“If we do not look after these whistle-blowers during state capture, they won’t be around next time. We must assure that they are properly protected.”
So said chief justice Raymond Zondo at a conference in Johannesburg in 2022 amid calls from various whistle-blower bodies to strengthen protection for them in SA. He was talking a year after the 2021 assassination of health official Babita Deokaran outside her home. Part of the chief justice’s state capture report concerned recommendations pertaining to whistle-blowers.
For example, the report noted that while existing legislation, most notably the Protected Disclosures Act, focused on situations where a worker can disclose their employer’s unlawful acts, there were shortcomings. It noted that there was no clear procedure for whistle-blowing nor guaranteed protection. Whistle-blowers obtained no incentive to blow the whistle.
The department of justice & Constitutional Development recently seemed to take some of that to heart, as it released proposed reforms to whistle-blowing legislation. It made a number of recommendations. It proposed an expansion of the Protected Disclosures Act “to cover more than just employer-employee relationships”, as it stands now. This widens who can blow the whistle.
It also recommended a fund should be created to support whistle-blowers who have been dismissed so they have support and thus incentive.
The department proposed clearer guidelines and procedures on reporting, as well as clarity in witness protection laws to protect whistle-blowers who come forward. It sought to provide better confidential protection of the disclosure among numerous other recommendations, such as legal assistance, and criminal offences for a body not acting on a disclosure or someone intimidating whistle-blowers.
As the department said in a statement: “These recommendations are designed to create a comforting and supportive environment for whistle-blowers, encourage accountability and transparency, and inspire more people to speak up against fraud and corruption in our society.”
This is encouraging, especially as the department took to heart the whistle-blower bodies themselves as well as functioning systems from other countries. Of course, it is not enough — certainly not to combat or prevent corruption or state capture.
Indeed, just recently Zondo indicated his lack of faith in parliament to stop another wave of state capture. Parliament is a powerful element in the machine maintaining the health of our country. There is no point in having the world’s best whistle-blower protection if the government itself can be “captured”. Combating corruption will never be solved with only part of the machine fixed. That is why the state capture report dealt with so many cogs that are supposed to keep SA functioning.
A transparent government is central to our new constitutional order. The rule of law is meant to be light shining through the prism of our constitutional ideals, allowing us to ascertain the trajectory of good governance. Corruption stains this. Whistle-blowers are, but should not have to be, brave people, pointing to the darkened parts.
All of SA benefits from protecting them, because we must operate in the full glare of our goals, not under the shadow of those who seek to corrupt.
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