Whistleblowers in South Africa, as is the situation in other countries, are protected under the law. The Constitution is the first line of defence, and then there is legislation such as the Protected Disclosures Act (PDA) – known informally as the whistleblower’s act. Under this act an employee can report corruption and irregular conduct, and be protected from occupational detriment including suspension, victimisation, disciplinary procedures, refusal of a reference or physical harm, that arise because they blew the whistle.
There is also the Companies Act and the Labour Relations Act, both of which carry provisions for the protection of whistleblowers, as well as other legislation such as the National Environmental Management Act.
But what about citizen whistleblowers, who may not be employed or reporting in their capacity as an employee? They might be the parent of a schoolchild, a member of a community, a volunteer or an independent contractor. The PDA does not apply then, but the potential for harm is just as great. In his 2004 article Small Bribes, Big Challenge: Extent and nature of petty corruption in South Africa for the ISS, Hennie van Vuuren wrote that “South Africa’s poor are especially vulnerable to petty corruption”, and this still rings true today, applying to corruption found in both the private and public sectors.
The Protection from Harassment Act (PFHA), which was signed into law in April 2013, offers a measure of protection against victimisation and harassment – these are major risks for whistleblowers. It provides for the issuing of protection orders to complainants or victims, against perpetrators of acts that may cause them harm. Those who breach a protection order may be criminally charged and, if found guilty, held liable to a fine or imprisonment.
People who hide behind anonymity to send threatening SMSes or emails will find that the act compels service providers to give the addresses and ID numbers of perpetrators to the court.
But victimisation and harassment are broad terms. Fortunately the act provides specific definitions of the behaviour it is concerned with.
What types of harassment does the act cover?
In terms of section one of the act, harassment is defined as “either directly or indirectly engaging in conduct that the harasser knows or ought to know:
- causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably-
- following, watching. pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
- engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or
- sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of, the complainant or a related person; or
- amounts to sexual harassment of the complainant or a related person.“
Bullying (including cyber-bullying) is a form of harassment covered by the act.
Anyone may apply for protection
The act allows anyone who alleges or believes that they are being subjected to harassment to apply to a magistrate’s court for a protection order. Even if the harasser is under 18, an order may be granted against them if they are deemed old enough to know better – in the legal view this is the age of 14.
A child may apply for a protection order with or without the assistance of their parents or guardian. A person may apply for an order on behalf of someone else if they have a material interest in the well-being of the victim, who must provide written consent.
The complainant need not have suffered harm when they apply for the order – if they fear that they may be harmed either mentally, psychologically, physically or economically in the future, they may apply. The application, however, must be reasonable enough for the court to issue an order.
The complainant also need not know the identity of the harasser, as the court will make provision for such identification to be established.
It is important to note that making a false statement when applying for a protection order is a criminal offence.
People can apply at a magistrate’s court in the area where they live, in the area where the harassment occurred, or in the area where the perpetrator lives. There is no need for a lawyer – the clerk of the court will help with the application.
The steps are as follows:
- Make a statement under oath – the clerk of the court will assist with this step. Evidence must be provided at this point, and then the application goes before the court.
- An interim order may be granted if the complainant is suffering harm, or may suffer if immediate relief is not granted.
- Service of the application, if no interim order is granted – the perpetrator will receive a certified copy of the application and will get the chance to defend themselves in court.
- Issuing of a protection order and a warrant of arrest – if the perpetrator does not come to court on the date specified, a protection order will be granted if the court is satisfied with the evidence. If the perpetrator comes to court, a hearing will be held and the court will consider any further affidavits as well as any oral evidence.
Considering the evidence
When a magistrate’s court receives an application it must consider such an application within a reasonable time. While doing so the court may consider any relevant evidence or information, such as oral evidence or evidence by affidavit. It may also call witnesses in the case.
If the court is satisfied that the evidence points to harassment by the respondent and that the victim’s safety may be jeopardised if the respondent is notified, it must issue an interim order immediately, without giving the respondent a chance to be heard. On the other hand, if the victim does not apply for an interim order, or if the court decides not to issue one, the respondent must be notified and given a chance to show why the final order should not be issued.
When the court makes its deliberations, it will consider whether the conduct, in the circumstances in question, was related to:
- the detecting or preventing of an offence;
- revealing a threat to public safety or the environment;
- revealing that an undue advantage is being or was given to a person in a competitive bidding process; or
- complying with a legal duty.
The act considers these factors to be defences, and they must be taken into account, with any other factors. However, in the context of the PFHA a defence is not much more than a factor to be considered, although it may be a substantial factor.
If the court grants an interim order the respondent will be notified after the fact. They will also receive a copy of the order along with a record of any evidence noted by the court. The respondent will then be given an opportunity to convince the court not to make the order final. The interim order comes into effect as soon as it is brought to the attention of the perpetrator.
In terms of section 10 of the PFHA, a protection order, including an interim protection order, may prohibit the harasser from:
- engaging in or attempting to engage in harassment;
- enlisting the help of another person to engage in harassment; or
- committing any other act as specified in the protection order.
If the court deems it necessary, it may impose additional conditions on the harasser to ensure the safety or well-being of the complainant or a related person.
Tracking down the perpetrators
If the court decides to issue a protection order but the identity or address of the respondent is unknown, the PFHA provides for an instruction to be given to the station commander of the relevant police station to investigate the matter and find out the name and address of the respondent. The station commander must report to the court within a specified time period.
If the harassment took place electronically, the court may direct a service provider to provide details of the harasser’s identity and address. The service provider must do this within five days, but must also inform the harasser before it sends the information to the court.
When the court issues a protection order, including an interim protection order, it must simultaneously:
- authorise the issue of a warrant for the arrest of the respondent; and
- suspend the execution of that warrant subject to compliance with any prohibition, condition, obligation or order.
The suspended warrant must be delivered to a police station of the complainant’s choice. It remains in force unless the protection order expires, is set aside, or is cancelled after execution.
If the complainant and the harasser work together, the employer may incur responsibility if the harassment takes place at the office. The employer may also be obliged to take measures to ensure that the harasser is able to comply with the protection order. The employer may use the protection order as grounds for disciplinary action against the respondent if the action impacts on the employment relationship