By: Norah Msuya,
As we celebrated Human Rights Day last month, it is sufficient to reflect on Whistleblowers’ rights as they reveal misconduct at significant personal and professional risk. Whistleblowers are routinely subject to gross violations of human rights, including harassment, job termination, arrest, and even physical attacks for exposing wrongdoing. But even in contexts where laws in place to protect whistleblowers are lacking, they are rarely enforced or are entirely ignored. The problems encountered by whistleblowers reflect the problems with South African society, more broadly, in particular, the pervasive lack of accountability or consequences for wrongdoing. Employees who seek to correct misconduct, report practices and products that may endanger society or resist instructions to perform illegal acts render a valuable service to the community and the employer.
Whistleblower human rights are embedded in South African legislation and championed in government policy and corporate materials. But the reality of being a whistleblower is strikingly different. Several whistleblowers have suffered devastating personal consequences in the past decade after exposing fraud, corruption, and illegality in both the public and private sectors. Whistleblower experience has demonstrated that the more critical the disclosures a whistleblower makes, the more devastating the consequences: financial and reputational ruin; losing homes and custody of children; harassment and intimidation; criminal prosecution and the institution of spurious civil cases; the inability to find employment; personal threats and threats against family members; anxiety and depression and even, as in the tragic case of Gauteng Provincial Department of Health employee Babita Deokaran, murder of the whistleblower in August 2021. Almost without exception, this retaliation goes unpunished.
Protection of Whistleblowers’ Rights in International Law
A growing number of international instruments recognise the importance of whistleblowers and require or encourage states to adopt measures to protect disclosure. Whistleblowing is integral to freedom of expression, protected under Article 19 of The International Covenant on Civil and Political Rights and other standards such as the UN Convention against Corruption.
The UN Convention against Corruption binds all signatory countries to consider legal provisions to protect people who report corruption-related offences from retaliation. Article 33 (Protection of reporting persons), provides for whistleblower protection. The implementation of Article 33 in domestic legal systems is crucial for the protection of whistleblowers and for their contributions to be taken seriously.
Also, the OECD Convention on Combating of Bribery of Foreign Public Officials in International Business Transactions establishes legally binding standards to criminalise bribery of foreign public officials in international business transactions and provides for a set of measures which makes this effective. The Convention came into force on 15 February 1999, and South Africa ratified the Convention on 19 June 2007.
At the regional level, there is African Union Convention on Preventing and Combating Corruption, and South Africa is part of it. The Convention aim to “promote and strengthen the development in Africa by each State Party, of mechanisms required to prevent, detect, punish and eradicate corruption and related offences in the public and private sectors”. Article 5(5) of this protocol imposes an obligation on member states “to adopt legislative and other measures to protect informants and witnesses in corruption and related offences, including protection of their identities”.
In 2001, the Southern Africa Development Community adopted the Protocol against Corruption at the sub-regional level. The objective of the protocol is to promote and strengthen the development, within each member state, of mechanisms needed to prevent, detect, punish, and eradicate corruption in the public and private sectors. Articles 41(e) and (f) of the Protocol provide that each State Party undertakes to adopt “measures which will create, maintain and strengthen systems for the protection of people who have in good faith reported acts of corruption” and “laws that punish those people who make false and malicious reports against innocent persons”.
Legal Framework for whistleblower protection in South Africa
The South African legal regime for whistleblower protection is centred on the Protected Disclosures Act, 26 of 2000 (PDA), which governs so-called “protected disclosures”. “Protected disclosures” refers to the category of disclosures which entitle the whistleblower to certain legal safeguards as opposed to those against which a whistleblower may validly be prosecuted. On paper, the PDA fulfils many of the theoretical requirements for whistleblower protection, although there are significant gaps. The Constitutional Court, in the case of Tshishonga v Minister of Justice and Constitutional Development, found that: The PDA takes its cue from the Constitution of the Republic of South Africa. It affirms the “democratic values of human dignity, equality and freedom”. In this respect, its constitutional underpinning is not confined to particular sections of the Constitution, such as free speech or rights to personal security, privacy and property. Although each of these human rights can be invoked by whistleblowers, the analysis, in this case, is from the perspective of the overarching objective of affirming values of democracy, of which the particular rights form a part. Democracy embraces accountability as one of its core values.
Layered above this are the many institutions which are mandated to play a role in ensuring that people who speak out about wrongdoing by their employers are protected. These include the Public Service Commission, the Human Rights Commission, the Auditor-General, the National Prosecuting Authority and the Public Protector.
The South African legal framework is based on labour law remedies, which are extremely limited in scope. However, the PDA does not deal with harm beyond work-related detriments, such as blacklisting, bullying, harassment, threats, legal costs, and other economic impacts, which are often the hardest to overcome. There are also serious gaps in protection, the most significant of which is that there are no consequences for those who fail to comply with their legal obligations to protect whistleblowers and no consequences for those who retaliate against whistleblowers.
The PIA does not contain any provisions relating to the protection of whistleblowers. The Protection of State Information Bill, which will repeal the PIA, was passed by Parliament more than five years ago but has yet to be signed into law. Although the PDA prohibits “occupational detriment” against persons who make protected disclosures, it does not prohibit the institution of criminal or civil proceedings against a person for making a protected disclosure, nor does it provide for any penalties or consequences for retaliatory measures beyond the limited labour law remedies already discussed.
The National Environmental Management Act 107 of 1998 and the Financial Intelligence Centre Act 38 of 2001 also protect whistleblowers from civil and criminal liability, but only in the relatively narrow circumstances applicable to environmental whistleblowing and money laundering, tax evasion and terrorist activities. Further, Section 159 of Companies Act 71 of 2008 offers protection for whistleblowers by expanding the protection provided by the PDA. It covers both profit and not-for-profit companies.
The Prevention and Combating of Corrupt Activities Act 12 of 2004 domesticates the United Nations Convention against Corruption, 2003. However, disclosures made under the provision of the Prevention and Combating of Corrupt Activities Act and other laws, such as the Municipal Finance Management Act and the Public Finance Management Act, do not appear to constitute protected disclosures in terms of the PDA because neither SAPS nor National Treasury are institutions to which disclosures can be made in terms of the Regulations Relating to Protected Disclosures.
There is a plethora of national initiatives aiming to tackle these gaps, but these initiatives appear to be fragmented, ineffective, stalled, or stuck in a regulatory morass or bureaucratic limbo.
The Role of Civil Society
In this context, Civil societies organisations in South Africa have been actively engaged in advocacy for policy and law reform, research and analysis seeking to identify implementation gaps, development of model whistleblowers laws, and advocacy for the development of internal anti-corruption and whistleblowing policies for the private sector. They are investigating whistleblower disclosures, providing financial, legal, practical, and psychological support to whistleblowers, and researching whistleblower experiences to make recommendations for strengthening protections. However, they are not particularly well coordinated and, in some instances, duplicate each other’s work. Civil society organisations should organise a nationwide public awareness campaign to address the stigma of whistleblowing and to raise the favourable public profile of whistleblowing as a service to democracy, and of whistleblowers as champions of transparency and accountability. In order to effectively work with the government CSOs should identify and establish contact with government focal points, establish genuine partnerships based on common goals, align activities to national priorities, demonstrate the role of civil society as an impartial watchdog and establish but maintain Civil society organisations’ independence.
The courageous actions of whistleblowers defend human rights, save lives and billions of dollars in public funds, and contribute to making governments more transparent and companies more accountable. It is time for South Africa to step up and become the delivery point for human rights that they are meant to be. They need strong legal protections to protect them from retaliation and enable them to report offences safely and freely.
Dr. Norah Msuya is an academic and writes in her personal capacity.