When SA hosts the G20 leaders summit in November in Johannesburg the world will be watching diplomacy and potential trade deals in action, but more importantly also our commitment to integrity.
SA will promise transparency, accountability and reform. Yet at home those who expose corruption are often stripped of their safety, careers and sometimes their lives — what is called the “whistleblower’s cross”, resulting in job harassment, ostracism, unemployment and ultimately threat to security.
The 2021 assassination of Babita Deokaran, who exposed millions in alleged irregular payments at Tembisa Hospital, remains a scar on SA’s national conscience. More recently the killing of Pamela Mabini and Bouwer van Niekerk showed that the risk has not receded. Until the government walks the talk on protecting whistle-blowers, any claim to good governance rings hollow.
A widely held view is that SA treats whistle-blowing as if it were a human resources problem rather than a constitutional or legal duty. The myriad laws regulating whistle-blowing still regard corruption as a workplace grievance instead of a breach of public trust.
Yet corruption does more than rob the state of money. It degrades health systems, undermines law enforcement, drains public confidence and erodes the rule of law. Whistleblowers are not troublemakers. They are guardians of democracy who pay the cost so that millions may live better.
A system built to silence
Today we rely on statutes such as the Protected Disclosures Act, limited provisions in the Companies Act, and the witness protection programme.
Together they form a fragile net with many holes. Contractors, volunteers, students, civil society actors, community whistle-blowers — all often lie outside protection. For those who are covered, confidentiality is weak and the process is slow. Protection is intermittent and remedies are weak. Retaliation remains common and brutal.
The effect is certain: silence. Fear. Corruption left unchecked. And the cost is high.
What the world expects
The Organisation for Economic Co-operation and Development (OECD) has urged SA to establish a centralised whistle-blower institution and to consider incentives for those whose disclosures lead to prosecutions or recoveries. Investors worry about jurisdictions in which wrongdoing is exposed at great personal risk.
International credibility is tarnished. When the world gathers for the G20, an opportunity for moral leadership exists but rings hollow if we still fail to protect those who tell the truth. There is a pathway forward though.
The National Anti-Corruption Advisory Council has proposed an Office of Public Integrity. Within that entity parliament should establish a Public Interest Disclosures Commission.
This must become the single front door for disclosures, bring independence and capacity, and have the power to issue protection orders quickly refer matters to law enforcement and monitor retaliation.
Protection must be real
Simultaneously we need a new Whistle-blower Protection Act to replace or significantly upgrade the Protected Disclosures Act. That statute must expand coverage beyond employees protect family members guarantee anonymity safe harbour to media in urgent cases reverse the burden of proof in retaliation cases and establish strong penalties for those who retaliate.
Internal hotlines alone are not sufficient. When internal channels are captured or compromised whistle-blowers must be able to go outside safely.
Protection also demands resources. A statutory whistle-blower justice fund should be established to provide legal aid relocation support psychosocial care and income replacement. This fund could be financed partially by recovered proceeds from corruption so that truth-telling helps fund its own protection.
Justice delayed is justice denied
In light of trends elsewhere, for years I have recommended financial compensation of whistle-blowers. Speed is essential. We need what some have termed a Golden Hour Protocol.
Once a disclosure is certified risk must be assessed within 24 hours, protective measures triggered, and any retaliation halted. Labour forums or relevant courts must prioritise cases with interim relief including reinstatement or salary protection in days. Delay kills safety.
To bring this home it is worth recalling words from Deokaran’s brother, Rakesh. Speaking at a memorial service in August this year he said: “My sister’s assassination was brutal, but her memory lives on as an example for everyone to do the right thing. We demand justice for those responsible for her murder. I also hope South Africans follow her example and stand up for what is right. We need more people like her.”
Her death is painful proof of what happens when our systems fail.
There will be objections. Some will claim incentives will lead to false claims, and of course there must be safeguards. False disclosure should be penalised. Only recoveries or convictions should unlock rewards. Others will say we cannot afford this. The larger truth is that we are already paying dearly through broken services, lost investment, mismanaged health, systems degraded, and public trust and lives lost.
This is about constitutional maintenance. Section 195 of the constitution requires public administration to be transparent accountable and ethical. When public institutions falter, whistle-blowers uphold that constitutional duty. An attack on them is an attack on the rule of law itself.
Deokaran and Mabini stood up for integrity. They paid a price we should not have to pay. If we succeed in building a system that protects not just those who talk but those who act, we will affirm our constitution and show global leadership. If we fail, we betray everything we claim to be.
Protecting whistle-blowers is not charity. It is survival. It is credibility. And it is the duty of a state that calls itself democratic.
• Malunga is academic head at Regenesys Law school.
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