It may have taken the state capture commission and its recommendations for us to get here, but government is finally taking stock of the many public submissions from whistle-blowers, whistle-blower advocacy organisations, and civil society organisations in amending our whistle-blower protection regime. The Department of Justice and Constitutional Development has released a discussion paper for public input, with a deadline of 15 August for submissions.

Only time will tell if the final changes to the legislation will provide for a robust approach in protecting and supporting whistle-blowers, but the Department of Justice has for now placed the ball in the court of South Africans and asked for input.

Corruption Watch executive director Karam Singh says it has taken so long for the department to come to the party, that he would have expected a white paper at this late stage, as opposed to a mere discussion paper. Nevertheless, he commended the department for the public consultation approach.

“We’re cautiously optimistic that this paper will lead to a revised piece of legislation and an enhanced whistle-blower protection system, including the creation of a fund and the creation of a system which provides dedicated physical protection to whistle-blowers,” he said.

PDA limitations unaddressed until now

The 105-page discussion document released by the department on Thursday last week explores the current regime, listed as 15 pieces of legislation that govern one aspect or other of whistle-blower protection in the South African context. For many years the civil society sector has acknowledged the existence of these laws, but decried their fragmented nature as it relates to implementation and their implication for the typical whistle-blower once a disclosure of corruption, fraud or other abuses of public resources is made.

The Protected Disclosures Act (PDA) – the key legislation guiding the process – though well intended in its nature, has long been seen as limited in its approach, as is acknowledged in the document.

“It has been highlighted that while the PDA is well intended, it is deficient in many important respects. It was found that in the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud into the Public Sector Including Organs of State (the Zondo Commission), 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.

“Furthermore, it is not pro-active in providing physical protection, it offers no incentives to the whistle-blower, and it does not ensure that all such information finds its way to a destination with specialised skills in receiving, investigating, and utilising such information effectively.”

Witness Protection Act not much better

In essence, the PDA has inadvertently relied on the Witness Protection Act’s (WPA) provisions in terms of the protection aspect of the whistle-blowing process, but the latter’s own flaws have in the past exposed whistle-blowers to victimisation, harassment, and even threats to security and wellbeing.

Law enforcement agencies have had a tough time in protecting and equipping whistle-blowers in the critical stages of criminal investigations, for example. It is this unpacking of what protection entails that appears to have lawmakers across the globe baffled, if the comparative research of international laws by the department is anything to go by.

While some jurisdictions such as the US and the UK make serious attempts in line with protecting whistle-blowers from retaliation, it is mainly in the context of the working environment. The exception to the rule appears to be New Zealand, whose scope of protection is wider than in the employer-employee context.

“The scope of protection under the PDA NZ includes former employees, homeworkers, seconded employees, contract employees, management employees, members of the defence force and armed forces, and volunteer workers, who are employed by public and private organisations with one or more employees. As such, the PDA NZ offers a wider range of protection to a broader section of the workforce.”

PDA scope to be potentially widened

Even then, is it enough? Civil society organisations including Corruption Watch have long called for the PDA’s scope to be widened so as to include any member of the public who wishes to make a disclosure. To this extent, the discussion document acknowledges this, and includes the recommendation amongst its proposed changes to the legislation.

“It is proposed that the definition of occupational detriment is expanded to include persons which are not employees but who have disclosed in terms of the PDA. It is important to point out that should this proposal be approved the phrase ‘occupational detriment’ should be changed to ‘detrimental action’ or improper conduct to remove any confusion the word ‘occupational’ might bring.”

Consideration should also be given to inclusion of detrimental action by fellow employees, the discussion document notes. “Incidental to this, there will be a need for an additional definition of who is a ‘discloser’ which must not be limited to employee and worker. This will also require provisions that will exclude certain disclosures, such as those relating to national security, etc.”

The impact of this, the authors of the document offer, is that protection offered by the PDA would be widened to included people that are not in the employer and employee relationship only.

Other proposed changes

Several other proposed changes, which include new sections to the PDA as well as amendments to existing provisions, are included for consideration:

  • Anonymous disclosures that ensure the protection of whistle-blowers.
  • Creation of a fund for whistle-blowers.
  • The receiver of a disclosure is obligated to conceal the identity of the discloser, for their own protection.
  • Make it a criminal offence for any person to cause detrimental action against a whistle-blower as a result of their disclosure.
  • The burden of proof must lie with the person who causes detrimental action to a disclosure that the action has no relation to the disclosure.
  • In the context of the work environment, the PDA must override any clause in agreements of non-disclosure if they bar an employee from exposing wrongdoing.
  • The period of acknowledgement of disclosure be shortened to three months, and include written confirmation to the whistle-blower on whether the receiver will or will not pursue an investigation.
  • In respect of a matter of detrimental action finding its way to the tribunal or Labour Court, an added provision to the current ones should be “payment of interim legal costs by the employer or client where the employee seeks recourse through the courts to adjudicate their rights, where the prospects of success are in favour of the employee or worker”.
  • In order to hold institutions receiving protected disclosures accountable, provision should be made for criminal liability for not taking action on a disclosure made in good faith.
  • A whistle-blower who has reasonable grounds for believing that a detrimental action has been taken against him or her may file a complaint in a prescribed form or designate another person to do so. The complaint must be filed within 60 days of discovery of this detrimental action to the South African Human Rights Commission (SAHRC). There are further provisions for steps that can be taken by the commission in this regard.
  • Whistle-blowers may receive legal aid in cases where the need for legal proceedings may arise, at the discretion of the minister of justice , who may provide the relevant certificate in this regard, at his discretion, for Legal Aid South Africa to consider.
  • Employers to appoint whistle-blower champions as a proactive measure to provide for the strengthening of the PDA.
  • Consideration made to changes to the WPA to include a whistle-blower in the definition of a witness.

Where the document falls significantly short is in the consideration of the area of support for whistle-blowers. Several civil society organisations have often called for a well-structured approach for providing mental, emotional, and financial support for whistle-blowers and members of their immediate families who are also impacted by the detrimental effects in the period following the whistle-blowing.

Singh’s take on the proposal to expand the SAHRC’s mandate in regards to whistle-blowers is that the commission has not proven itself to be efficiently managing the handling of complaints, and that its “patchy record” gives pause for how it will do in the future.