SA whistleblowers call for reform of Protected Disclosures Act

South Africa’s whistleblowers are no longer suffering alone. 

At least 22 people who lifted the lid on corruption at their workplace have come together under the banner, Whistleblowers for Change to call for a fundamental reform of the Protected Disclosures Act (PDA), among other things.

The Mail & Guardian previously reported that one of the criticisms of the Act is the assumption that an employer and whistleblower’s interest are the same; they both want to deal with corruption in the interest of the entity.

It also falls under the scope of the workplace relationship in that protection means preventing “occupational detriment” in which a whistleblower loses their job or status in an entity but fails to recognise other threats that warrant protection, such as assassinations and harassment outside the workplace. 

The Active Citizens Movement raised this in its written submission to the Zondo commission of inquiry into state capture.

Whistleblowers who had appeared at the commission held a media briefing at the Women’s Jail at the Constitution Hill Human Rights Precinct, Johannesburg, on their calls for law reforms. Chief among these is the introduction of compensation to a whistleblower for loss of livelihoods, income, life savings, pensions and reputations. 

Their recommendations include:

The introduction of an expanded list of people to whom a whistleblower contemplating making protected disclosures may go;
People to whom such disclosures are made must be given the legal obligation to ensure confidentiality and adequate protection against harm for the whistleblower;
To bring legislation in line with article 32 (2) of the United Nations Convention Against Corruption, which suggests that all signatory states provide for establishing procedures for the physical protection of such people, such as relocating them and permitting them, where appropriate, non-disclosure or limitations on the disclosure of information concerning the identity or whereabouts of such people; and
An authority or agency that can determine a format and procedures for disclosure to the authority. Such procedures should be widely published so that the mechanism for making disclosure is simplified for prospective informants and is readily ascertainable by them.

The first of the Zondo commission’s three state capture reports recommends that “a fixed percentage of monies recovered should be awarded to the whistle blower provided that the information disclosed by the whistle blower has been material in the obtaining of the award”.

But signatories to the whistleblowers’ statement said they were against turning whistleblowing into an enterprise. 

“We are loath to support a system that encourages bounty hunting such as the American system of incentivised disclosures based on a percentage of recouped funds after successful prosecutions. We support a system of award based on the quantification of damages and losses suffered and or incurred [by the whistleblower] and as such we are more inclined towards the European whistleblower provisions that lean in this direction,” they said.

They said law firms and some advocates had been complicit in state capture by knowingly being involved in litigation “that has little, if any, inherent merit but is conducted for the principal purposes of distracting, harassing and impoverishing whistleblowers and dissuading other people from blowing the whistle and exposing wrongdoing of clients represented by such the law firms”.

In addition, they have called on the JSE to establish its own whistleblowing channel for the public and have welcomed Zondo’s recommendation for a state anti-corruption agency with a whistleblower division. 

“This would also minimise the harm to investors, better preserve the integrity of South African capital markets, and more swiftly hold accountable those responsible for unlawful conduct,” they said.

Martha Ngoye, the suspended head of legal risk and compliance at the Passenger Rail Agency of South Africa, told Friday’s briefing that although the president had spoken of the protection of whistleblowers at the state capture commission, the pace had been slow.

“What has been done since then? In the meantime Babita Deokaran has lost her life,” she said. 

“We have to suffer the consequences of appearing at the state capture. In some instances we were subpoenaed. Without having gone there our lives would have been very different.”

Bain & Co employee Athol Williams, who fled South Africa, and a fellow whistleblower in Greece, as well as former employees of parliament joined the briefing virtually. They said they hoped the next two Zondo reports would hone in on the legislature’s role and failure to stop state capture. 

Williams called on Bain & Co, which has maintained its innocence despite Zondo’s adverse findings against the company, to come clean. 

“They must admit to the full harm they did at Sars [South African Revenue Service],” Williams said, adding that it was “sheer arrogance” for Bain & Co to decide what it was going to do about the findings.