The law protecting whistle-blowers who have been crucial in exposing corruption needs to be strengthened and the department of justice & constitutional development has come up with recommendations on how this should be achieved.
The experience of whistle-blowers in SA is that they have not been supported, resulting in intimidation and financial hardship.
Key to the proposed amendments outlined in a discussion paper released last week by the department for public comment is the broadening of the scope of protection provided by the Protected Disclosures Act beyond its current restriction to the employer/employee relationship and also to provide for anonymous disclosures.
The discussion document notes that “since the Protected Disclosures Act is premised on the employer-employee relationship, it does not deal with harm which goes beyond work-related detriments. This means that issues such as blacklisting, bullying and harassment that occur outside work incidents are not covered by the Protected Disclosures Act. Additionally, threats that occur outside the workplace and legal costs are also not addressed by the act. These economic effects are often cited by whistle-blowers as some of the most difficult consequences to overcome.”
The proposed amendments will require any receiver of disclosed information to try their best to keep the identity of the whistle-blower confidential.
Burden of proof
The burden of proof will be on the person causing detrimental action on a whistle-blower to prove that he/she is not guilty rather than the whistle-blower having to prove the opposite.
A person who uses force, coercion, threats, intimidation or any other coercive means against another person with the intent to prevent disclosure will be guilty of an offence and be liable on conviction to a fine not exceeding R5m or to imprisonment not exceeding five years or to both.
A provision is also proposed for the interim payment of legal fees by an employer or client where the employee seeks recourse through the courts against detrimental action on account of protected disclosure where the prospects of success are in favour of the employee or worker.
Legal assistance by the state can be provided to a whistle-blower at the discretion of the minister, and a fund for whistle-blowers is proposed to assist those who have been dismissed.
A person or body defined in the proposals who receives a disclosure and does not act on it will be guilty of an offence and will be liable on conviction to a fine not exceeding R2m or imprisonment not exceeding two years.
Employers will be encouraged to be proactive in protecting their employees.
The proposed amendments will ensure that whistle-blowers receive the protection afforded by the UN Convention Against Corruption and that whistle-blowers have immunity from criminal or civil action arising from honest disclosures.
The proposals will grant greater authority to the SA Human Rights Commission in handling protected disclosures.
The department emphasises in the discussion document that the proposals are still in the early stages and will require further development before being drafted into an amendment bill. Additionally, a costing exercise will have to be conducted to determine the financial implications of the proposed changes.
The department conducted a comparative analysis of the whistle-blower regimes in the US, UK, New Zealand, Canada, Australia, Uganda, Namibia, Kenya, Tanzania and Ghana and also took into account criticism of SA’s dispensation by civil society groups and the Zondo commission of inquiry.
The commission identified whistle-blowing as an essential weapon against corruption and said whistle-blowers needed to be protected from victimisation, prejudice or harm.
Justice minister Ronald Lamola is working with stakeholders to establish a provisional framework to implement some of the proposed recommendations while the legislative process unfolds. The public has until August 15 to comment on the recommendations.
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