Despite a major overhaul of our whistleblower legislation, South Africa remains an unsafe place for whistleblowers.
Ask Cynthia Stimpel who saved South African Airways more than R250m when she raised concern about a R15bn debt restructuring loan agreement with little-known BnP Capital. She got hounded out of the airliner and is fighting to get her job as group treasurer back.
Then there is Mpho Seero, the chief audit executive at the Matlosana Local Municipality in the North West who was fired in retaliation after he reported various irregular procurement activities totalling R215m to the municipal council in 2015. The municipality was recently instructed by the Public Protector to reinstate him.
And who would forget the bravery of Wendy Addison the former LeisureNet treasurer who became homeless after she lost her job and spent months begging on the streets after she blew the whistle in 2000 on two LeisureNet executives who siphoned cash from the company for over nine years?
Also spare a thought for former Trillian CEO, Bianca Goodson who provided evidence to the parliament’s Eskom inquiry that the company was a sham, intended to swindle hundreds of millions from Eskom and Transnet. She also lost a job as a result of her disclosure.
Today, exactly 19 years ago, the Protected Disclosures Act (PDA), aimed at protecting whistleblowers like Stimpel, Seero, Addison and Goodson from their eventual fate came into effect. But despite it and its noble intentions, whistleblowers continue to be subjected to occupational detriment often by the very people they blew the whistle on.
Aimed at promoting the “eradication of criminal and other irregular conduct in organs or state and private bodies”, the PDA affords employees protection from victimisation and reprisal in case they decide to speak out against corruption, maladministration and malfeasance and it stipulates clear provisions on how protected disclosures can be made and to who.
More importantly, it recognises that “criminal and other irregular conduct in organs of state and private bodies are detrimental for good, effective, accountable and transparent governance… and can endanger the economic stability of the Republic and have the potential to cause social damage”.
But the recently published Global Corruption Barometer for Africa found that only 34% of South African respondents feel that they can report corruption without fear while 63% are discouraged to report any form or corruption because they would risk retaliation or other negative consequences and a more concerning 53% think that it is unlikely that action be taken if they report corruption.
Also, The Ethics Institute (TEI) found in its 2019 South African Business Ethics Survey that about a third of the respondents indicated that they have been exposed to unethical behavior in the workplace but almost half have not reported it out of fear that they would be victimized or that they would not be believed.
It is therefore clear that the amendments of 2017 have not adequately addressed the deficiencies in the PDA and have done little to promote a culture of whistleblowing in South Africa.
A good and workable whistleblower ecosystem is not only about protecting them from occupational detriment and giving them immunity from civil and criminal prosecution. It is also about having in place the kind of support systems that would enable them to, when these protections are threatened, obtain advice and be provided with the necessary legal defences and easy access to it.
But in South Africa, it is also about changing how we think about whistleblowers and respecting them for the important role they play in fighting corruption, ensuring clean and good governance and protecting valuable and scarce resources that should create opportunities.
As Labour Court Judge DJ Pillay said in a judgement, “whistleblowers are not impimpis, a derogatory term reserved for apartheid spies. Whistleblowers are neither self-serving nor socially reprehensible. In recent times its pejorative connotation is increasingly replaced by openness and accountability. Employees who seek to correct wrongdoing, to report practices and products that may endanger society or resist instruction to perform illegal acts, render a valuable service to society and the employer”.
But in order for whistleblowers to render the best possible service to society, we need a rethink about the PDA and as a matter of urgency address its deficiencies to encourage the culture required to fight corruption in both the public and private sectors.
Some important recommendations made by the South African Law Reform Commission (SALRC) following the inclusion of the investigation into protected disclosures onto their programme by then-Minister of Justice and Constitutional Development, Bridgette Mabandla, were ignored in the drafting process.
Similarly, some of the weaknesses identified National Development Plan, adopted by cabinet in 2012, were also not addressed by the Protected Disclosures Amendment Act of 2017.
As an example, the SALRC recommended that “where an employee or a worker knowingly makes a false disclosure such disclosure should not be criminalised” because, they argued, such a person would in any case not qualify as a whistleblower and he might then in any case be guilty of criminal defamation or even fraud.
The Amendment Act, in Section 9, made it a criminal offense punishable with a fine or imprisonment for a period not exceeding two years or to both a fine and imprisonment.
And while the Ugandan Whistleblower Protection Act, makes it a criminal offence for anyone to victimise a whistleblower for making a disclosure, those responsible for subjecting workers and employees to occupational detriment on account of a disclosure made, would not be guilty of any offense.
The NDP also calls for “adequate security” for whistleblowers as physical and economic protection may be required in some cases but the Amendment Act also failed to provide adequate security or “adequate protection” to whistleblowers.
The NDP also promoted the idea of a public body that would be tasked with providing advice and promote public awareness as well as monitor whistleblowing while the SALRC requested the department of Justice and Constitutional Development to consider extending the provision of legal aid assistance in civil matters to whistleblowers.
Unfortunately, the Department of Justice has not responded on both these important matters and regulations that support the PDA have not been drafted during the last 19 years.
While the PDA makes it compulsory that employers have “appropriate internal procedures for receiving and dealing with information about improprieties” and that such a mechanism be promoted amongst all workers, this important provision is not being policed and there is no duty on any employer to proof that they are compliant. In Australian failure to have a whistleblower policy is a criminal offense and the maximum penalty for not having a policy legislation is around R1.9m.
If we are serious about fighting corruption we can no longer provide the highest level of protection to those who are exposed due to whistleblowers while we leave whistleblowers vulnerable.
Ensuring that whistleblowers are protected from occupational detriment and that employers all abide by the law, it is perhaps time that government seriously consider establishing the public entity the NDP has in mind to provide advice and promoting public awareness about whistleblowing as well as monitoring and ensuring that the PDA is strengthened optimally.
Lionel Adendorf is a whistleblower, an integrity and ethics management expert and MD of Reputegrity Ethics and Compliance Solutions.
