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.
“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 Activ (“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 reportv 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 Actvi, Prevention and Combatting of Corrupt Activities Actvii, the National Environmental Management Actviii (“NEMA”), Protection from Harassment Actix, Witness Protection Actx, and the Promotion of Access to Information Actxi 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 interestxii. 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, Incxiii, 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 Othersxiv(“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 lawxv, which expressly includes persons that are connected to whistle-blowers and, commendably, even those who may be mistakenly perceived as whistle-blowers.
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.
Part two follows below.
i This is the preferred definition of Transparency International, as it appears in its document entitled International Principles for Whistleblower Legislation (2013) as accessed at https://www.transparency.org/whatwedo/publication/international_principles_for_whistleblower_legislation on 12 June 2018.
ii The TI Guidelines can be accessed at https://www.transparency.org/whatwedo/publication/best_practice_guide_for_whistleblowing_legislation(accessed on 25 May 2018).
iii See note 1.
iv 26 of 2000, at section 213.
v K Malunga “Whistle-blowing in South Africa” (2015) accessed at https://www.outa.co.za/wp-content/uploads/2016/08/Whistle-blowing-in-South-Africa27-Jan-2015.pdf on 4 June 2018.
vi 71 of 2008.
vii 12 of 2004.
viii 107 of 1998.
ix 17 of 2011.
x 112 of 1998.
xi 2 of 2000.
xii The requirement that disclosures must be made in the public interest can be distinguished from the category of a catch-all threat to the public interest discussed above. The former refers to a qualifying requirement for all disclosures (i.e. all disclosures – even if already falling within a listed category of protected disclosure – must also be in the public interest to attract protection) while the latter refers to a descriptive category of disclosures (i.e. if conduct does not fall within any listed category of protected disclosures, it may still be protected if it is made in the public interest).
xiii No. 14-5047 (6th Cir. 2014), accessed at https://law.justia.com/cases/federal/appellate-courts/ca6/14-5047/14-5047-2014-11-18.html on 1 June 2018.
xivRFS Administrators (Pty) Ltd and Another v NFMW And Others  ZAGPPHC 441.
xvLaw on the Protection of Whistleblowers Act, articles 6 and 7.
WHISTLE-BLOWER PROTECTION: DOES SOUTH AFRICA MATCH UP? - PART II
Part I of this brief series described South Africa’s legislative provisions for the protection of whistle-blowers - specifically, the Protected Disclosures Acti(“PDA”). It also provided background to Transparency International’s Best Practice Guidelines for Whistleblowing Legislation (“TI Guidelines”). Part II will continue with comparing the PDA against the TI Guidelines, drawing attention to points of harmony and discord.
HOW CERTAIN MUST A WHISTLE-BLOWER BE OF THE INFORMATION DISCLOSED?
Requirements for protection
Does a suspicion of wrongdoing suffice, or must the whistle-blower furnish hard evidence when making a disclosure? Whistle-blowers often do not have access to evidence that would confirm that a wrongful act has been committed. It is undesirable to expect or encourage them to investigate their suspicions themselves before making a disclosure. With this in mind, the threshold recommended by the TI Guidelines is for a whistle-blower to have a “reasonable belief of wrongdoing”. Even if that reasonable belief is later revealed to be unfounded, protection would still apply. It is important to distinguish this from knowingly false disclosures, for which there is no protection. The TI Guidelines recommend that appropriate sanctions should apply.
The PDA provides that whether or not a disclosure is clothed with protection is determined, firstly, by applying provisions regarding to whom the disclosure is made. A disclosure can be made to a legal advisor, an employer, a member of Cabinet or of a province’s Executive Council, institutions created in terms of chapters nine and ten of the Constitutionii, or the public at large (which would include the police, the media, and non-governmental organisations such as Corruption Watch).
Different requirements apply in relation to the persons who can receive the disclosure. For instance, a disclosure to a legal advisor is protected if it is made “with the object of or in the course of obtaining legal advice”iii, whereas disclosures to employers must be made in good faith and in line with the employer’s whistle-blowing procedureiv which can include use of third-party reporting mechanisms. If no such procedure is in place, then the disclosure can be made to the employer itself. In order to gain protection for a disclosure to a Chapter Nine institution, a whistle-blower must reasonably believe that information disclosed, and any allegation contained in it, is “substantially true”v. Even more onerous requirements must be met for disclosures to the publicvi.
These provisions appear to accord with the “reasonable belief of wrongdoing” recommendation in the TI Guidelines. The system of prescribing differing requirements based on to whom the disclosure is made is, however, needlessly complex and burdensome on the whistle-blower, who may not have access to legal advice prior to making the disclosure. A preferable approach is set low thresholds for persons or authorities to accept disclosures (with such disclosures retaining protection) and emphasise the referral of reports of wrongdoing to the most appropriate authority. Protection should apply, provided the disclosure is bona fide. This part of the Act could therefore be revisited with a view towards simplification.
“No personal gain” requirement
The TI Guidelines recommend that legislation should not provide that a whistle-blower forgoes protection if he or she stands to gain something from the disclosure. This “no personal gain” requirement undermines the purpose of whistle-blower protections. While it may seem unsavoury for a whistle-blower to benefit from a disclosure, the fact remains that whether or not a whistle-blower obtains an advantage resulting from his or her disclosure has no bearing on whether the conduct reported was wrongful. The proper focus in protecting whistle-blowers is unearthing wrongful conduct. Benefits that may accrue to whistle-blowers following a disclosure are, strictly speaking, irrelevant.
The PDA includes a “no personal gain” requirement that applies to disclosures made to the public generallyvii. Therefore, in order for a disclosure to the public to be protected, the whistle-blower will firstly have to show that he or she believed the information reported to be substantially true and that he or she did not make the disclosure for the purposes of personal gainviii. Next, the whistle-blower will have to show that the disclosure was reasonable and that one of four conditions relating to the disclosure applies. Examples of such conditions include a belief that he or she will be subjected to an occupational detriment if a disclosure is made to an employer or that the impropriety is of an “exceptionally serious nature”.
The TI Guidelines’ approach to disclosures made to the public at large is:
“whistleblowers should be protected for making public disclosures in cases of urgent or grave public or personal danger, or persistently unaddressed wrongdoing that could affect the public interest, without additional requirements”.
The PDA makes provision for disclosures to the public where the impropriety alleged is exceptionally serious but prescribes a number of requirements before protection is granted. Some of these – such as a belief in the truth of the information relied upon and the reasonableness of the disclosure – have utility. However, the “not for personal gain” requirement does not, and it should be removed from the PDA.
WHAT PROTECTION IS PROVIDED TO WHISTLE-BLOWERS?
Anonymity and confidentiality
Whistle-blowers may require their identities to be protected pursuant to a disclosure. The TI Guidelines note 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”. This can be done by firstly, allowing for anonymous reporting, and secondly, even where the whistle-blower’s identity is known to the reporting authorities, maintaining confidentiality. 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.
Worryingly, the PDA does not contain any specific provisions relating to confidentiality. Therefore, there is no mechanism in place to protect them in instances where their identities becoming public could cause them to experience harm in or out of their work environment, endanger their health or safety or that of people around themix. South African news archives are littered with stories of harassment and murder of whistle-blowers.x 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.xi
WHAT CONDUCT SHOULD WHISTLE-BLOWERS BE PROTECTED FROM?
The TI Guidelines note that fear of unfair treatment is one of the primary reasons that people do not report wrongdoing. But what is meant by “unfair treatment”? The TI Guidelines suggest that an exhaustive list should be avoided. Rather, if lists are used, they should be open-ended by making use of phrases such as “and any similar or related conduct”. Progressive legislation would go as far as to extend the employer’s responsibility to protect whistle-blowers from retaliation committed by third parties linked with the employer, as is the law, for example, in Ireland. Further, protection should ideally extend even after the employer-employee relationship has ended.
The PDA makes use of a closed list of harm, as listed in the definition of “occupational detriment”. This list refers to ten instances of harm in a work context, including being subjected to disciplinary action; being dismissed, suspended, demoted, harassed, or intimidated; being transferred against his or her will; being refused a reference or being provided with an adverse reference; and being denied appointment to any employment, profession, or office.
While this list is extensive, it is far from the best-practice provision contained in South Korea’s whistle-blowing legislation. This law not only includes a broad scope of potential harm (that goes beyond work-related detriments to include blacklisting, bullying, and administrative and economic disadvantages), but also makes it clear that conduct impugned by the law is not limited to that which is listed.
Threats to personal safety
In the absence of any specific provisions to protect the personal safety of whistle-blowers, South African whistle-blowers would have to make use of existing laws to obtain protection. This would include the ordinary criminal law and the Protection From Harassment Actxii, in which “harassment” is described as engaging in conduct that that causes harm (or inspires the reasonable belief that harm may be caused) by stalking, attempting to talk to, or sending communication to the complainant.
This legal regime can be contrasted with Ghana’s Whistleblowers Act, which provides that whistle-blowers who have “reasonable cause to believe” that they or their family members are in danger, can request police protection, and the police shall provide the protection considered adequate. As highlighted above, whistle-blowers in South Africa face great risks to their personal safety. South African legislators should therefore give serious consideration to including a similar provision in our law so that police protection can be accessed quickly and easily.
Protection from legal action
Individuals may be deterred from speaking out for fear of breaching a confidentiality agreement or facing a law suit founded on defamation. The TI Guidelines are clear: “legislation should ensure that no one can contract out of the right to blow the whistle”. Thus, laws should provide that any clause excluding the operation of provisions for whistle-blower protection is void. They should also provide that a whistle-blower may not be subjected to detrimental action on account of having made a protected disclosure.
Even the possibility of facing legal action can be enough to deter whistle-blowers from raising the alarm – court proceedings are notoriously long, expensive, and daunting to those not acquainted with court systems and processes. Transparency International recommends that protection should consist of a waiver of liability. This means that no civil or criminal proceedings can be instituted against whistle-blowers in the first place. This is as compared to the “defence” approach, where the whistle-blower is able to raise a protected disclosure as a defence when charged with the breach of a legal obligation. The waiver of liability approach prevents the whistle-blower from being brought before court or a disciplinary proceeding in the first place, which is a more effective protection.
Ghanaian law provides for a waiver of liability, with a caveat: if it is proved that the whistle-blower knowingly made a false disclosure with malicious intent, he or she may be subjected to criminal or civil proceedings. This formulation strikes a balance in that it protects whistle-blowers from what can be vexatious and retaliatory litigation, but still allows the subject of the disclosure access to the courts. Importantly, the onus rests on the person bringing the action to show that the disclosure was false and ill-intended.
The PDA unfortunately makes use of the “defence” approach. This position should be reconsidered, particularly as the positioning of the onus in Ghana’s Whistleblower Act shows that it is possible to balance employers’ rights of access to courts with effective whistle-blower protection.
Consideration should also be given to providing protection to whistle-blowers where employers abuse court process by instituting civil or criminal action where the aim is simply to harass the whistle-blower. For example, the TI Guidelines note that French law provides for an increased civil fine for those who bring “abusive or vexatious criminal proceedings against a whistle-blower (for defamation)”.
Protection for employees who refuse to participate in wrongdoing
Employees should not be penalised for refusing to participate in wrongdoing. In the labour law context, such a refusal may put an employee at risk of retribution or discrimination. Another risk is that such behaviour could be characterised by the employer as insubordination or a refusal to follow orders.
Such employees may not necessarily be whistle-blowers: they are those who decline to participate in the wrongful conduct of their employers, at times under considerable pressure. The TI Guidelines recommend that an employee’s right to refuse to participate in wrongdoing should be respected and upheld.
The PDA provides that the exclusion of criminal or civil liability referred to above is not available to a worker or employee who participates in the disclosed impropriety. The provision in itself is reasonable – if a whistle-blower is involved in wrongful conduct, he or she should not escape liability. Blowing the whistle should not immunise anyone against the consequences of their actions.
Whistle-blowers would be able to find protection against occupational detriment in the PDA. However, his or her colleague who, for whatever reason, does not make the disclosure but who still stands up to his or her employer and refuses to participate in wrongful conduct, would find no protection at all. While existing labour law might protect against more egregious forms of detriment, such as dismissal, the wider protections in the PDA – such as being refused a reference, for example – would be unavailable. The law should be amended to give full protection against occupational detriments to those employees who refuse to participate in wrongful acts.
The focus of briefs I and II in this series have been on the substantive aspects of whistle-blower protections. Briefs III and IV will look at the procedural and systemic dimensions that apply when ensuring that whistle-blowers are protected and supported after making a disclosure.
Cherese Thakur is a Legal Researcher at the Helen Suzman Foundation.
This article first appeared as an HSF Brief.
i Act 26 of 2000.
ii Earlier this year, the Department of Justice and Constitutional Development sought comments on proposed regulations to the PDA. These regulations seek to deal with the persons and bodies to whom protected disclosures can be made in addition to the persons and bodies listed in section 8(1) of the PDA. These regulations have not yet been promulgated. See General Notice 187 of 2018 in the Government Gazette issue 41581, accessed at http://www.justice.gov.za/legislation/notices/2018/20180420-gg-41581-gon187-PDA-Invite-DraftRegs.pdf on 22 June 2018.
iii Section 5 of the PDA.
iv Section 6(1) of the PDA.
v Section 8 of the PDA.
vi Section 9 of the PDA.
vii See section 9(1)(b) of the PDA.
viii This would exclude a reward payable in terms of any law.
ix The Witness Protection Act 112 of 1998 may offer some protection, but this is limited to those persons who are required to provide evidence in “proceedings” listed in that Act. Such proceedings include certain criminal proceedings, proceedings before commissions or Tribunals, or those conducted in terms of the Inquests Acts. Not all whistle-blowers would be entitled to such protection. Therefore, a special dispensation is required to preserve whistle-blowers’ confidential information.
x See Thamm “SA whistleblowers: Assassinations, victimisation, marginalisation for doing the right thing” Daily Maverick accessed athttps://www.dailymaverick.co.za/article/2015-03-03-sa-whistleblowers-assassinations-victimisation-marginalisation-for-doing-the-right-thing/#.WxpgzYozbIU on 8 June 2018, Timse “Telling the truth punishable by death” Amabhungane accessed athttp://amabhungane.co.za/article/2018-02-08-telling-the-truth-punishable-by-death on 8 June 2018.
xi A 2007 Report on Protected Disclosures issued by the South African Law Reform Commission considered the question of whether whistle-blowers should be granted confidentiality. The majority of comments it received favoured the inclusion of a clause protecting the identity of persons who make protected disclosures. Despite this, the Commission declined to recommend that the PDA be amended in this regard. Its reasoning was that the Protection of Access to Information Act does not automatically grant access to identifying information and that a “blanket prohibition against revealing the identity of a whistleblower…would not be conducive to the proper investigation of such a disclosure” as some of the records relied upon in the investigation may identify the person who submitted the disclosure. The Commission therefore did not attribute enough weight to the fact that a lack of confidentiality creates a strong disincentive for whistle-blowers to make disclosures. Further, the use of redactions to obscure identifying information would allow documentation including such information to be used for the purposes of investigation. The report can be accessed athttp://www.justice.gov.za/salrc/reports/r_pr123_protected-disclosures_2007.pdf (date accessed: 25 June 2018).
xii 17 of 2011.