, to consider their position, and will present himself for work again tomorrow.

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Alison Tilley

083 2582209

www.opendemocracy.org.za

ODAC is a civil society organisation aimed at promoting an open and transparent democracy and fostering a culture of corporate and government accountability. It supports the effective implementation of rights that enable access to, and disclosure of, information.

Correctional Services ordered to allow Pollsmoor whistleblower back to prison

Today the Labour Court in Cape Town ordered Correctional Services to allow Dr Paul Theron to return to work in Pollsmoor as a sessional doctor. This order was made on an urgent basis pending the reviewing of the decision by Health and Correctional Services to transfer Dr Theron from Pollsmoor Prison to Lotus River Community Health Clinic.

“I am very pleased with the court’s decision, and look forward to returning to my work, taking care of my patients at Pollsmoor. I hope to re establish good working relationships with all my colleagues in the prison, and especially the management of the Prison.” said Dr Theron.

The Bargaining Council will make a decision in due course in respect of the unfair labour practice, and the Labour Court will review the case in due course.

“This case has demonstrated that the Protected Disclosures Act can protect whistleblowers while the court process is underway. It is important for whistleblowers to be seen to be protected by the law.” said Alison Tilley, CEO of the Open Democracy Advice Centre, the specialist law Centre which represented Dr Theron. “We trust that Correctional Services will be able to give effect to the spirit of the law in welcoming Dr Theron back to work.”

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For further comment call Alison Tilley 083 2582209

Better protection for whistleblowers in APRM programme of action

ODAC welcomes the release of the African Peer Review Mechanism Country Review Report No 5, and, in particular, its references to access to information and whistleblowing. The commitment of the Programme of Action to review the Protected Disclosures Act, is to be welcomes, and the specific commitment to better protection for whistleblowers.

“We have regarded the APRM process as an opportunity to raise concerns around the right to know, and we are very pleased with the inclusion of a commitment to better whistleblower protection in the Programme of Action” said Alison Tilley, CEO of ODAC. “The concerns we raised around access to information were, however not translated into the Programme of Action. They were highlighted fairly extensively by the country review team, and their report pages at paragraphs 659 to 663 details the finding of the review team, and their recommendation that government should develop a programme for monitoring the implementation of PAIA.  They identify the need for training, and the need for the capacity of government to process requests to be improved. They also suggest that there needs to be full political commitment to implementing PAIA. We welcome the findings of the Country Review Report in this regard, and call for the government to respond to them.”

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Alison Tilley 083 2582209

WHISTLE BLOWING LAW DOES NOT PROTECT WHISTLBLOWERS, SAY 47% OF SOUTH AFRICANS

Whistle blowing law does not protect whistleblowers, say 47% of South Africans.  

Most people (47.8%) feel that the law does not effectively protect whistle blowers. These are the findings of a Markinor survey commissioned by the Open Democracy Advice Centre, an NGO which works for effective implementation of whistle blowing law.

An additional 21.2% of people indicated that they did not know whether the law effectively protects whistleblowers or not. Less than a third (31%) felt that the law effectively protects whistleblowers

One in four i.e. 25.3% of respondents indicated that they had blown the whistle. 74.7% said that they had not done so.  Last year 20,3% of respondents indicated that they had blown the whistle.

Nearly three out of four respondents (72.8%) felt that whistle blowers should be protected. This is an improvement over last year’s figure of 69,7 %.  However, 27.2% said that there should not be protection for whistle blowers. “We remain very concerned that there is such a large group in South African society who has not yet been educated about the benefits of whistle blowing.” said Alison Tilley, CEO of the Centre.

Less than a third (31.5%) indicated that they had heard of the PDA. The majority (68.5%) said that they had not heard of it. “In the face of all the publicity around whistle blowing, people still don’t know the law, or their rights. This is a major problem – you cannot enforce rights you do not understand.” said Tilley.

Comparing these results to last year’s results there has been a slight improvement but there seems to be still much work ahead regarding these laws and processes. The results of this survey reveal that there is a lot of room for improving the public’s knowledge of these laws. Advocacy around protection for whistle blowers must also be stepped up, given the number of people saying that the law does not effectively protect whistle blowers.

The full survey, and graphics, are available on the ODAC website. 

Whistleblowers: champions for the poor.

Whistleblowers: champions for the poor. Once again it has taken a whistleblower to blow the lid off the illegal and despicable practice of price fixing.  Imraahn Mukaddam, an independent bread distributor complained to the Competition Commission that Albany, Blue Ribbon and Sasko Duens Bakeries were involved in price fixing and collusion. The courageous Mr. Mukaddam does not believe that price fixing only pertains to bread and maize meal but it could involve other essential items such as breakfast cereals, canned fruit and cooking oil.  Who suffers?  The poor who have seen horrendous food price hikes over the past year.  Another victim is the small independent distributor, many of whom have been forced to close down.   “The role of the whistleblower in raising issues of wrongdoing is very important and for this reason they should be protected from any detrimental action.” said Lorraine Martin, spokesperson for the Open Democracy Advice Centre.  “It is very common for employees who blow the whistle to be dismissed.  In our experience those in charge do not want to be held accountable for a lack of accountability in their organizations and therefore they go to great lengths to hide the wrongdoing and to get rid of the whistleblower.” 

The Protected Disclosures Act 26 of 2000 protects employees from victimization or dismissal if they make a protected disclosure.  No guidelines have been issued even though Section 10 of the Act states that the Minister of Justice must issue guidelines.  These guidelines have been outstanding since 2001. “We have made repeated efforts to raise this issue, through Parliament.  The guidelines have still not yet been passed, and await the attention of the  Select Committee on Security and Constitutional Affairs.

Theron brings application for reinstatement as prison doctor. 7 November 2007

The Departments of Health and Correctional Services face an application for reinstatement of Dr Theron, the Pollsmoor whistleblower. "The application has been served on the Departments, and we expect to hear whether or not they will oppose the matter shortly." said Alison Tilley, CEO of the Centre. “The Departments are being asked to return Theron to his position as senior medical practitioner at Pollsmoor Medium A.” Theron raised concerns about health conditions in Pollsmoor. “The Department of Health lifted his suspension, and withdrew disciplinary proceedings against Theron for blowing the whistle, but Pollsmoor does not want Theron to return to work in the prison.” said Tilley.

The full text of the notice of motion and affidavit are available at http://www.opendemocracy.org.za/cases/cases

Department of Health withdraws charges against Theron 10 October 2007

Department of Health withdraws charges against Theron

Today the Department of Health withdrew all charges against Dr Paul Theron. Dr Theron was charged with blowing the whistle on health conditions in Pollsmoor Prison to the Inspecting Judge of Prisons and the Chairperson of the Portfolio Committee on Correctional Services.

Dr Theron brought an urgent application to stop the Department of Health from proceeding with the disciplinary enquiry, and the matter was referred to the Bargaining Council for a hearing as to whether bringing such disciplinary charges is an unfair labour practice.  The disciplinary charges were withdrawn today at the conciliation hearing between Dr Theron and the Department of Health. The Department of Health has directed Dr Theron to return to work at Lotus River Community Health Clinic, and not at Pollsmoor prison. Theron will comply with the direction of the Department of Health.

“We are very pleased that the Department of Health has taken this step. There is no question but that this sends the message that whistleblowers should not be subject to sanction for blowing the whistle. They have done the right thing. However, Correctional Services continue to take the view that they do not want Dr Theron back at Pollsmoor and are refusing to allow his return there.” said Alison Tilley, CEO at the Open Democracy Advice Centre. “It seems a case of cutting off your nose to spite your face.” Theron is in the process of bringing a separate application against Correctional Services to allow him to continue to work in the prison. He still faces a defamation claim by Correctional Services Minister Ngconde Balfour.

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Alison Tilley 083 2582209

More transparency needed, says ODAC 2 October 2007

More transparency needed”, says the Open Democracy Advice Centre.  In a survey released today, the Open Democracy Advice Centre (ODAC), confirmed that only 25% of South African know about the Promotion of Access to Information Act.  “We are very concerned about the ability of ordinary South Africans to access information, and effectiveness of government systems to provide it.”, said Alison Tilley, CEO of ODAC. “We know that when there is a lack of transparency, the result is speculation, and gossip. We call for greater action on transparency in our society, in the difficult cases as well as the routine. As we have seen, for example in the case of the alleged arrest warrant for the Police Commissioner, the result of lack of transparency on an issue is not silence, but gossip, speculation, and rumour. The constitutionally mandated response to this should be openness.” The number of people who know about the Access to Information Act has actually decreased slightly in the last year from 28.4% to 25.4%, in spite of a number of initiatives to promote the Act, on the part of the SAHRC, the National Anti Corruption Forum and ODAC. “The lack of proactive implementation of this law on the part of many government departments is clearly having an impact,” said Tilley.  

More results are available on our website at http://www.opendemocracy.org.za/documents/section/5

Right to Know winners: the Golden Key awards 30 September 2007

Launch of ODAC's new web site 25 September 2007

In order to support implementation of the right to know, the Open Democracy Advice Centre today announced the launch of their new website, at www.opendemocracy.org.za. 

The site was released ahead of Right to Know Day, on the 28th September 2007. On the day, the South African Human Rights Commission (SAHRC) and ODAC will host the 'Golden Key' awards, awarded for openness and transparency. The awards will for the first time extend to the private sector, and to local government. The awards will be handed out at a ceremony which will form part of the Information Officers Forum, an initiative of the SAHRC.

Theron judgement imminent

Judgement in the Theron matter will now be made at 12:30 at the Labout Court