CORRUPTION IN SOUTH AFRICA: WHISTLEBLOWER PROTECTION LAW IS BEING REFORMED

Candlelight vigil for slain corruption fighter Babita Deokaran in Johannesburg.

Sat 22 July 2023:

South Africa is on the path to reforming its law on whistleblowing to provide improved protection for individuals who expose corruption and illegal activity.

The country’s Department of Justice and Constitutional Development recently published a discussion document on the proposed reforms. This first step in reforming the country’s law on whistleblowers is to be welcomed.

Whistleblowers in South Africa have endured severe consequences. These include physical harm, intimidation, and loss of jobs and career prospects. Some have been murdered. Others have fled the country, fearing for their lives or safety.

The Zondo Commission, which investigated state capture and corruption within government departments and state-owned entities, highlighted whistleblowing as one of the most effective tools to combat corruption. The discussion document on reform builds on President Cyril Ramaphosa’s response to the commission’s findings and recommendations.

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While the government proposals would expand the scope of protection under the Protected Disclosures Act, they do not address the challenge of whistleblowers having to navigate a complex and inconsistent web of legislation currently in place.

What South Africa needs is a consolidated legislative framework that governs whistleblowing in the various sectors. The requirements for protection would be the same in the different sectors. This would bring clarity and consistency across sectors. It would also make the laws easy to understand and to rely on.

Financial incentives

The discussion document rejects the idea of providing financial rewards to whistleblowers. It opts instead for a fund to assist those who are dismissed and who face severe financial hardship for blowing the whistle.

While the fund may provide some relief to unemployed whistleblowers, it does not go far enough to give whistleblowers an incentive to come forward.

Without adequate incentives, whistleblowers may hesitate to come forward and expose corruption. Given the alarming levels of corruption in South Africa, it is imperative that whistleblowers are incentivised to step forward and that their protection is ensured.

It is controversial whether whistleblowers should be rewarded for their disclosures. This is because of moral and ethical concerns. Some worry about potential ulterior motives taking the place of a genuine desire to expose wrongdoing when rewards are offered. Another concern is that whistleblower awards may encourage fraudulent reporting and false allegations.

However, in a highly corrupt environment, the need to expose corruption should outweigh concerns about motives. Strict penalties could be put in place in the legislative framework to overcome concerns about fraudulent reporting and false allegations.

In my research I found that the benefits of a whistleblower award system in South Africa outweigh the potential drawbacks. Such a system may encourage whistleblowers to disclose high-quality information that would otherwise be difficult to obtain. This is crucial in a country with high levels of corruption but low rates of reported wrongdoing.

Other proposals for reform

The justice department suggests that whistleblowers under the Protected Disclosures Act should have the right to request state protection if they reasonably believe that their lives or those of their immediate family members are in danger. This proposal is commendable because of the risks whistleblowers face in South Africa.

It also proposes that criminal offences should be imposed on certain persons or organisations that ignore whistleblowers’ disclosures, such as the Public Protector and the Public Service Commission. Legal Aid South Africa should provide legal assistance to whistleblowers at the justice minister’s discretion.

Another proposal is to allow whistleblowers who believe that detrimental action has been taken against them to file complaints with the Human Rights Commission. The commission will have the authority to decide whether to investigate or dismiss the complaint, or refer it to a court to determine whether detrimental action was indeed taken.

This proposal would enhance the commission’s powers in managing whistleblower complaints. It is, however, crucial to establish effective processes and to avoid prolonged delays in addressing complaints.

Consolidated legislative framework

The main statutes governing whistleblowing in South Africa are the Protected Disclosures Act of 2000 and the Companies Act of 2008.

But there are at least nine other statutes governing whistleblowing. These include:

This fragmented regulation creates a confusing web. It also results in inconsistent protection. The complexity and vagueness may also discourage people from disclosing wrongdoing.

The proposed reforms focus at this stage on enhancing the Protected Disclosures Act, but not the other statutes related to whistleblowing.

The act protects whistleblowers who are employees in the public and private sectors from being subjected to occupational detriments, such as being dismissed, demoted, suspended or disciplined. The justice department proposes widening its protections to include persons who are not in an employer-employee relationship.

Whistleblowing is neither self-serving nor socially reprehensible. It is an essential weapon in the fight against corruption. Given South Africa’s staggering and escalating corruption levels, a strong legal framework is needed which both encourages whistleblowing and effectively protects whistleblowers.

The reforms are still in the early stages. They require further development before being drafted into an amendment bill. The discussion document is open to public comment until 15 August 2023. It remains to be seen what effect the public comments will have on the proposed reforms.

Hopefully, the final reforms will provide stronger encouragement and incentives for whistleblowers, considering the risks they face while bravely serving society.

Rehana Cassim

Professor in Company Law, University of South Africa

Rehana Cassim is a Professor in the Department of Mercantile Law at the University of South Africa (Unisa). She holds a BA degree (cum laude), an LLB degree (cum laude), a postgraduate LLM in Company Law (cum laude) from the University of the Witwatersrand, Johannesburg and an LLD (in Company Law) awarded by the University of South Africa, Pretoria.

She worked as a research assistant at the Constitutional Court of South Africa where she clerked for the Honourable Justice Albie Sachs and the Honourable Justice Zak Yacoob. She is an admitted attorney and notary public and has practised as such at Bowmans, specialising in Company Law. She has lectured Company Law at the University of the Witwatersrand. She has contributed to several scholarly books on Company Law, and has published largely in the field of Company Law. Her recent research focuses on the removal of directors from office and on declaring directors delinquent under the Companies Act 71 of 2008. She is the author of a book titled “The Removal of Directors and Delinquency Orders under the South African Companies Act” published by Juta & Co Ltd in 2020. She is a National Research Foundation (NRF) rated researcher, and the recipient of the 2018 Unisa Women in Research Emerging Researcher Award for Excellence in Research and the 2020 Unisa Women in Research Leadership Award. She is a Deputy Editor of the South African Mercantile Law Journal and an Editorial Board member of the Comparative and International Law Journal of South Africa (CILSA).