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Minister of Justice and Constitutional Development Ronald Lamola urged members of the public to make meaningful contributions to the discussion document released by his department in June on amendments to whistle-blower protection legislation.

Lamola delivered the keynote address at a symposium on the topic, hosted by the Public Service Commission (PSC) on Friday.

In contributing, he added, the public should be guided by the values that are enshrined in the legacy of the late former president Nelson Mandela, whose birthday was celebrated earlier in the week. The encouragement and protection of whistle-blowers should be part of society’s living these values.

“In order to uphold these values, we must prioritise protecting those who speak out against wrongdoing. Whistle-blowers play a critical role in promoting accountability and transparency and we must ensure that they can do so without fear of retaliation,” Lamola said.

“We eagerly anticipate the contributions of society to create a society where morality and integrity are matched by enthusiasm for justice and not vengeance.”

The document was released at the end of June, with a 15 August deadline for submissions.

PDA inadequate for meaningful protection

The Protected Disclosures Act (PDA) is the current framework for the protection of whistle-blowers, but requires a review as stipulated in the final report of the state capture commission, as it lacks in scope and inclusivity. In the meantime, while the process unfolds, the minister pointed to what he called a conundrum that government finds itself in, of having to establish what to do regarding the protection of whistle-blowers in the interim.

“The question we’re currently grappling with is what happens in the interim, whilst we are reviewing the Act, whistle-blowers are being victimised now.

“The PDA only covers the employer-employee relationship and does not provide an easy process or extend protection beyond work-related issues. Additionally, it does not require confidentiality or provide financial and legal assistance to whistle-blowers.”

The PDA was pitted against similar pieces of legislation in several other countries both on the African continent and in other regions, as part of the justice department’s research. Its shortcomings were highlighted in the document as needing attention.

“It identifies gaps or weaknesses in the current system and compares the South African approach to that of other countries. These include broadening the definition of harm inflicted on employees by speaking up, strengthening confidentiality measures, and creating a reverse onus. According to the report, it is recommended that any provision in a contract that attempts to exclude the PDA should be prohibited.”

In May Lamola unveiled – during the parliamentary debate on his department’s budget – plans to create a dedicated fund to help whistle-blowers who land in financial difficulties because of their noble actions.

The PSC, which itself is poised for big changes to its mandate through the Public Service Commission Bill currently being discussed, will most likely in future have to manage an increased number of whistle-blowers. The bill proposes that the commission’s scope be broadened to include municipalities and public entities, and not just provincial and national departments, as has been the case since its establishment.