Whistle-blowers are the lifeblood of Corruption Watch. Our work is driven by the reports we receive from whistle-blowers, and the information they provide assists us in developing targeted campaigns, submissions on pertinent legislative amendments or to relevant panels of inquiry, policy documents, investigations, and more.
Around the world, whistle-blowers are protected to a greater or lesser degree by existing legislation. In South Africa, the laws exist but their implantation is erratic, at best – and an analysis by the Helen Suzman Foundation (HSF) has found that they do not, in fact, match up to international standards in all respects.
Our new two-part mini-series is based on the HSF findings and recommendations regarding domestic whistle-blower protective legislation. Part one interrogates the legislation and part two looks at conclusions and recommendations that would address the gaps.
The fact that our laws are not up to international scratch should be a concern for all, because the fight against corruption relies heavily on the courage of whistle-blowers to expose it in the first place, and when these brave souls experience victimisation, intimidation or worse for doing a good deed, others are hesitant to come forward.
This is even more significant when we realise that the whistle-blower is often the only factor standing between exposure of the culprit and the crime, and the culprit walking off with the spoils.
“Often, it is a role not of their choosing,” says HSF. “Their position and circumstances thrust it upon them.”
Furthermore, the only reward the whistle-blower is likely to receive is harassment victimisation, threats, and worse. In some cases the safety of their families is threatened too. This is hardly an incentive for a whistle-blower to step forward.
It is clear, says HSF, that protection for whistle-blowers must be strong and accessible, “with broad application to counter the significant disincentives and empower the lone voice to speak up”.
The international standard
In 2016, Transparency International (TI) published a document setting out best practice guidelines for whistle-blowing legislation. The TI guidelines follow from the 2013 publication of International Principles for Whistle-blower Legislation, and they give content to each of the principles by providing good practice examples of existing legislation from various jurisdictions, including Norway, New Zealand, Jamaica, Ghana, South Korea, Malta, and the US.
TI notes that no whistle-blowing laws are fully aligned with its international principles – but any country that commits to eradicating corruption would do well to aim to achieve these standards.
Generally, the TI guidelines recommend broad definitions and wide protections, with minimal burden on whistle-blowers. Factors that might deter whistle-blowers from making disclosures – such as “good faith” requirements or insufficient confidentiality protections – should be avoided. This is to provide the greatest amount of encouragement to whistle-blowers to report wrongdoing.
South African legislation
South African whistle-blowers are primarily protected by the Protected Disclosures Act(PDA) – however, the PDA only applies to employees. The law was amended in 2017 for the first time in 17 years, and amendments to the PDA include:
- Extending protection to non-permanent employees and workers;
- Providing civil and criminal protection;
- Increasing legal obligations on employers to keep whistle-blowers informed; and
- Extending the bodies to which people can make protected disclosures.
Other legislation is relevant to whistle-blower protection, such as provisions in the Companies Act, Prevention and Combating of Corrupt Activities Act, the National Environmental Management Act, Protection from Harassment Act, Witness Protection Act, and the Promotion of Access to Information Act.
These provisions have limitations, however, and for the most part, whistle-blowers are likely to rely on the PDA when seeking protection. However, HSF notes, despite the expanded protections in the PDA following from the 2017 amendment, the PDA still falls short of the standard set in international guidelines in a number of crucial ways.
PDA vs TI guidelines
The TI Guidelines recommend a clear and wide definition of what requirements should be met for a disclosure to be protected, because this is itself may be a deterrent if a potential whistle-blower is not sure that their disclosure will qualify for protection – they would not want to expose themselves to risk for nothing.
One of the shortcomings of our PDA is its list of what constitutes a disclosure. International best practice is considered to be a combination of providing a list of categories of disclosure that are protected, as well as including a general term, such as “threat or harm to the public interest”. This ensures a broad range of applicability. The PDA, meanwhile, limits itself to a closed list of what constitutes a disclosure.
“The PDA therefore falls short of international best practice standards by specifying conduct, without making use of a general, catch-all threat of harm to the public interest,” HSF determines. “That said, the listed conduct listed is very broad in scope.”
Worryingly, the PDA does not contain any specific provisions relating to confidentiality, although the TI guidelines state that “one of the most efficient ways to prevent retribution against a whistle-blower is to ensure that potential retaliators do not know [the whistle-blower’s] identity”. Confidentiality should extend not just to the whistle-blower’s name, but also to any “identifying information” that may apply to him or her. Good practice requires the whistle-blower’s express consent for the disclosure of his or her information.
However, the lack of such a mechanism in the PDA means that whistle-blowers are not protected from the possibility of harm as a result of their identity becoming known. “The lack of a confidentiality regime for whistle-blowers is a significant omission in the Act and should be addressed by the legislature with some urgency,” says HSF
Protection should extend further in PDA
One area where our PDA does align with the TI guidelines is in not stipulating that the disclosure only be made in the public interest, in order to qualify for protection. Again, this eliminates confusion which might deter a potential whistle-blower. Also, both the TI guidelines and the PDA provide for protected disclosures referring to past deeds as well as those which are likely to occur.
The TI guidelines recommend that protected disclosures should not be limited to the public sector, and indeed, our PDA makes no distinction between employers in the public and private sectors.
Where it does differ from the TI guidelines is in the extent of protection. The guidelines are clear that protection should extend to consultants, contractors, trainees, temporary workers, former employees, and even volunteers – rather than simply employees in the strict sense of the world. The guidelines also recommend the inclusion of people whose interaction goes only as far as applying for a job, contract or other funding.
The PDA defines ‘employee’ as “any other person who in any manner assists or assisted in carrying on or conducting or conducted the business of an employer”. This would include consultants, volunteers, etc., but not applicants. This is concerning, says HSF, as a whistle-blower may, when applying for future employment or opportunities, be regarded as “tainted” due to their prior disclosures at a previous organisation and have their application refused – but they will have no recourse because applicants are excluded.
Even if the applicant turned to the provision regarding ‘occupational detriment’ that adversely affects a whistle-blower in relation to employment opportunities, they would still be faced with the situation that as they were not an employee, they could not suffer detriment as the PDA views it. The legislature should therefore expressly extend the PDA’s protection to applicants.
Protection should also be extended to those associated with the disclosure, including those who provide supporting information or assist the whistle-blower. In addition, relatives and other persons close to the whistle-blower may also be at risk, but the PDA limits protection only to “employees” and “workers” and so does not meet the international best practice recommendations in this regard.
Part two of our mini-series will examine recommendations and conclusions. For a more detailed analysis, read the HSF’s four-part brief on South African whistle-blower legislation.