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

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

Cherese Thakur | Jul 19, 2018
This brief is the third in a four part series. The first two briefs consider South Africa's legislative provisions for the protection of whistle blowers against Transparency International's Best Practice Guidelines for Whistleblowing Legislation ("TI Guidelines"). The third and fourth briefs discuss procedures and systems which can be used to ensure that those who report wrongdoing are shielded from needless detriment.

Disclosure procedures

Internal reporting mechanisms

A coherent, stringently observed process for the reporting and investigation of wrongdoing is a powerful tool against infringement of whistle-blowers’ rights. The TI Guidelines highlight the importance of whistle-blowers having trust in the reporting mechanism and feeling comfortable enough to make use of it. There are generally three avenues to report wrongdoing: at work, to relevant authorities, or to external parties (a public disclosure). Whistle-blowers should be made aware of what avenues are open to them, and what requirements must be met when making the disclosure for protection to apply.

The TI Guidelines cite studies that show that most whistle-blowers turn to internal reporting mechanisms at first. This is good reason to require (or strongly encourage) organisations to put in place effective internal reporting mechanisms. And this is exactly what the PDA prescribes, but in a manner that is unlikely to be effective or enforceable.

Section 2(a) of the PDA places an obligation on every employer to “authorise appropriate internal procedures for receiving and dealing with information about improprieties” and “take reasonable steps to bring the internal procedures to the attention of every employer and worker”. It is highly doubtful that all employers comply with this – particularly as the PDA does not prescribe a penalty for failing to do so.

Further, the provision is a somewhat blunt instrument that places obligations on large corporations and small organisations alike. It would be unduly onerous on employers with very few staff to implement whistle-blower procedures. A more reasonable approach would be to make use of a threshold, such as requiring employers with over a certain number of employees to put in place such a mechanism. This approach is adopted in France, the Netherlands, and Slovakia. A penalty, such a fine, can be imposed on those who do not comply.

Components of whistle-blowing mechanisms

Transparency International suggests that the following four components are essential for internal whistle-blowing mechanisms:

  • promotion and training for all staff, including special training to managers and those tasked with implementing whistle-blowing policies;

  • confidential or anonymous channels;

  • an effective response system; and

  • robust user protection.

Providing confidential or anonymous channels is particularly important in South Africa as the PDA does not protect whistle-blowers’ confidentialityi. Practically, ensuring confidentiality can take the form of making use of independent third-party whistle-blowing services, anonymous reporting boxes to receive written submissions, or telephone hotlines.

An effective response system ensures thorough, timely and independent investigations of whistle-blowers’ disclosures. The TI Guidelines recommend that whistle-blowers should be informed as to the progress and outcome of the investigation and be given opportunities to participate where appropriate. They might also be able to comment on the outcome or report following an investigation.

Section 3B was inserted into the PDA in 2017. It sets out in detail the procedure to be followed once a disclosure has been made, including – commendably - time frames. It makes provision for the whistle-blower to be informed at various stages of the process.

An important provision in section 3B states that if the disclosure could be investigated or dealt with more appropriately by another person or body, the person initially receiving the disclosure must refer the disclosure to that person. This provision has a two-fold benefit: it takes the burden off the whistle-blower to find the right forum for his or her disclosure and also facilitates reporting of the disclosure to the person best placed to take appropriate action. This amendment is a step forward for whistle-blower protection.

In providing “robust user protection” to whistle-blowers, the TI Guidelines state that best practice is for:

legislation to require employing organisations to have internal procedures for ensuring protection not only against retaliation, but also support for whistle-blowers, prior to retaliation occurring”.

One way to do this is to place a positive obligation on organisations to take steps to protect whistle-blowers, with a corresponding sanction if they fail to do so. Best practice, according to the TI Guidelines, is to give whistle-blowers a right to compensation not only where he or she suffers an occupational detriment, but also where the employer fails to meet an obligation to protect the whistle-blower from unfair treatment.

The PDA’s protection against anticipated retaliatory attacks appears to exist only in the definition of “occupational detriment”, which states that a threat by the employer to commit any of the listed detriments (such as dismissal, refusal of promotion, etc) is itself an occupational detriment. Therefore, if a threat is made, the whistle-blower is entitled to seek the same remedies as if a detriment had already occurred. This form of protection does not go far enough in terms of the TI Guidelines, in that there is no requirement for the employer to actively take steps to prevent harm to the whistle-blower. A more robust protection would be to place an express obligation on employers to protect whistle-blowers against retaliatory actions, with a provision made for compensation if this is not done adequately.

External reporting

If internal reporting is not effective, a whistle-blower should have the option to approach an external authority with their disclosure. The TI Guidelines recommend that there be no requirement for whistle-blowers to report wrongdoing internally before turning to the authorities.

Under the PDA, a whistle-blower is entitled to report wrongdoing to certain external authorities such as a member of Cabinet or a provincial Executive Council (in limited circumstances) or to other specified persons or bodies (such as the Public Protector) without having reported to his or her employer first. However, “general” disclosures to the public are only protected if the whistle-blower can show reasons why he or she cannot disclose to an employer – such as a belief that the employer will cover up the wrongdoing. This is subject to a caveat: a whistle-blower can report to the public without having to show reasons why he or she did not report to the employer first, if the impropriety alleged is of an “exceptionally serious nature”.ii

The TI Guidelines support such a caveat, relying on the principle that

In cases of urgent or grave public or personal danger, or persistently unaddressed wrongdoing that could affect the public interest, individuals shall be protected for disclosures made to external parties such as the media, civil society organisations, legal associations, trade unions, or business/professional organisations”.

This acknowledges that not all wrongdoing can be solved behind closed doors. At times, the only way to resolve an issue is to ventilate it fully in public. This can be done, for instance, in cases where the disclosure relates to matters that are politically sensitive or involve large amounts of money. Whistle-blowers should be able to report wrongdoing to bodies such as trade unions, to civil society organisations, or the media. However, such reporting does come with risks – if, for instance, it is shown that the disclosure was unfounded, the subject of the disclosure may have already suffered reputational damage. Therefore, to impose some restrictions on such reporting is a reasonable approach.iii

Matters of national security or state secrets

What should happen when the disclosure concerns a matter of national security or is classified? Disclosure of such information can have serious implications for the whistle-blowers. The TI Guidelines note that such disclosures are among the most contentious areas of whistle-blowing and comes with the most severe retaliation – “not only do [whistle-blowers] lose their jobs, they face criminal investigations, prosecutions and harsh sentencing”.

The principle adopted by the TI Guidelines is that in such cases:

  • Special procedures and safeguards for reporting that take into account the sensitive nature of the subject matter may be adopted in order to promote successful internal follow-up and resolution and to prevent unnecessary external exposure;

  • Such procedures should permit internal disclosures, disclosures to an autonomous oversight body that is independent of the security sector, or disclosures to authorities with the appropriate security clearance; and

  • External disclosure would be justified in demonstrable cases of urgent or grave threats to the public, if internal disclosure could lead to personal harm or the destruction of evidence, and if the disclosure was not intended to likely to significantly harm national security or individuals.

A recommendation from the Council of Europe is that a special scheme can be created in relation to information that concerns national security, defence, intelligence, public order, or international relations. Whistle-blowers would then be empowered to report wrongdoing through this scheme and receive protection.

It is important that the type of disclosure that is subject to the special regime be defined narrowly and clearly. In 2013, a set of Global Principles on National Security and the Right to Information were finalised in Tshwaneiv. These “Tshwane Principles” recommend firstly that organisations that deal with national security and official secrets should be obliged to put internal procedures in place and designate persons within those organisations to receive disclosures. Special considerations should apply, such as ensuring that the persons dealing with information received are authorised to handle classified information and have adequate powers and mandate to investigate the disclosure.

In addition to recommending conditions that should apply in respect to disclosures to the public relating to information concerning national security, the Tshwane Principles also suggest that the law should provide for a public interest defence that can be invoked by whistle-blowers who make disclosures that are not protected and who are facing sanctions in criminal, civil, or administrative forums. This would involve considering whether the public interest in disclosure outweighs the public interest in non-disclosure.

The PDA contains no provisions in respect of this special category of information. The law currently in place concerning the disclosure of information relating to national security is the Protection of Information Actv. This law prohibits the disclosure of certain information which relates generally to state secrets, unless such disclosure is to a person “to whom he is authorised to disclose, to whom it may lawfully be disclosed or to whom, in the interests of the Republic, it is his duty to disclose it”. It is assumed that a disclosure under the PDA will constitute a lawful disclosure and is therefore not prohibited by the Protection of Information Act.

It is intended that the Protection of Information Act will be repealed by the Protection of State Information Bill (“Bill”) once (or if) it is signed into law by the President. The legislative process in respect of Bill was highly fraught, with many critics pointing out that it did not adequately protect whistle-blowers. The Bill was amended to exclude disclosures protected under the PDA and other laws from the offence of unlawful disclosure of classified information. Despite this, the Bill in its current form has still been heavily criticised for not adequately protecting whistle-blowers.vi It has been over five years since the Bill was passed, with no sign of it being signed into law by the President. Whether the Bill will be passed in its current or amended form (and the constitutionality of doing so, given the time that has passed) is made even more unclear following the resignation of former President Zuma, under whose watch the legislation was crafted, and the instalment of President Ramaphosa.

If the President declines to sign the Bill and instead sends it back to the legislature for reconsideration, this would be the ideal opportunity to redraft it to include clear public interest protections in respect of disclosures relating to state secrets. In addition, provision could be made for a special regime for the disclosure of reports of wrongdoing in line with the Tshwane Principles.

Conclusion

This part of the brief series considered procedural aspects of whistle-blower protections. While clear and relatively simple procedures do much in ensuring that whistle-blowers’ disclosures are received by the suitable authority and are dealt with properly, it is important to remember that a one-size-fits-all approach is not always appropriate. This is illustrated by the need for a special regime to apply with regard to disclosures concerning state secrets or matters of national importance.

Part IV will consider further procedural issues such as investigation of disclosures and remedies, as well as whether the legislative structures used for whistle-blower protections in South Africa are designed so as to best serve their intended purpose.

Cherese Thakur

Legal Researcher

cherese@hsf.org.za

i This is discussed further in Part II of this brief series.

ii In Tshishonga v Minister of Justice and Constitutional Development and Another [2006] ZALC 104, the Court stated at paragraph 197 that for the purposes of section 9(2), “[a]llegations of corruption against a Minister is an exceptionally serious matter, irrespective of the amounts involved”.

The case of Malan v Johannesburg Philharmonic Orchestra [2013] ZALAC 24 considers whether a disclosure made was “serious”, eventually stating the following at paragraph 38:

The requirement that the impropriety should be serious is an important requirement. One must bear in mind that the PDA should not be interpreted in a manner which would result in the victimisation of the employers. For whistle blowers to receive protection, it is necessary that the impropriety that they disclose be serious and not simply reveal alleged breaches of contract when there is no evidence that those who are allegedly the victims of the breaches have taken any action about it.

 

iii As discussed in Part II of this brief series, however, the PDA’s requirement that whistle-blowers should not stand to gain from their disclosure is not reasonable and should be removed.

iv A copy of the Tshwane Principles can be accessed at https://www.opensocietyfoundations.org/sites/default/files/global-principles-national-security-10232013.pdf (accessed on 15 June 2018).

v 84 of 1982.

vi See, for example, K Premhid “POSIB: President urged to act” accessed at https://hsf.org.za/publications/hsf-briefs/posib-president-urged-to-act on 15 June 2018, Corruption Watch “Secrecy Bill passed by Parliament” accessed at http://www.corruptionwatch.org.za/secrecy-bill-passed-by-parliament/ on 15 June 2018, V Harris “What is still wrong with the Protection of State Information Bill” accessed at https://www.nelsonmandela.org/news/entry/what-is-still-wrong-with-the-protection-of-state-information-bill on 15 June 2018.