Part one of our mini-series on South African laws that protect whistle-blowers focused mainly on the Protected Disclosures Act (PDA) – our main piece of legislation – and the key ways that it differs from international best practice. In part two we examine how the actual procedures for making a disclosure measure up.
Once the whistle-blower has made up their mind to take that big step, the mechanisms for reporting corruption must invite the confidence to do so. This is because a coherent, stringently observed process for the reporting and investigation of wrongdoing is a powerful tool against infringement of whistle-blowers’ rights, says the Helen Suzman Foundation (HSF).
The Transparency International (TI) guidelines on best practice in whistle-blower legislation highlight the importance of whistle-blowers having trust in the reporting mechanism and feeling comfortable enough to use it. This applies to all three of the most commonly used reporting channels – at work, to relevant authorities, and to external or public parties.
Furthermore, it’s important that whistle-blowers are made aware of the avenues open to them, as well as the requirements for making their intended disclosure.
Section 3B of the PDA sets out the details of the procedure to be followed after a disclosure is made. This includes time frames. An important provision in section 3B, says HSF, involves the possibility of referring the disclosure to a person or body that could more competently deal with it – thereby taking the pressure off the whistle-blower to find the right forum to deal with the disclosure, and facilitating reporting of the disclosure to the person best placed to take appropriate action. This amendment is a step forward for whistle-blower protection.
The TI guidelines also place emphasis on anticipating retaliation and victimisation against the whistle-blower and here, best practice includes compensation for the whistle-blower, not only where they suffer an occupational detriment, but also where the employer fails to meet an obligation to protect them. One way to do this, says HSF, is to place a positive obligation on organisations to take steps to protect whistle-blowers, with a corresponding sanction if they fail to do so.
The PDA’s protection against anticipated retaliatory attacks does not go far enough in terms of the TI guidelines. It states only that a threat by the employer to dismiss or demote – or worse – is itself an occupational detriment and therefore, the whistle-blower is entitled to seek the same remedies for a threat of and the action of occupational detriment. But the PDA does not lay out a requirement for the employer to actively take steps to prevent harm to the whistle-blower, and HSF suggests that an express obligation be placed on employers to protect whistle-blowers against such retaliation, with provision made for compensation if this is not done adequately.
Internal reporting mechanisms
Studies show that most whistle-blowers will turn first to internal reporting mechanisms, the TI guidelines state – therefore organisations should be required, or at the least, encouraged to put in place effective internal reporting mechanisms. While the PDA does prescribe this, it is not in an emphatic way that is likely to be effective or enforceable.
Section 2(a) of the PDA places an obligation on every employer to “authorise appropriate internal procedures for receiving and dealing with information about improprieties” and “take reasonable steps to bring the internal procedures to the attention of every employer and worker”. But, says HSF, it is highly doubtful that all employers comply with this – particularly as the PDA does not prescribe a penalty for failing to do so.
In addition, the PDA makes no distinction between large corporations and small organisations. For the former it would make sense to spend money and human resources on setting up a comprehensive internal whistle-blower protection system but for small companies with few staff, not so much. “A more reasonable approach would be to make use of a threshold, such as requiring employers with more than a certain number of employees to put in place such a mechanism,” HSF suggests, and a penalty, such a fine, can be imposed on those who do not comply.
Reporting to external entities
If internal reporting is not effective, a whistle-blower should have the option to approach an external authority with their disclosure. In terms of the PDA, a whistle-blower may make a disclosure to the specified external authorities without having resorted to internal procedures – this is in line with the TI guidelines.
There is a condition – “general” disclosures to the public are only protected if the whistle-blower has good reason for not disclosing to an employer – such as a belief that the employer will cover up the wrongdoing. But the whistle-blower may make a public disclosure without giving reasons if the impropriety alleged is of an “exceptionally serious nature” – this is also aligned with the TI guidelines.
If the disclosure involves classified information or has implications for national security, the whistle-blower may suffer an especially grievous backlash. In this case, the TI guidelines recommend:
- Special procedures and safeguards for reporting that take into account the sensitive nature of the subject matter may be adopted in order to promote successful internal follow-up and resolution and to prevent unnecessary external exposure;
- Such procedures should permit internal disclosures, disclosures to an autonomous oversight body that is independent of the security sector, or disclosures to authorities with the appropriate security clearance; and
- External disclosure would be justified in demonstrable cases of urgent or grave threats to the public, if internal disclosure could lead to personal harm or the destruction of evidence, and if the disclosure was not intended to likely to significantly harm national security or individuals.
However, there is nothing in the PDA that relates to this special category of information. The law currently in place concerning the disclosure of information relating to national security is the Protection of Information Act – which prohibits the disclosure of certain information relatings generally to state secrets, unless such disclosure is to a person “to whom he is authorised to disclose, to whom it may lawfully be disclosed or to whom, in the interests of the Republic, it is his duty to disclose it”.
It is assumed that a disclosure under the PDA will constitute a lawful disclosure and is therefore not prohibited by the Protection of Information Act.
Investigation of disclosures
Such procedures must be regulated to ensure that disclosures are investigated timeously, diligently, and consistently, says HSF, and it’s important that whistle-blowers have confidence that their disclosures will be acted upon.
The TI guidelines state that there is a duty on the body receiving the disclosure (whether internal or external) to assess its merit and to determine whether further investigation is warranted, and that organisations include time limits when drawing up their procedures for investigating or referring disclosures. In the PDA, the time limit given for this action, and for letting the whistle-blower know, is no more than 21 days after the disclosure was made – however, it makes no provisions for any enforcement mechanisms or sanction that can be used by whistle-blowers, should the investigative body fail to carry out its task.
The TI guidelines also suggest that whistle-blowers should be informed as to the outcome of their disclosure, and the PDA makes provision for this in section 3B(4). It does not include provisions for comments from the whistle-blower on the findings, but because it does not preclude this either such comment would happen at the discretion of the investigator.
Relief for whistle-blowers
The TI guidelines recommend that relief measures should include all losses – direct, indirect, financial and non-financial. In essence, to the closest degree possible, the whistle-blower should be restored to the situation that he or she would have been in, had he or she not made the disclosure.
The guidelines note that relief can take the form of reinstatement to the same or equivalent position in the case of dismissal, transfer, or demotion. Redress may also include compensation, if reinstatement is not enough. Compensation can be paid for lost past earnings, for future loss of earnings, as well as costs linked to a change of occupation.
In the PDA, remedies are discussed under section 4, and the law makes provision for a wide range of remedies which is to the benefit of whistle-blowers.
Rewards for whistle-blowing courage
One way to encourage whistle-blowing would be to create a system of rewards or honours, says HSF – this will help to solidify the view of whistle-blowing being an act worthy of reward and praise. In South Africa whistle-blowers are often regarded as the enemy, when they are in fact the good guys.
Such a regime would place emphasis not on personal enrichment, but on building a culture of whistle-blowing in South Africa. This would jump-start the much-needed overhaul of the local approach to and view of whistle-blowing. We need to move away from being suspicious of whistle-blowers, says HSF, and lean towards providing wide-reaching protection for bona fide disclosures with minimal procedural obstruction.
The reward may take the form of a pecuniary or ceremonial acknowledgement of the courage that it takes to report wrongdoing, HSF adds. The TI guidelines suggest that where a reward system is established, it should come in addition to a comprehensive national whistle-blower protection framework.
The PDA makes no provision for rewards, financial or otherwise.
For more detail and information, visit the HSF to read the full series of briefs. The series was researched and compiled by Cherese Thakur, legal researcher, Helen Suzman Foundation.