Any changes to the whistle-blower protection legislative regime have to acknowledge whistle-blowers as the focal point, and the objective to ensure their broadest possible protection should be a foundational principle of the legislation and the starting point for the drafting of any definitions.
This is the submission by Corruption Watch to a discussion paper proposing changes to whistle-blower legislation. The organisation is among those that responded to the proposed changes designed by the Department of Justice (DoJ), by the deadline of 15 August 2023.
These proposed changes follow the state capture commission’s recommendation, contained in its report released in 2022, that legislation on whistle-blowers be amended to provide increased protection. Several of the commission’s witnesses made a special plea to chairperson Chief Justice Raymond Zondo for such, stating that many in the public and private sector have suffered severe detriment due to their decision to blow the whistle on corruption.
In his recommendation, Zondo said that government should take guidance from the UN Convention Against Corruption in seeking ways to enhance existing laws in this regard. Responding to the recommendation in October last year, President Cyril Ramaphosa hinted the next step towards amending legislation for whistle-blowers: “The commission identified whistle-blowing as an essential weapon in the fight against corruption. The actions of whistle-blowers have played a vital role in exposing many of the activities that were part of state capture. Whistle-blowers need to be encouraged to report instances of fraud and corruption and need to be protected from victimisation, prejudice or harm,” he said.
He mentioned that the DoJ would embark on the task of reviewing both the Protected Disclosures Act (PDA) as well as the Witness Protection Act in the interest of enhancing their provisions for whistle-blowers’ protection. In June this year, the department made its research on the topic public, calling for submissions in response to a discussion document.
Drawing on an extensive body of work
Corruption Watch did not miss a beat in getting to work developing its submission. Over the years since the organisation’s inception in 2012, it has received close to 40 000 whistle-blower reports, and for many of the people who reported, the consequences of doing so have been less than desirable.
The organisation has also followed cases of higher profile whistle-blowers who have suffered financial detriment, have been publicly ridiculed, and in one of the worst case scenarios of recent times, killed like former Gauteng Department of Health senior official Babita Deokaran.
On the Corruption Watch board sits one of South Africa’s most high profile whistle-blowers, Themba Maseko, who was systemically removed from government after serving as cabinet spokesperson and head of the government communication and information system (GCIS). He was one of the first witnesses to testify before the state capture commission, telling Zondo of the direct consequence of his defiance of former president Jacob Zuma and Zuma’s close associates, the Guptas, when the latter wanted to take over the GCIS print advertising programme to their newly established New Age newspaper in 2010.
Maseko refused to let this happen, and it is his belief that he was removed from the GCIS and moved to the Department of Public Service and Administration for that reason.
Societal perception shift is needed
Corruption Watch submits: “There needs to be a societal shift in the perception of whistle-blowing, so that it is framed in such a way that it is correctly understood as a noble civic duty and not an act of betrayal. This will ensure whistle-blower safety and create a more positive culture around whistle-blowing.
“The legislative regime put in place to facilitate protected disclosures and protect whistle-blowers has a direct bearing on the protection, promotion, and fulfilment of constitutional rights, and the compliance with South Africa’s international human rights obligations.”
In this respect, and following on its own research through a 2020 online public perceptions survey on whistle-blowing, CW recommended in general terms that:
- The PDA’s provision for whistle-blowers be opened up to include all persons wishing to make disclosures, and not only those who do it in the context of the work environment.
- An agency be established that is in line with proposals contained in the National Anti-Corruption Strategy, to advise and support whistle-blowers.
- There be a public education drive on whistle-blowing and its merits and dangers, to de-stigmatise the practice.
- Government allocate money from the Criminal Assets Recovery Fund to help support whistle-blowers who are seeking legal, security and mental support.
- Sanctions be established for those who intimidate or threaten whistle-blowers.
The organisation recognises that this remains a wish list, of course, unless clear decisive legislative changes are made.
Executive director Karam Singh had this to say in response to the release of the document: “It has been highlighted that while the PDA is well intended, it is deficient in many important respects. It was found in the Zondo Commission that the PDA does not provide a clear-cut procedure for the whistle-blower to follow when blowing the whistle and it does not sufficiently guarantee that the disclosures will be protected.”
Addressing the shortcomings of current legislation
The DoJ’s discussion document plays the role of leading the legislative change. It addresses the shortcomings of the current regime, listed as 15 pieces of legislation that govern one aspect or other of whistle-blower protection. It also draws from the legislation of several jurisdictions across the globe, and proposes borrowing from those to help adjust local laws.
CW’s own submission acknowledges the efforts made in this regard, but also cautions against making surface changes to elements of the PDA – such as definitions – that have substantial impact in meaning for whistle-blowers. “The proposed changes go to the heart of the whistle-blower regime in South Africa and will fundamentally change the objectives and focus of the legislation … it is not a minor change to the legislated landscape, but a fundamental shift in approach.
“Corruption Watch would support the repeal of the Protected Disclosures Act to make way for a new piece of legislation to be titled ‘Whistle-blower Protection Act’. Whistle-blowers have thus far operated largely in the shadows and have been stigmatised in South Africa, receiving little to no recognition for their courageous actions. In order to shift the public perception of whistle-blowers in South Africa, it is important to identify, at the outset and in the Act title, that whistle-blowers are the focus of the legislation.”
Furthermore, the legislation should also include in its definition of people needing protection and support, those who associate with the whistle-blower by assisting or supporting them in their endeavour.
“Corruption Watch submits that family members and those who assist whistle-blowers ought to be protected from detrimental action. In Corruption Watch’s experience those who are close to whistle-blowers are frequently targeted, either simply on account of their association to the whistle-blower or on account of any assistance or encouragement provided to a whistle-blower.”
