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There have been many corruption scandals reported in South Africa in recent times. The extent of corruption in the country has been exposed by the judicial commission charged with investigating allegations of state capture over the past three years. Corruption can hamper a country’s economic growth and undermine democratic principles, stability and trust.
Whistleblowing is one of the mechanisms used to deter corruption. It plays a role in promoting accountability, transparency and high standards of governance in the private sector and public institutions. Whistleblowers help fight criminal behavior and should therefore be protected by the state. But the South African system is flawed.
Recently, the country was shocked by the murder of a woman who spoke out against corruption in the purchase of COVID-19 personal protective equipment.
As an academic, I worked on the importance of whistleblowers in general, and the possibility of paying incentives to people who speak out against tax evasion.
It is one way of strengthening the role of whistleblowers. There are others as well, such as the use of special courts to try cases. For example, I support calls for the physical safety of whistleblowers and their families. I also believe that whistleblowing should become a national strategic priority. This would allow the country to develop an environment of transparency and accountability.
Protection of whistleblowers
South Africa has seen a good number of whistleblowers sound the alarm bells on irregularities and corruption. The result for individuals in many cases shows that they are not getting the protection they deserve.
Notable examples include Paul Theron, the prison doctor who exposed the poor health conditions at Pollsmoor Prison in the Western Cape.
Dr Theron was suspended after making the disclosures to Parliament. He fought for his case to be heard as part of the whistleblower process. But he eventually ended up in labor court. He was never reinstated.
There is also the famous case of Mike Tshishonga, an official who made serious allegations to the media about a former Minister of Justice and Constitutional Development. He was immediately suspended and subjected to a disciplinary investigation.
The case took many years to be resolved until the Labor Court of Appeal.
The most notable recent case is the murder of Babita Deokaran. She had denounced corruption in the Gauteng province health department before her death.
It is clear from these examples that the South African whistleblower environment does not encourage people to come forward.
What is in place
South Africa has various pieces of legislation and regulatory policy documents that cover corruption and whistleblowing. They also provide for the protection of whistleblowers.
The most important of these is the Protected Disclosures Act 26 of 2000. The law aims to encourage whistleblowing in the workplace. It also seeks to create a culture that facilitates the disclosure of information about criminal and other improper behavior.
The Constitution, the Labor Relations Act and the Companies Act are also part of the legislative framework for whistleblowing.
For its part, the South African Competition Commission encourages “authorized denunciations” of cartels involved, among other things, in price fixing and collusive tendering.
In addition, the Law on Preventing and Combating Corruption Activities aims to strengthen measures to prevent and combat corruption. It imposes on certain persons in positions of authority the duty to report certain corrupt transactions.
The Protected Disclosures Act lists the Auditor General and the Québec Ombudsman as institutions to which whistleblowers can disclose information. Both are important for achieving the objectives of the law and are staffed with specialists to combat corruption and other illegal activities. But they should receive additional funds to do their jobs better.
South Africa’s regulatory framework is one of the best in the world. But there are loopholes in the system.
Steps to strengthen the system
South Africa should consider establishing an independent whistleblower institution. It would help whistleblowers from the moment they make disclosures. He could ensure:
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confidentiality of information flows
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protection of their identity
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chart the way forward for them.
It would improve the current system. It would also show the important role these heroes and heroines play.
I also think the country should consider using dedicated specialized courts and units that deal specifically with corruption and whistleblower protection. It would allow :
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show that the government is serious when it comes to tackling criminal and illegal activities that have high social and economic costs
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send a clear message that the full impact of the law will be felt by the authors and,
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show a serious commitment to upholding a value system where whistleblowers are valued and protected.
Employers should have a zero tolerance policy on corruption and other irregular activities. Internal procedures sometimes lack the appropriate commitment to follow up on issues raised by the whistleblower. Often no feedback is provided or nothing is done.
I support the suggestion of the Open Democracy Advice Center that developing a “Code of Good Practice” would be helpful. It provides comprehensive and thoughtful guidance to private and public organizations on legal interpretations, the implementation of whistleblowing policies and alternative corruption prevention mechanisms.
In my research, I support the calls for compensation for whistleblowers. For example, they might be eligible for a financial reward based on the amount of tax revenue eventually collected.
Lessons can be learned from the United States, which has strong whistleblower protections. These include the False Claims Act which allows individuals to sue on behalf of the government when they have evidence of fraud. Those citizens who recover money or goods are entitled to rewards for their efforts.
Another is the Dodd-Frank Act. It provides for a reward of between 10% and 30% of the sums collected if an “eligible whistleblower” voluntarily provides original information.
These measures can be easily adopted by South Africa where the compensation is totally insufficient. The compensation limit provided for by the Protected Disclosures Act in accordance with the limits provided for by the Labor Relations Act is not sufficient. For example, in the event of an unfair labor practice, the employee would be entitled to a maximum of 12 months of compensation and in the event of unfair dismissal to a maximum of 24 months of compensation.
Another problem is that it only intervenes when the whistleblower has suffered “professional injury”. For example, when an employee is disciplined, terminated, suspended, demoted, harassed, intimidated or transferred against their will.
It is time for business and political leaders as well as civil society organizations to push for a system where speaking out is normalized and whistleblowers are properly protected. And rewarded.
Monray Marsellus Botha does not work, consult, own stock, or receive funding from any company or organization that would benefit from this article, and has not disclosed any relevant affiliation beyond his academic position.
By Monray Marsellus Botha, Head of Department and Associate Professor, University of Pretoria
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