Whistle-blower Protection: Does South Africa Match Up? - Part I

The whistle-blower as lone voice

South Africa scored a dismal 43 out of 100 on the Corruption Perception Index for 2017 compiled by global anti-corruption organisation Transparency International, placing its rank at 71 out of 180 countries. While not the lowest score, it is far from any acceptable level. Many attempts to forge ahead, by growing the country’s GDP, reducing unemployment and pulling people out of poverty, are hindered by pervasive and entrenched corruption.

There are various mechanisms available to combat corrupt individuals and networks. Strong anti-corruption legislation; dedicated, well-resourced law enforcement agencies; and a functioning and capacitated system of courts all have important roles to play. Sometimes, though, the trigger that is needed to initiate the undoing of a corrupt scheme is for the lone voice of a person who has witnessed an unlawful act, to speak up and be heard.

Whistle-blowing means

“the disclosure of information related to corrupt, illegal, fraudulent or hazardous activities being committed in or by public or private sector organisations – which are of concern to or threaten the public interest – to individuals or entities believed to be able to effect action.”ⁱ

The old adage is that “sunlight is the best disinfectant”. The whistle-blower is at times the only person able to bring information regarding wrongful conduct into the light. Often, it is a role not of their choosing. Their position and circumstances thrust it upon them.

In shouldering this burden, there is little incentive for individuals to blow the whistle on wrongful conduct beyond a sense of moral rectitude. Only in rare cases are whistle-blowers rewarded with honours or pecuniary compensation for their troubles. More often than not, they undergo discrimination, attacks on their reputations, harassment, and in extreme cases, threats to their personal safety and that of people close to them. In some cases, a person who suspects wrongdoing reports it and, after investigation, is proved wrong, but then suffers harmful consequences for his or her good-faith actions. He or she may be taken to court for breaching confidentiality. Faced with such deterrents, it is little wonder that individuals are reluctant to report suspected wrongdoing.

As South Africa fights its ongoing battle against fraud and corruption in the public and private sectors, it is clear that anaemic protections will not suffice. South Africa needs strong, accessible whistle-blower protections with broad application to counter the significant disincentives and empower the lone voice to speak up.

So, how robust are South Africa’s laws in protecting whistle-blowers?

The international standard

In addition to generating the international corruption perception index, Transparency International has compiled of a set of best practice guidelines for whistle-blowing legislationⁱⁱ (“TI Guidelines”). The TI Guidelines follow from the publication of 30 International Principles for Whistleblower Legislation by Transparency International in 2013 (“International Principles”)ⁱⁱⁱ. The TI Guidelines give content to each of the International Principles by providing good practice examples of existing legislation from various jurisdictions.

The TI Guidelines were developed in collaboration with experts from Transparency International chapters in Australia, France, Ireland, Italy, Netherlands, and Slovakia who had successfully advocated for the adoption of legislation for the protection of whistle-blowers in their respective countries. The good practice examples cited come from a diverse array of jurisdictions, including Norway, New Zealand, Jamaica, Ghana, South Korea, Malta, and the United States of America.

Generally, the TI Guidelines recommend broad definitions and wide protections. Factors that might deter whistle-blowers from making disclosures – such as “good faith” requirements or insufficient confidentiality protections – should be avoided. The TI Guidelines prefer providing multiple avenues for whistle-blowing and accessible procedures that keep the whistle-blowers informed as to the progress of complaint investigations. Generally, the TI Guidelines propose generous protections with minimal burden on whistle-blowers. This is to provide the greatest amount of encouragement to whistle-blowers to report wrongdoing.

Transparency International notes that there is no whistle-blowing law that is fully aligned with its International Principles and each country’s requirements will be informed by its unique context. Nevertheless, any state committed to eradicating corruption would do well to aim to achieve these standards.

South African legislation

The Protected Disclosures Act^iv (“PDA”) is the primary legal mechanism enacted to address the lacuna that existed in South African common and statutory law with respect to whistle-blower protection.

The PDA is not the only legislation that concerns whistle-blowing activity. The Deputy Public Protector published a report^v in 2015 that collated whistle-blowing protections contained in various pieces of legislation. He noted that in addition to the PDA, there are provisions in the Companies Act^vi, Prevention and Combatting of Corrupt Activities Act^vii, the National Environmental Management Act^viii (“NEMA”), Protection from Harassment Act^ix, Witness Protection Act^x, and the Promotion of Access to Information Act^xi that may assist whistle-blowers. These provisions have limitations, however, and for the most part, whistle-blowers are likely to rely on the PDA when seeking protection.

The PDA has been in effect for 17 years. In that time, it has been amended only once, in 2017. The amendment was introduced to bring about crucial changes that increased the scope of the PDA, many of which will be highlighted in these briefs. These changes were long overdue and Parliament has advanced whistle-blowers’ protections. Nevertheless, 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 many crucial ways.

Does South Africa match up? The rest of this brief series will examine the PDA against the TI Guidelines in respect of a number of key themes, highlighting points of congruence and divergence and suggesting solutions where available.

The meaning of a “protected disclosure”

The TI Guidelines recommend a clear and wide definition of what requirements should be met for a disclosure to be protected. This is because if someone is doubtful whether the conduct they wish to report meets the definition or not, they may err towards remaining silent. Options that legislators can consider include:

• providing a list of categories of disclosure that are protected;

• making use of a general term, such as “threat or harm to the public interest”; or

• a hybrid of the above approaches.

The hybrid approach is considered good practice. It enhances clarity by specifying categories while retaining broadness of applicability. South Africa’s PDA, however, makes use of a closed list of what constitutes a “disclosure”. This list includes supplying information regarding conduct that would amount to:

• committing a criminal offence;

• failing to comply with a legal obligation;

• endangering of the health or safety of an individual;

• damaging of the environment;

• unfair discrimination; or

• the concealment of any such conduct listed above.

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. That said, the listed conduct listed is very broad in scope.

However, it is interesting to note that the TI Guidelines also recommend that the definition of a protected disclosure should not include any qualifying requirement that the disclosure be made in the public interest^xii. This may seem counter-intuitive, but whistle-blowers who are uncertain whether their disclosure is in the public interest or not may shy away from reporting. South Africa’s PDA fortunately does not include any such requirement.

The TI Guidelines suggest that the law should protect disclosures relating to wrongdoing that has already taken place as well as (for obvious reasons) that which is likely to be committed. The PDA refers to past, present and anticipated future conduct, which aligns with the recommendations in the TI Guidelines.

Another important recommendation is that protection should not be limited to disclosures regarding wrongdoing in the public sector. Misconduct in private sector institutions are also potentially harmful, such as where companies flout health and safety regulations resulting in the injury or death of employees. The PDA in numerous instances makes it very clear that private bodies can be the subject of a disclosure, including an express statement in the preamble of the Act. The definition of “employer” makes no distinction between employers in the public and private sectors. That whistle-blowers should be able to report wrongdoing by private persons is buttressed by provisions in, for example, the Companies Act and the NEMA.

Who should be protected?

The TI Guidelines are clear that protection should not be limited to “employees” in the traditional sense, but should extend to consultants, contractors, trainees, temporary workers, former employees, and even volunteers. The TI Guidelines also recommend that protection also be provided to people whose interaction goes only as far as applying for a job, contract or other funding. French law, on the other hand, makes this protection even wider by merely requiring that an individual become “personally aware” of the wrongdoing without requiring that this take place in context of their work.

While the PDA does not go that far, the PDA’s definition of employee includes “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, and the like. It does not, however, extend to applicants. This is concerning, 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.

This exact circumstance was considered in the United States, in the case of Vander Boegh v. EnergySolutions, Inc^xiii, which concerned an application by a landfill manager who had reported environmental law violations at his previous employer. He subsequently applied for another position as landfill manager. His application was rejected, which he alleged was as a result of his previous disclosures. The Court, however, could not even reach the question as to whether or not this was the case because the laws protecting whistle-blowers applied only to employees and not applicants.

That applicants can be denied opportunities based on past disclosures is clearly a real possibility. The definition of “occupational detriment” in the PDA includes conduct that adversely affects a whistle-blower in relation to employment opportunities. This would appear to contemplate applicants. But, as per the PDA, an applicant would not be able to argue that such detriment occurred if he or she is not already an “employee” or “worker” of the offending entity. The legislature should therefore extend the PDA’s protection to applicants in an express manner.

Whereas the PDA previously expressly excluded independent contractors from its protection, the 2017 amendment introduced the definition of “worker” that expressly includes them. This is a timely and important change: in RFS Administrators (Pty) Ltd and Another v NFMW And Others^xiv(“RFS Administrators”), one ground upon which Court refused whistle-blowers protection under the PDA was their status as independent contractors.

Protection means less if it is not extended to those who are associated with a disclosure. This can include people who provide supporting information or assist a whistle-blower. In addition, relatives and other persons close to the whistle-blower may also be at risk of negative repercussions in the context of their employment or even personal safety. The PDA limits protection only to “employees” and “workers” and so does not meet the international best practice recommendations in this regard. South Africa would do well to consider Serbian law^xv, which expressly includes persons that are connected to whistle-blowers and, commendably, even those who may be mistakenly perceived as whistle-blowers.

Conclusion

This brief has identified aspects in which South Africa’s PDA complies with international standards regarding protection granted to whistle-blowers – and aspects where it does not. Part II in this series will continue to compare the PDA against the TI Guidelines, highlighting provisions that should be considered for revision by the legislature.

Cherese Thakur

Legal Researcher

cherese@hsf.org.za