When whistleblowers win the facts but lose the law

South Africa’s fight against corruption depends on keeping a simple promise: those who expose wrongdoing will be protected by the law.

The long legal battle of the Passenger Rail Agency of South Africa (Prasa) whistleblowers Martha Ngoye and Tiro Holele has become a test of whether the state is doing that.

Nearly a decade of blowing the whistle 

More than a decade has passed since investigative reporting placed Prasa at the centre of one of South Africa’s largest procurement scandals — the so-called “tall trains” saga.

When Ngoye and Holele testified before the Zondo Commission into state capture, their evidence drew widespread attention. See Zondo:  Prasa and SAA Whistleblowers needed protection. 

In a toxic culture of patronage networks and corrupt practices, they modelled a counterculture of tonic integrity and have spent almost 10 years defending a principle many South Africans claim to support but few are forced to live: refusing to sign off on corruption.

As senior Prasa executives, they resisted unlawful decisions and exposed irregular contracts, including the notorious Swifambo and Siyangena deals. Ngoye helped block a proposed R1 billion investment in VBS Mutual Bank months before its collapse and prevented questionable payments to politically connected individuals.

President Cyril Ramaphosa and Zondo Commission chair Judge Raymond Zondo both publicly praised whistleblowers for their courage and emphasised the need to protect them. Many assumed that officials such as Ngoye and Holele would eventually be recognised for promoting the public interest.

That did not happen. Instead of being celebrated as role models of ethical conduct, Prasa continues to treat them as pariahs. 

Prasa retaliated against them by arguing that they were not permanent employees but fixed-term employees whose contracts had lapsed. Their employment was terminated and Ngoye was publicly defamed.

They took the matter to the Labour Court and won. In court papers, the whistleblowers described a meeting with a senior department of transport official who allegedly warned that no employee could “out-litigate the state” — an allegation Prasa never addressed.

The Labour Court ordered their reinstatement, finding the dismissals unlawful and noting that Prasa produced no evidence of the alleged fixed-term contracts.

Yet when Ngoye attempted to return to work, she was refused entry.  Another costly round of litigation ensued. 

In the Survivor: Prasa contestation over truth, justice and good governance, Ngoye and Holele have shown they could outwit and outplay their bosses but have had to spend years trying to outlast Prasa’s “lawfare” attrition strategy that tries to hold the truth hostage.

This Message from Martha three years ago, explores her personal journey. It details how she faced systematic retaliation and intimidation, including multiple suspensions, for resisting corruption and testifying about state capture in Prasa.

However, Prasa, with the deep pockets of a state-owned entity, appealed to the Labour Appeals Court. It was unable to convince the LAC that the whistleblowers’ dismissals were with “good or proper cause”, yet in a bizarre judgment the LAC refused reinstatement on grounds never put before them by Prasa’s lawyers: that “workplace conflict might result” and Prasa “no longer required their services”. The coram (Waglay JP,  Musi JA and Gqamana AJA) seems to have engaged in judicial lawmaking and made them up. 

The result was that wrongdoing was acknowledged but without any consequences for Prasa. 

This is bizarre. What self-respecting constitutional democracy would not want two highly ethical, competent professionals employed in public service? 

To compound matters, the court ordered the whistleblowers to pay Prasa’s legal costs — the very state entity whose conduct had been declared unlawful.

The whistleblowers felt confident that an appeal to the Constitutional Court would be heard and the absurdity corrected. 

Yet, in December 2025, the Constitutional Court declined to hear their appeal, citing that it had “no reasonable prospects of success”! They have made an exceptional Recission Application pleading for the Constitutional Court to rethink.  (See Prasa whistleblowers make last bid to get their jobs back). Whether banging with widowlike persistence on the proverbial door of the unjust judge to seek justice remains to be seen (Luke 18:1-8). 

A contradiction at the heart of the case

As former chief justice Raymond Zondo said in his State Capture report five years ago, no Prasa board member needed to be a lawyer to realise that it was not in Prasa’s interests to oppose Ngoye and Holele’s court application “when Prasa had no defence on the merits”. He said he was “lost for words”. If they did not see that, he said, “they were either incompetent or unfit to serve”.

The core problem in the case is easy to grasp. How could the interests of justice be served by a ruling that acknowledged Ngoye and Holele’s dismissal as unlawful but denied them any meaningful remedy? It raises a critical question that goes beyond labour law or technical procedure: Has the legal system left whistleblowers adrift?

South African constitutional jurisprudence has long rejected the notion of a right without a remedy. Yet that is precisely where this case stands.

This cannot be excused as a paradox. It is a downright contradiction.

By declining to hear the appeal the contradiction has effectively been left unresolved by our apex court. If a dismissal is unlawful, the law must provide a remedy. Otherwise, the law becomes meaningless in practice and cannot deter criminality. 

A policy contradiction

The timing could hardly be worse.

Government has repeatedly committed itself to strengthening whistleblower protection. The National Anti-Corruption Advisory Council has recommended reforms. Plans for an Office of Public Integrity aim to rebuild institutions damaged during the state capture era.

Such reforms will gain traction only if individuals are incentivised rather than deterred from blowing the whistle. 

If exposing corruption leads to financial ruin even after legal victory, policy promises ring hollow.

A failure with national consequences

South Africa struggles to protect whistleblowers. The murders of Babita Deokaran and others demonstrated the physical risks. Cases like Ngoye and Holele’s demonstrate the institutional ones — condonation of Strategic Lawsuits Against Public Participation (Slapp) suits. The Constitutional Court has previously defined Slapp suits as actions intended to silence opponents, bury them in paperwork or bankrupt them. Prasa’s case fits that definition: prolonged legal attrition works against individuals even if their claims are manifestly right, just and in the public interest. 

The law need not criminalise whistleblowing to suppress it. It need only make justice unattainable.

The issue is not only whether Ngoye and Holele should receive reinstatement. It concerns whether constitutional rights remain enforceable in practice rather than only in principle.

The rule of law erodes not only when courts make mistakes but when apparent injustices remain unresolved.

The chilling effect: winning the facts, losing justice

This is not merely a labour dispute. It sends completely the wrong signal to the masterminds of the thugocratic machine: unlawful conduct can be defended through attrition rather than merit.

Every potential whistleblower observing this case must weigh a stark calculation:

• Expose corruption;
• Endure years of litigation;
• Win on the facts;
• And still lose everything.

If that becomes the rational expectation, silence becomes the rational choice and corruption will continue.

If the outcome stands, the message it sends is unmistakable: even when individuals prove unlawful conduct by an organ of state, they could emerge financially ruined.

Litigation becomes punishment.

Whistleblowers may learn the opposite: truth offers no protection.

A democracy cannot survive such a calculus.

Why this matters now

Unsurprisingly, hardly a month passes without another Prasa scandal. Last month M&G reported: “Prasa forensic probe into multibillion rand project finds governance weaknesses.”  

News24 is now reporting that Webber Wentzel’s forensic investigators found that Prasa’s Molefe Mosweu accepted bribes to buy expensive goods from Gucci and a blue Mercedes-Benz V300D Exclusive for R1.5 million from Sampada Finance/Avari Cars. Webber Wentzel instructed Prasa to lay criminal charges, take steps to recover the funds and discipline the implicated employees. 

That hasn’t happened. Mosweu and Mbele continue to enjoy the proceeds of their alleged crimes, while Ngoye and Holele continue to experience merciless retaliation for having told the truth. This is more than a “governance weakness”,  it is a complete betrayal of fiduciary duty. 

Rights without remedies are rhetoric. Whistleblowers without protection disappear — and with them, accountability. “Who will we rely on when the next state capture attempt comes?” Judge Zondo has asked in his retirement.

The question confronting our highest court is not only legal; it is moral and existential:

Will the law protect those who protect the law?

John Clarke is a writer, justice, peace and equality monitor and social worker supporting whistleblowers and others suffering from failures within the justice system. He was one of the six defendants in the Mineral Sands and Others versus Redell and Others matter, which recognised Slapp suits as an abuse of legal process.