By Neil Coetzer, Maricia Smith, Bavukile Magagula, and Anthony Andrews
First published on Business Day
During June 2023 the Department of Justice and Constitutional Development published a discussion document on proposed reforms for the whistle-blower protection regime in South Africa. Taking its cue from the criticism of the Protected Disclosures Act of 2000 by the Zondo state capture commission, the document aims to examine the legal regime that provides protection to whistle-blowers in South Africa while considering the experiences of other countries and multilateral treaties regulating the issue.
The document acknowledges that the existing legislative framework influences a person’s decision to blow the whistle. Whistle-blowers bear significant risk in making a disclosure but receive little protection within the law. Harassment, intimidation, occupational detriment, unfair discrimination, criminal prosecution, anxiety, depression, financial and reputational ruin, and even physical violence are commonplace for whistle-blowers in South Africa.
The Zondo commission identified several shortcomings of the Protected Disclosures Act, such as a lack of a simple procedure for whistle-blowers to follow, a dearth of protection for whistle-blowers, no incentive for people to blow the whistle, and no guarantee that the disclosures ultimately arrive at a place where they can be appropriately investigated.
The proposed changes are, as usual, a mixed bag, stretching from the radical, impractical and unworkable (such as the suggestion that employers should pay the legal fees of whistle-blowers involved in litigation), to the salutary and long overdue. While many of the proposals are well-intentioned, they often go too far or create significant legal difficulty and uncertainty, especially by assuming that all disclosures are “protected disclosures”.
It appears to us that the most pressing issue may have been overlooked when compiling the proposed changes, namely the need for an institution or body to monitor and ensure employers take reasonable steps to investigate disclosures and, more importantly, to act on them within a reasonable period.
Other labour statutes such as the Labour Relations Act, Employment Equity Act, and Compensation for Occupational Diseases Act contain provisions ensuring non-compliance is monitored and enforced by labour inspectors, among others. The Protected Disclosures Act bears no equivalent, leaving employers to operate in a grey area where they are relatively free to deal (or not deal) with tip-offs made to them.
The current Protected Disclosures Act provides little incentive for employers to investigate tip-offs, either properly or at all. In an age where employers are increasingly taking up the cudgels on behalf of the government, their assistance and expertise in dealing appropriately with disclosures of wrongdoing is invaluable and should be encouraged as part of a concerted effort to eradicate corruption and other wrongdoing.
Conceptually, the framework set out in the Protected Disclosures Act is not ideal and must be reconsidered for ease of reporting, impartiality, expeditious handling of complaints, and proper investigations and follow-up action. To do so, we suggest the following be considered as an alternative to the current dispensation:
- An independent entity such as the South African Human Rights Commission (which is already mentioned in the discussion document) should be designated to deal with all disclosures, whether from employees or members of the public, instead of requiring employees to make disclosures to their employers or other statutory institutions. Having a central point for blowing the whistle, similar to the Commission for Conciliation, Mediation and Arbitration dealing with employment disputes and the Pension Funds Adjudicator dealing with pension disputes, ensures that the complaint is attended to and that there is a record of it, avoiding any confusion on the part of whistle-blowers, who are often unsure who to approach to make their disclosures.
- With the aid of artificial intelligence and automation processes, the disclosures received can be sorted and categorised according to various criteria, including the seriousness and the nature of the wrongdoing complained of, while also protecting the identity of the whistle-blower.
- Once received and categorised by the entity, subject to the availability of resources the entity could conduct a preliminary assessment of the disclosure and, if there appears to be a legitimate protected disclosure, would alert the relevant employer or entity to the existence of the disclosure for further investigation as contemplated by the Protected Disclosures Act.
- The entity would then be tasked with ensuring that the employer or organisation to whom the disclosure has been referred complies with its obligations under the Protected Disclosures Act. Failure to do so should be met with a fine (subject to the right of the employer to have the decision reviewed and set aside if good cause is shown).
- Where a whistle-blower suffers any occupational detriment arising from making the disclosure, the entity should be entitled to intervene and, with the assistance of any other relevant authority, investigate these claims. It may also provide assistance to the employer in any investigations, if required.
- To fund the independent entity, a levy similar to the Unemployment Insurance Fund or bargaining council dispute resolution levy could be charged to employees. That fee could be nominal. While this may seem unnecessary, many employers already pay for having a tip-off hotline operating in their business, which is likely to be rendered redundant by our proposed model.
Our view is that without these sorts of interventions the legislation, which is intended to encourage and protect whistle-blowers, will not meet its aims. Recalling the lessons of the Zondo commission, bona fide whistle-blowers are indispensable to preserving the rule of law in the fight against crime. However, those who abuse the process for their own ends should face sanctions for wasting the limited resources available.
While the discussion document was the first step in the journey towards redress, we look forward to the next proposal from the department.
