How to navigate the whistleblowing minefield in SA | Fin24
 
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How to navigate the whistleblowing minefield in SA

Aug 29 2019 15:25
Amanda Visser

Whistleblowers are generally good, brave and courageous citizens. Yet, in South Africa, they are often treated as dodgy snitchers and troublemakers.

Some of those that have lifted the lid on corruption have been fired and subjected to harassment, intimidation and victimisation.

This culture causes many to fear for their livelihoods – and in some instances even their own lives and the lives of their families. 

South Africa boasts several pieces of legislation concerning whistleblowing, of which the Protected Disclosures Act is the ‘main act’.

This act places an obligation on employers – in the public and private sectors – to create internal policy and procedures for receiving and dealing with information regarding improprieties.

The act also requires employers to make their employees aware of their policy and its procedures, says Cherese Thakur, legal researcher at the Helen Suzman Foundation.

The legislation, however, does not have an enforcement provision for the obligation.

“It’s not possible to determine the degree to which employers are complying with this provision and what steps are taken to draw up a whistleblowing policy and making sure that their employees are aware of it.” 

First port of call 

If a company does have a robust whistleblowing policy in place, and the employer offers sufficient guidance on its procedures, the act requires whistleblowers to use the company’s internal procedures as their first port of call. 

If they fail to follow this route, their disclosure can be considered “unprotected”, explains Deborah Mutemwa-Tumbo, head of legal and investigations at Corruption Watch. She adds, however, that the act does allow for certain circumstances where people may make a general disclosure and still enjoy protection. In the newer version of the act it is stated that if the person has a “reasonable apprehension” that they will suffer occupational detriment, they can make a general disclosure to either the media or non-governmental organisations such as Corruption Watch, she says. 

Thakur recommends that when people decide to make a general disclosure that they approach a Chapter 9 institution – such as the Human Rights Commission, the Gender Commission, the Public Protector – or Corruption Watch and the Platform for the Protection of Whistleblowers in Africa before going public (such as approaching the media, for example). 

These institutions are empowered to receive complaints or disclosures and if they are not the correct institutions, they can refer the matter to the more appropriate body. Thakur does warn that the requirements for making a general disclosure are rather vague, and if she were a whistleblower, she would be hesitant to go forward without taking legal action. (See sidebar.)

Corruption Watch executive director David Lewis explains that “The legislation should also be clear and easy to understand so that whistleblowers feel comfortable coming forward, knowing that they are protected, without necessarily having to obtain legal advice.” He says they are receiving a large number of complaints and disclosures and are able to evaluate the strength of the disclosure and the evidence upon which it is based. 

Mistrust in internal processes 

Corruption Watch’s Lewis points out that corruption hotlines in many instances are merely a tick-box exercise. The overwhelming reason why people do not want to report improprieties is because of fear for their lives and fear of retribution.

An added complexity is that when people report really serious corruption it is usually not that difficult to identify at least three or four people who may be privy to the information, he explains. Even if Corruption Watch would never disclose the name of anybody who made a disclosure to them without their express permission, it makes it extremely difficult to investigate the allegation without engaging with the person concerned, says Lewis.

“I think it is very difficult to provide anyone with a guarantee that they will be protected, or that they will even get the limited protection offered by the Protected Disclosures Act,” says Lewis.

There have been instances where whistleblowers experienced occupational detriment (being dismissed, demoted or victimised) despite the provisions in the act. The onus of proving that they have suffered harm then fell on them. Many faced trumped-up reasons for their dismissal while others were worn out by protracted litigation, explains Mutemwa-Tumbo. Accorfing to her, whistleblowing in SA is a high-risk, low-reward endeavour. 

“We rely fully on the person’s moral courage. There is no incentive.”

Developing incentives

One incentive is to create a legal fund. Whistleblower rights are “illusory” if they cannot be enforced due to a whistleblower’s financial constraints, says Thakur. 

Another possible incentive is to reward whistleblowers when their disclosures lead to the uncovering of fraud and theft. In the US, the False Claims Act allows whistleblowers to receive a portion of monies recovered following a disclosure relating to the defrauding of the government. In a research paper she points out that the US government paid out $392m to whistleblowers who exposed fraud and false claims in the amount of $3.4bn in the 2017 fiscal year. 

“The aim of providing rewards or honours would not be to enrich whistleblowers, but rather to encourage a behavioural shift away from apathy, paralysing fear, or indifference towards disclosure of wrongdoing,” says Thakur. 

Another incentive is a whistleblower Ombud. The whistleblower would then make a protected disclosure to the employer but will also inform the Ombud. If the individual suffers occupational detriment, there would be no need to find the resources to battle the matter in court. 

Whistleblowers should be treated with respect and dignity, and they should be rewarded for the difference they make in society. The myriad of commissions of inquiry into corruption and improprieties are changing attitudes in SA, says Lewis.

“At least people are starting to understand that there will be no end to corruption if people do not blow the whistle”, he says.

This article originally appeared in the 29 August edition of finweek. Buy and download the magazine here or subscribe to our newsletter here.

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