Whistle-blowers and their challenges and potential hardships have been in the news lately. Plans to amend the legislation governing their protection are in motion – though not at the urgent speed we would like to see. Civil society organisations, including Corruption Watch, have been asking for meaningful changes for years, and it is only with the release of the report of the Zondo commission and its recommendations on this matter that government seems to be taking it seriously.
For some, these long-awaited steps come too late.
Making the decision to step forward and blow the whistle on corruption takes a huge amount of courage, whether the motivation is selfish or selfless. The risks associated with whistle-blowing are daunting – victimisation, intimidation, harassment, occupational detriment, financial hardship, physical harm, even death.
Yet day after day, people do the right thing despite the risks. And for this, their lives are thrown into turmoil.
South Africa’s Protected Disclosures Act (PDA) has been touted for years as sufficient protection for employees against occupational detriment, provided they have made a protected disclosure. But the PDA does not fully cover the retaliation an employee may face outside of the workplace and the legal and costly entanglement whistleblowers may find themselves in.
Those accused of corruption will stoop to the deepest of depths to discourage whistle-blowers and avoid having to account for their actions. They will even use the law as a weapon – which may not be illegal, but is certainly underhanded.
A recent webinar explored this dastardly tactic in some detail. Hosted by Maverick Citizen editor Mark Heywood, with guests public interest attorney and information law expert Avani Singh, and Mthabisi Moyo, an anti-corruption academic and human resources expert.
‘The role of whistle-blowers is well recognised, including by the Zondo Commission and the president,” said Heywood. “Yet whistle-blowers experience many common forms of retaliation and suffer for exposing corruption. However, there are other ways the corrupt legally retaliate against whistle-blowers, that are costly, emotionally taxing and have led some to impoverishment.”
A document authored by attorney Chantelle de Sousa and issued in March 2023 by PLAAF, titled Occupational Detriment 101, unpacks many of the common forms of retaliation. These include, but are not limited to:
- Disciplinary action.
- Demotion, suspension, or dismissal.
- Harassment or intimidation.
- Arbitrary changes to terms of employment.
- Criminal charges which may or may not be related to the protected disclosure such as fraud/theft/money laundering.
- Claims for defamation as a result of the disclosure.
- Anton Pillar orders, which permit the inspection of the whistle-blower’s house or other related property and search and seizure of materials and documents of anyone present on the property.
- Claims for damages which may or may not be related to the protected disclosure such as damages relating to fraud or negligence in performance of duties.
- Claims for a delinquent director if the whistleblower was a registered director of the entity.
- Withholding the whistleblower’s pension fund pay-out.
- Being threatened with any of the above situations.
“The law is meant to be a pathway to justice, and is meant to prosecute crime,” said Heywood, “and yet what we’re hearing and what we’re going to talk about is the law being used as an instrument to perpetuate injustice and perhaps to cover up injustice.
“Corruption is the abuse of entrusted power for personal gain. It is a crime of calculation, not one of passion, and it thrives because it happens under the cover of darkness and not in the public eye,” Moyo said, giving examples of such wrongdoing from both the public and private sectors.
The probability of getting caught must accordingly be increased, he said, adding that the actions of whistle-blowers are “a deterrent to corruption as it increases the risk of getting caught and when it is fostered as a culture within organisations it then becomes costly in your calculations whether or not to engage in corruption”.
South Africa’s whistle-blower protection legislation has proven over the years to be flawed. The three main pieces of legislation are the Labour Relations Act, the Protected Disclosures Act (PDA), and the Companies Act (section 159). However, there are glaring gaps in these laws which ultimately work to the detriment of the whistle-blower.
The PDA, as is often commented on, only provides protection for employees in the workplace, whether public or private. It does not extend to situations where a person has reported out of the workplace context, nor does it provide protection for their families or communities.
“PDA protection is limited to those within the organisational setup,” said Moyo. “In the unfortunate event of a witness’s death, at times the family members, friends, extended relatives, or whoever was within the close circle of that person will have the information that was disclosed to them, but they will not be deemed protected under the PDA, or any of the legislations that we have.”
The remedy in terms of the PDA is also flawed, he said – when a whistle-blower goes through the retaliation cycle they do not lose just a job. “They suffer psychological harm, loss to family structures, mental health issues, financially induced losses, which are outside of an employment contract relationship. When you get your job back, you only get a meagre compensation in the form of six to 12 months’ salary, whereas you’ve lost much more than that.”
Moyo described the typical retaliatory cycle against whistle-blowers. “Initially when the whistle is blown, management’s first step is to nullify the concern raised. The whistle-blower is then forced to backtrack on their claims and will be subjected to performance reviews – despite the existence of the PDA which calls for the investigation and reporting back of a concern once received.”
Secondly, they are isolated from their peers through forced unilateral transfers to different departments, which are not likely to be in line with the organisational restructuring policies. When this happens the whistle-blower is demotivated and may not continue with the complaint.
“Thirdly, the whistle-blower is defamed through the distortion of events and false allegations of misconduct. And then once those allegations are enforced, the whistleblower is charged, leading to the fourth step, which is dismissal from the employer.”
But this is not the worst of it – using the very justice system that is supposed to bring relief to whistle-blowers to act against them, is commonplace. It is callousness of the highest order.
Using the law to perpetuate wrongdoing
“On the one hand, we’re seeing the law being weaponised through abuse of process, through lengthy delays,” said Singh. “Instead of being the tool for social change and justice, it has been become the tool to avoid accountability. And coupled with that, we are seeing the profession, courts, the legal framework, not responding adequately or even quickly enough to actually address the misuse of this process.”
There are several factors to consider, she said. “First is the current legal framework that we’re dealing with it – we know that the law is failing. Second is the nature in which court proceedings in general create difficulties for litigants across the board. The third aspect is quite specifically the way in which the law is failing whistle-blowers, exacerbating the challenges, and really making it an impermissible space where people are scared and concerned about coming forward because of the retaliation that they’re facing.”
Litigation by its very nature is lengthy and expensive, and takes an emotional toll, she added. “Victory can feel quite Pyrrhic – you sometimes doubt whether you made the right decision, even if it was in the interest of justice.”
When the legal system is used as a weapon against whistle-blowers, it becomes a distraction, taking attention away from what is being revealed.
“Furthermore, it is used to intimidate not just the individual who’s come forward, but more broadly, it’s used to intimidate other people who may consider coming forward.”
Legal practitioners owe a duty to the courts, Singh said, and the primary duty is their contribution to the work of the judicial system in the administration of justice. “Representing your clients with zeal, putting your best case forward, is critical to the role that we play as legal practitioners.”
In that context, legal professionals have specific duties to conduct themselves in a manner that helps the court reach the correct outcome.
Yet, she said, there are those in the profession who use the law to obviate any means of justice. “The members of the profession also owe a measure of accountability and I think that deserves a very serious conversation and self-reflection.”
Recourse for victims of legal process abuse
“The weaponisation of law … couldn’t happen if lawyers were not abusing process,” agreed Heywood. “So what do we do about that?”
“There are a number of ways in which that could be addressed,” said Singh, “one of them being the use of the Legal Practice Council and professional bodies – that requires will on their part to take claims seriously and move them forward, but it is one option that’s available.”
The court also has an obligation to control court processes, she added.
Singh stood up for litigants who are not familiar with the processes of the law and whose cases are dismissed on a technicality. “This starts to hinder the application of the law as opposed to helping it, because it cannot be that the obligation [to comply with the process] rests solely on an individual who perhaps has no legal background or training, who has perhaps has no access to readily available legal resources. That, for me, is absolutely unacceptable.”
However, it could be that courts are overburdened by cases and have serious resource constraints, said SIngh. “The fact that they are inundated with these kinds of cases doesn’t necessarily mean that we’re getting the best judgments, the most considered judgments.”
In closing, Moyo said that whistle-blowers should think carefully before coming forward, and consider their situation from all angles. “Does my organisational culture allow for whistle-blowing? If it’s a positive culture, by all means do it. But if it’s a culture that retaliates against employees, then you might need to consider external channels instead of just keeping quiet.”
There should be more focus on “nipping corruption in the bud”, he said. “We need to increase the cost of engaging in corruption by arresting people and getting big people into prison.”