Whistle-blowers: call for backup
Unisa professor asks for stronger legal protection
President Cyril Ramaphosa has been pondering greater protection for whistle-blowers for a while. He concluded his 2021 Zondo commission testimony by admitting they “have not had a great time in our country” and tighter legislation was needed.
After the murder four months later of Gauteng health department official Babita Deokaran, who had reported a surge in spending at Tembisa Hospital and called for an investigation, he said: “We need to tighten up existing [whistleblowing] systems and provide greater support to those who publicly come forward with information.”
This remained his promise when he delivered the state of the nation address last month. “We will introduce amendments to the Protected Disclosures Act and Witness Protection Act to strengthen protection for whistleblowers,” he said.
Since one of the nicknames Ramaphosa has acquired in office is “Piet Promises”, scepticism could be forgiven. The good news is that someone else has done the thinking for him on this topic, and she has just published her conclusions in the Journal of African Law.
Rehana Cassim, professor of company law at Unisa, believes tinkering with existing legislation will be insufficient to deal with “the distressing levels of corporate corruption, the low reporting rates of wrongdoing and the widespread victimisation of whistle-blowers”.
Instead, she says, legislation scattered across at least seven acts of parliament needs updating, strengthening and consolidating so South Africa ends up with a consistent approach to whistle-blowing that is easy to understand and use.
Section 159 of the Companies Act, the heart of whistleblowing legislation for businesses and state-owned enterprises, has been on the statute books since 2008 and is no longer fit for purpose, she says, because it does not encourage or protect whistle-blowers in an era when corruption has reached “staggering proportions”.
Whistle-blowing rates remain low, and incidents such as Deokaran’s murder and the self-imposed exile of Bain & Co whistle-blower Athol Williams “inevitably discourage others from disclosing wrongdoing”.
One of the key proposals in Cassim’s analysis echoes a Zondo commission recommendation: once a whistle-blower discloses their identity, it should be compulsory to provide them and their families with adequate physical protection.
Cassim also wants victimisation of whistleblowers to be a criminal offence, as it is under 2019 legislation in Australia. There, courts may also order offenders to stop the victimisation, apologise for it and compensate victims. If a whistleblower has been fired, reinstatement can be ordered.
Cassim wants to see “stringent penalties” for companies that don’t comply with their obligation to introduce a whistleblowing system but her proposals begin with widening the net in terms of who may make a protected disclosure and who may receive it.
Whistle-blowers should include family members of employees, she says, and the list of organisations and people who can receive disclosures should get two new entries: MPs and professional journalists.
Again, Cassim cites Australia, where such disclosures can be made only in the public interest or in an emergency, and when they have already been made to a more conventional recipient and nothing has been done.
“Internal whistle-blowing helpfully enables the company to address the problem before it worsens or else to mitigate the damage,” she says. “Nevertheless, studies show that some reasons why whistleblowers disclose wrongdoing to the media are not because their claims are groundless or because they are motivated by revenge, but because of a lack of a meaningful response from the entity to whom the wrongdoing was originally reported, an absence of power within the entity to effect change, a high risk of retaliation and a desire to guarantee their anonymity.”
The requirement that a disclosure must be made “in good faith” should be scrapped, she believes, because “the veracity of the disclosure should be the overriding consideration and the discloser’s motive should not cloud the matter”.
Under another of Cassim’s proposals, this motive could be a financial reward an idea she acknowledges is “highly controversial” because it could encourage malicious and false disclosures.
But she points out that the False Claims Act in the US under which people who report frauds perpetrated against the government get a percentage of the money recovered has been a success. In 2019, more than 70% of fraud recoveries in the US were triggered by whistleblower disclosures. The government recovered $17.3bn in cases without disclosures and $44.7bn from whistleblower cases.
“Whistle-blowers are not ‘traitors’ but people with courage who choose to take action against abuses they come across, rather than taking the easy route and remaining silent,” says Cassim.