Strengthening whistleblower protection by encouraging job security and legal support for individuals who report corruption.
10 Minutes
(Opening of Debate)
6 June 2024
House Chairperson,
Members of the Executive,
Members of the House,
Fellow South Africans,
The month of June is one that is significant in the history of our country. It is the month when the youth of this country took to the streets to make their voices heard, rejecting an unjust system which was engineered to render blacks to be hewers of wood and gatherers of water. The youth of 1976 rejected a system that sought to strip them of their dignity and identity. They fought so we could be here today. As Solomon Mahlangu famously said: My blood will nourish the tree that will bear the fruits of freedom. We salute their bravery and fortitude.
Chairperson,
23 June is known as World Whistleblowers Day. Across the world, whistle-blowers are remembered. These are women and men who choose to brave against threats to their lives and livelihoods to expose corruption on both small and large scales. In so doing, the lives of their families and friends are also put at risk. The day allows for reflections on the meaning of whistleblowing, its importance and creating a more enabling and conducive environment. It a day to advocate for stronger protections for those who expose wrongdoing.
Whistle-blowers play an important role in the public and private sectors in exposing corruption, criminal activities, infringement of human rights, and conduct threatening the environment. One of prominent judicial commissions of inquiry in democratic South Africa is the Judicial Commission of Inquiry into Allegations of State Capture which was chaired by former Chief Justice Zondo. It is through, among others, the bravery of whistleblowers that the commission was established and could unearth the depth of wrongdoing in the country. The commission uncovered systematic corruption in both private and public sectors in South Africa.
Chairperson,
One of the values on which our Constitution is founded a multi-party democratic system of government to ensure responsiveness and accountability. On the creation of a culture of disclosure, the court in Potgieter vs Tubatse Ferrochrome remarked that:
“The fostering of a culture of disclosure is a constitutional imperative as it is at the heart of the fundamental principles aimed at the achievement of a just society based on democratic values. This constitutional imperative is in compliance with South Africa’s international obligations.
In the fight against the endemic scourge of corruption, which undermines all areas of society’s development, South Africa is a signatory to the United Nations Convention Against Corruption. The Convention contains measures to protect the physical safety of whistle-blowers.
Domestically, South Africa has passed a number of statutes which provide a measure of protection, but there is no integrated matrix of protection for whistle-blowers. Legislation which deals specifically with protecting whistle-blowers is the Protected Disclosures Act 26 of 2000. The Act only protects a whistleblower against unfair treatment and detriment in the workplace.
The PDA protects whistle-blowers in a labour-law context against specific “occupational detriments” for making a protected disclosure. The Act provides that no employee or worker may be subjected to any occupational detriment by their employer on account of, or partly on account of, making a protected disclosure. Consequently, where an employer, under the express or implied authority or with the knowledge of a client, subjects an employee or worker to an occupational detriment, both the employer and the client are jointly and severally liable. The PDA does not distinguish between
public and private sector employees who blow the whistle.
Outside of the labour context, s159 of the Companies Act provides protection for persons making reports on contraventions of the Companies Act and related legislation. As with the PDA, the person must make the disclosure in good faith and must reasonably believe that the information shows or tends to show that a company, external company, director or official of a company contravened a law, failed to comply with a statutory obligation, unfairly discriminated against someone, endangered the health and safety of persons or the environment, or contravened legislation that would harm the company. A director, shareholder and trade union representing an employee who makes a protected disclosure will be immune from civil and criminal liability and administrative liability. The person making the disclosure will be entitled to damages if another person intentionally causes detriment to them or threatens to cause such detriment. In contrast to the PDA, there is a presumption in the Companies Act that this conduct occurred as a result of the disclosure being made. The Protection from Harassment Act. There have been calls for reforms to legislation so that there is better protection of whistleblowers.
Whilst government continues to acknowledge the bravery of whistleblowers who speak up to ensure justice is served. Unfortunately, there are strong trends of retaliation from those who want to silence them. Whistleblowers need to be encouraged to report instances of fraud and corruption and need to be protected from victimisation, prejudice, or harm.