Strengthening whistleblower protection by encouraging job security and legal support for individuals who report corruption.

10 Minutes

6 June 2024

Though the present is a dangerous place to live

Possibility remains what moves us

We are all involved

Indifference would simply be

Evidence of the will to die

Or trying to straddle some fence

That no one has ever seen.

Together we can and must

rehabilitate our wounded dreams

to reclaim and nourish the song

of quality of our vibrant being

as evidence of how it is to be alive

past any need for even a single lie.

This is an extract from the poem titled “Wounded Dreams” by the late Professor Keorapetse Kgositsile, fondly called ‘Bra Willie’. He was an internationally acclaimed poet and political activist who left a great legacy in the political and cultural landscapes of our country.

Chairperson,

The country continues to deal with the aftermath of state capture. We are mindful that many state institutions were almost completely destroyed. Critical institutions were almost in left in ruins. The degree of the damage caused by state capture is in proportions unimaginable. But we are a resilient people. Professor Kgositsile charges us to rehabilitate our wounded dreams. We continue showing appreciation for the people who blew the whistle against state capture.

Chairperson,

Whistleblowers often fear for their safety and that of their loved ones. Blowing the whistle can result in the end of one’s career. Providing the necessary protection is important.  The Office for Witness Protection, established under s 2 of the Witness Protection Act, is tasked with ensuring the safety of witnesses who have reason to believe that their safety or the safety of any family member or person in a close relationship or association with that witness is or may be threatened by any person or group or class of person, whether known or not, because they are a witness.  The protection under that statute may include a witness’s relocation or change of identity and other related assistance. A ‘witness’ is defined under s 1 of the Witness Protection Act as “any person who is or may be required to give evidence, or who has given evidence in any proceedings”. “Proceedings” means:

• Any criminal proceedings in respect of any offence referred to in the Schedule to the Witness Protection Act;
• Proceedings before a commission or a Tribunal;
• Proceedings under the Inquests Act 58 of 1959;
• Proceedings relating to an investigation conducted by the Independent Police Investigative Directorate; and
• Proceedings referred to in Chap 5 and Chap 6 of the Prevention of Organised Crime Act 121 of 1998.

The mandate of the Witness Protection Act is limited to persons who give evidence in court proceedings and does not extend to whistleblowers who are not witnesses in court proceedings. For example, a whistleblower who reports corruption but is not a witness in any subsequent criminal proceedings will not qualify for protection under this Act.  The President’s Response states that consideration will be given to expanding the Office for Witness Protection mandate to include whistleblowers who are not witnesses.

Various suggestions have been made including broadening the definition of the term ‘proceedings’ in this statute so that it includes matters relating to corruption so that whistleblowers who expose corruption in any form, whether or not they provide evidence in court, may fall within the scope of the Witness Protection Act and qualify for protection. These and other suggestions to legislation will be entertained at such a time when they are brought before the Portfolio Committee on Justice and Constitutional Development.

Chairperson,

It is vital to protect the identity of whistleblowers in court proceedings. It has been suggested in research that we draw lessons from s 1317AG(a) and (b) of the Australian Corporations Act. This provision protects whistleblowers’ identity in court proceedings in that they need not disclose to a court or tribunal either their identity or information that is likely to lead to their identification, nor need they produce to a court or tribunal a document containing their identity or information that is likely to lead to their identification. The only exceptions are where it is necessary to give effect to the whistleblower regime or where the court or tribunal thinks it is necessary to do so in the interests of justice.

It is important that government implement the protection offered in terms of Article 32 (2) of the UN Convention against Corruption.UNCAC is the only legally binding universal anti-corruption instrument. The purpose of this Convention is to “call for the penalization and criminalization of the most prevalent forms of corruption in both the public and the private sectors”. Each state party is obliged to establish anti-corruption bodies that can receive reports on corruption and which should also make provision

for anonymous reporting. Furthermore, witnesses and experts who give evidence regarding offences in terms of UNCAC and their family members are to be provided with protection against retaliation and intimidation.

There is a need to strengthen institutions such as the Public Protector, the South African Human Rights Commission, and the Financial Intelligence Centre. The budget needs to address these issues as these institutions are critical in our democracy.