Whistle-blower Protection: Does South Africa Match Up? - Part II

Introduction

Part I of this brief series described South Africa’s legislative provisions for the protection of whistle-blowers - specifically, the Protected Disclosures Actⁱ (“PDA”). It also provided background to Transparency International’s Best Practice Guidelines for Whistleblowing Legislation (“TI Guidelines”). Part II will continue with comparing the PDA against the TI Guidelines, drawing attention to points of harmony and discord.

How certain must a whistle-blower be of the information disclosed?

Requirements for protection

Does a suspicion of wrongdoing suffice, or must the whistle-blower furnish hard evidence when making a disclosure? Whistle-blowers often do not have access to evidence that would confirm that a wrongful act has been committed. It is undesirable to expect or encourage them to investigate their suspicions themselves before making a disclosure. With this in mind, the threshold recommended by the TI Guidelines is for a whistle-blower to have a “reasonable belief of wrongdoing”. Even if that reasonable belief is later revealed to be unfounded, protection would still apply. It is important to distinguish this from knowingly false disclosures, for which there is no protection. The TI Guidelines recommend that appropriate sanctions should apply.

The PDA provides that whether or not a disclosure is clothed with protection is determined, firstly, by applying provisions regarding to whom the disclosure is made. A disclosure can be made to a legal advisor, an employer, a member of Cabinet or of a province’s Executive Council, institutions created in terms of chapters nine and ten of the Constitutionⁱⁱ, or the public at large (which would include the police, the media, and non-governmental organisations such as Corruption Watch).

Different requirements apply in relation to the persons who can receive the disclosure. For instance, a disclosure to a legal advisor is protected if it is made “with the object of or in the course of obtaining legal advice”ⁱⁱⁱ, whereas disclosures to employers must be made in good faith and in line with the employer’s whistle-blowing procedure^iv which can include use of third-party reporting mechanisms. If no such procedure is in place, then the disclosure can be made to the employer itself. In order to gain protection for a disclosure to a Chapter Nine institution, a whistle-blower must reasonably believe that information disclosed, and any allegation contained in it, is “substantially true”^v. Even more onerous requirements must be met for disclosures to the public^vi.

These provisions appear to accord with the “reasonable belief of wrongdoing” recommendation in the TI Guidelines. The system of prescribing differing requirements based on to whom the disclosure is made is, however, needlessly complex and burdensome on the whistle-blower, who may not have access to legal advice prior to making the disclosure. A preferable approach is set low thresholds for persons or authorities to accept disclosures (with such disclosures retaining protection) and emphasise the referral of reports of wrongdoing to the most appropriate authority. Protection should apply, provided the disclosure is bona fide. This part of the Act could therefore be revisited with a view towards simplification.

“No personal gain” requirement

The TI Guidelines recommend that legislation should not provide that a whistle-blower forgoes protection if he or she stands to gain something from the disclosure. This “no personal gain” requirement undermines the purpose of whistle-blower protections. While it may seem unsavoury for a whistle-blower to benefit from a disclosure, the fact remains that whether or not a whistle-blower obtains an advantage resulting from his or her disclosure has no bearing on whether the conduct reported was wrongful. The proper focus in protecting whistle-blowers is unearthing wrongful conduct. Benefits that may accrue to whistle-blowers following a disclosure are, strictly speaking, irrelevant.

The PDA includes a “no personal gain” requirement that applies to disclosures made to the public generally^vii. Therefore, in order for a disclosure to the public to be protected, the whistle-blower will firstly have to show that he or she believed the information reported to be substantially true and that he or she did not make the disclosure for the purposes of personal gain^viii. Next, the whistle-blower will have to show that the disclosure was reasonable and that one of four conditions relating to the disclosure applies. Examples of such conditions include a belief that he or she will be subjected to an occupational detriment if a disclosure is made to an employer or that the impropriety is of an “exceptionally serious nature”.

The TI Guidelines’ approach to disclosures made to the public at large is:

“whistleblowers should be protected for making public disclosures in cases of urgent or grave public or personal danger, or persistently unaddressed wrongdoing that could affect the public interest, without additional requirements”.

The PDA makes provision for disclosures to the public where the impropriety alleged is exceptionally serious but prescribes a number of requirements before protection is granted. Some of these – such as a belief in the truth of the information relied upon and the reasonableness of the disclosure – have utility. However, the “not for personal gain” requirement does not, and it should be removed from the PDA.

What protection is provided to whistle-blowers?

Anonymity and confidentiality

Whistle-blowers may require their identities to be protected pursuant to a disclosure. The TI Guidelines note that “one of the most efficient ways to prevent retribution against a whistle-blower is to ensure that potential retaliators do not know [the whistle-blower’s] identity”. This can be done by firstly, allowing for anonymous reporting, and secondly, even where the whistle-blower’s identity is known to the reporting authorities, maintaining confidentiality. Confidentiality should extend not just to the whistle-blower’s name, but also to any “identifying information” that may apply to him or her. Good practice requires the whistle-blower’s express consent for the disclosure of his or her information.

Worryingly, the PDA does not contain any specific provisions relating to confidentiality. Therefore, there is no mechanism in place to protect them in instances where their identities becoming public could cause them to experience harm in or out of their work environment, endanger their health or safety or that of people around them^ix. South African news archives are littered with stories of harassment and murder of whistle-blowers.^x The lack of a confidentiality regime for whistle-blowers is a significant omission in the Act and should be addressed by the legislature with some urgency.^xi

What conduct should whistle-blowers be protected from?

Unfair Treatment

The TI Guidelines note that fear of unfair treatment is one of the primary reasons that people do not report wrongdoing. But what is meant by “unfair treatment”? The TI Guidelines suggest that an exhaustive list should be avoided. Rather, if lists are used, they should be open-ended by making use of phrases such as “and any similar or related conduct”. Progressive legislation would go as far as to extend the employer’s responsibility to protect whistle-blowers from retaliation committed by third parties linked with the employer, as is the law, for example, in Ireland. Further, protection should ideally extend even after the employer-employee relationship has ended.

The PDA makes use of a closed list of harm, as listed in the definition of “occupational detriment”. This list refers to ten instances of harm in a work context, including being subjected to disciplinary action; being dismissed, suspended, demoted, harassed, or intimidated; being transferred against his or her will; being refused a reference or being provided with an adverse reference; and being denied appointment to any employment, profession, or office.

While this list is extensive, it is far from the best-practice provision contained in South Korea’s whistle-blowing legislation. This law not only includes a broad scope of potential harm (that goes beyond work-related detriments to include blacklisting, bullying, and administrative and economic disadvantages), but also makes it clear that conduct impugned by the law is not limited to that which is listed.

Threats to personal safety

In the absence of any specific provisions to protect the personal safety of whistle-blowers, South African whistle-blowers would have to make use of existing laws to obtain protection. This would include the ordinary criminal law and the Protection From Harassment Act^xii, in which “harassment” is described as engaging in conduct that that causes harm (or inspires the reasonable belief that harm may be caused) by stalking, attempting to talk to, or sending communication to the complainant.

This legal regime can be contrasted with Ghana’s Whistleblowers Act, which provides that whistle-blowers who have “reasonable cause to believe” that they or their family members are in danger, can request police protection, and the police shall provide the protection considered adequate. As highlighted above, whistle-blowers in South Africa face great risks to their personal safety. South African legislators should therefore give serious consideration to including a similar provision in our law so that police protection can be accessed quickly and easily.

Protection from legal action

Individuals may be deterred from speaking out for fear of breaching a confidentiality agreement or facing a law suit founded on defamation. The TI Guidelines are clear: “legislation should ensure that no one can contract out of the right to blow the whistle”. Thus, laws should provide that any clause excluding the operation of provisions for whistle-blower protection is void. They should also provide that a whistle-blower may not be subjected to detrimental action on account of having made a protected disclosure.

Even the possibility of facing legal action can be enough to deter whistle-blowers from raising the alarm – court proceedings are notoriously long, expensive, and daunting to those not acquainted with court systems and processes. Transparency International recommends that protection should consist of a waiver of liability. This means that no civil or criminal proceedings can be instituted against whistle-blowers in the first place. This is as compared to the “defence” approach, where the whistle-blower is able to raise a protected disclosure as a defence when charged with the breach of a legal obligation. The waiver of liability approach prevents the whistle-blower from being brought before court or a disciplinary proceeding in the first place, which is a more effective protection.

Ghanaian law provides for a waiver of liability, with a caveat: if it is proved that the whistle-blower knowingly made a false disclosure with malicious intent, he or she may be subjected to criminal or civil proceedings. This formulation strikes a balance in that it protects whistle-blowers from what can be vexatious and retaliatory litigation, but still allows the subject of the disclosure access to the courts. Importantly, the onus rests on the person bringing the action to show that the disclosure was false and ill-intended.

The PDA unfortunately makes use of the “defence” approach. This position should be reconsidered, particularly as the positioning of the onus in Ghana’s Whistleblower Act shows that it is possible to balance employers’ rights of access to courts with effective whistle-blower protection.

Consideration should also be given to providing protection to whistle-blowers where employers abuse court process by instituting civil or criminal action where the aim is simply to harass the whistle-blower. For example, the TI Guidelines note that French law provides for an increased civil fine for those who bring “abusive or vexatious criminal proceedings against a whistle-blower (for defamation)”.

Protection for employees who refuse to participate in wrongdoing

Employees should not be penalised for refusing to participate in wrongdoing. In the labour law context, such a refusal may put an employee at risk of retribution or discrimination. Another risk is that such behaviour could be characterised by the employer as insubordination or a refusal to follow orders.

Such employees may not necessarily be whistle-blowers: they are those who decline to participate in the wrongful conduct of their employers, at times under considerable pressure. The TI Guidelines recommend that an employee’s right to refuse to participate in wrongdoing should be respected and upheld.

The PDA provides that the exclusion of criminal or civil liability referred to above is not available to a worker or employee who participates in the disclosed impropriety. The provision in itself is reasonable – if a whistle-blower is involved in wrongful conduct, he or she should not escape liability. Blowing the whistle should not immunise anyone against the consequences of their actions.

Whistle-blowers would be able to find protection against occupational detriment in the PDA. However, his or her colleague who, for whatever reason, does not make the disclosure but who still stands up to his or her employer and refuses to participate in wrongful conduct, would find no protection at all. While existing labour law might protect against more egregious forms of detriment, such as dismissal, the wider protections in the PDA – such as being refused a reference, for example – would be unavailable. The law should be amended to give full protection against occupational detriments to those employees who refuse to participate in wrongful acts.

Conclusion

The focus of briefs I and II in this series have been on the substantive aspects of whistle-blower protections. Briefs III and IV will look at the procedural and systemic dimensions that apply when ensuring that whistle-blowers are protected and supported after making a disclosure.

Cherese Thakur

Legal Researcher

cherese@hsf.org.za