The draft Protected Disclosures Bill released on Thursday, providing for enhanced whistleblower protection, does not meet all the requirements for adequate whistleblower protection, South Africa’s leading anticorruption body, Corruption Watch, said.
While Corruption Watch’s attorney Nkululeko Conco welcomed the bill as a step forward in protecting whistleblowers, promoting transparency and enhancing accountability, he said various aspects of it require greater clarity, such as the revocation of protection in certain circumstances.
“We are pleased that the financial burden of making disclosures has been considered and legal assistance as well as an award have been proposed, but these areas require further consideration,” Conco said.
Clarity was also needed on how the bill interacted with other legislation, which includes the protection of whistleblowers, such as in the Companies Act.
“The bill still seems to apply primarily in an employer-employee (and perhaps third-party contractor) scenario and does not clearly cater to disclosures to the media which keeps the scope of protection narrow,” Conco said.
Stellenbosch University PhD student Devoshum Moodley-Veera, who is specialising in whistleblower protection, law and ethics, said the bill falls short of civil society recommendations as it does not provide for the creation of a dedicated, independent whistleblower ombud to handle complaints.
The bill provides for a retired judge reporting to the minister to handle complaints but she said an institution with the necessary professional expertise is required.
Moodley-Veera said the bill also does not give whistleblowers the choice about where they report allegations of corruption ― such as the ombud, media or civil society institutions such as Corruption Watch ― but specifies where this has to be done.
Other weaknesses Moodley-Veera identified were that while assistance by Legal Aid South Africa is provided for by a court order, its assistance is only given to the unemployed. The bill’s provision for legal assistance is insufficient, she said.
Whistleblowers have suffered for disclosing corruption, enduring suspension and dismissal, imposing financial hardship on them and their families. Several have been murdered, including Babita Deokaran, who blew the whistle on corruption at Tembisa Hospital. This was the experience of whistleblowers at the National Lotteries Commission and South African Revenue Service, for example.
The draft Protected Disclosures Bill released by justice & constitutional affairs minister Mmamoloko Kubayi on Thursday gives effect to recommendations of the Zondo commission of inquiry into state capture, which found that the country’s law on whistleblower protection was weak, as well as recommendations of the National Anti-Corruption Advisory Council.
Weaknesses identified in the existing legislative regime include the absence of clear procedures for handling disclosures, insufficient protection for whistleblowers and a lack of systems to ensure that disclosures are effectively received and acted on.
At a media briefing on the bill on Thursday, deputy justice & constitutional development minister Andries Nel said whistleblowers will not be offered upfront incentives or rewards for disclosing corruption but could receive a percentage of the monetary sanction imposed by a court on a convicted employer.
Public servants excluded
Nel said that the courts could award a maximum of 25% of the court-imposed sanction to a whistleblower except public servants, those who provided information as part of a plea agreement, accomplices and employees of law enforcement agencies or paid informants. If there is more than one whistleblower, the award could be divided among them.
Cosatu parliamentary liaison officer Matthew Parks opposed the exclusion of public servants from the reward as a “fundamental flaw” in the bill, as particularly junior public servants vulnerable to victimisation have to be incentivised to blow the whistle. The exclusion, he argued, should be limited to heads of department and senior management.
The bill explicitly prohibits occupational detriment or any form of retaliation and places the burden on the employer or relevant party to prove that any action taken was not linked to the disclosure.
Kubayi said the draft bill seeks to establish a secure reporting channel, protection from retaliation, support throughout the process and the efficient handling of disclosures.
The bill prohibits disclosing the identity of a discloser or any information that may lead to their identification without their consent, except where strictly necessary for handling the disclosure. A breach of these confidentiality provisions constitutes a criminal offence.
Protection is also provided for whistleblowers and their families under the Witness Protection Act.
The draft bill also introduces a complaints mechanism overseen by a retired judge designated by the president in consultation with the chief justice. It will allow disclosers or related persons to lodge complaints if disclosures are not properly handled, if retaliation occurs, or if confidentiality is threatened and empowers the judge to investigate and refer matters for appropriate action.
Breaches of legislation are criminalised, including the suppression or concealment of evidence during an investigation, the unlawful disclosure of information or the identity of a discloser and subjecting a discloser to occupational detriment or detrimental action. These offences attract serious penalties, including fines and imprisonment of up to 10 or 15 years depending on the nature of the offence.
A disclosure is a protected disclosure if it is made in addition to government and state institutions, to employers, legal practitioners and statutory bodies such as the public protector. All employers will be required to develop procedures for receiving and managing disclosures, including the designation of an official responsible for handling such disclosures.
Kubayi said provision was made for the establishment of a central database for disclosures to be managed by her department.
“The bill strengthens timelines and accountability in the handling of disclosures. Disclosures must be acknowledged within five days, decisions taken within 10 days, and investigations completed within 12 months, subject to limited extensions. The central database will enable tracking, monitoring and accountability in ensuring compliance with these timelines,” she said.
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