By: Liezl Groenewald

South Africans have recently again been made aware of the poor treatment whistleblowers receive. In their testimonies at the State Capture Inquiry during March 2021, two specific whistleblowers, a former partner at Bain SA, Athol Williams and former Trillian Management Consulting CEO, Bianca Goodson, brought the plight of whistleblowers to the attention of not only Deputy Chief Justice Raymond Zondo but also the nation.

In reaction to Goodson’s breakdown during her testimony, Zondo expressed his concern about the lack of protection to whistleblowers and his interest in evaluating the adequacy or otherwise of protection of whistleblowers in South Africa. Later in March, in reaction to Williams’ appeal to the Inquiry to provide protections for whistleblowers, Zondo reaffirmed that strong protection for whistleblowers is needed in South Africa. These remarks led to a spike in discussions in the social and other media about the current lack of protection and the detriments generally suffered by whistleblowers. Some commentators did, however, express the hope that Zondo’s interest in the matter might lead to action in terms of the development of an effective national whistleblower protection policy. In many people’s view, Zondo became a swallow with the potential to make a summer.

But what should whistleblowers be protected from? Discussions with, and testimonies from, whistleblowers make it clear that there are numerous ways in which organisations mistreat those employees who have exposed wrongdoing in their midst. The Protected Disclosures Amendment Act (Act 5 of 2017) (PDA) states that employees are protected against occupational detriment, where the latter is defined as the threat or the carrying out of actions that may harm the employment status of an employee or worker in response to their making a protected disclosure.

These actions are any disciplinary action, dismissal, suspension, demotion, harassment or intimidation, transfer against an employee’s will, refusal of or provision of an adverse reference, disadvantageous alteration of a term or condition of employment or retirement; denial of appointment to any employment, profession, or office, and subjection to a civil claim for the alleged breach of a duty of confidentiality arising from the disclosure of a criminal offence or a contravention or failure to comply with the law. Besides, the Act protects whistleblowers against “being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities, work security and the retention or acquisition of contracts to perform work or render services.”

Theoretically, it should therefore not have been necessary for a whistleblower interviewed by Fuchs and Groenewald (2018 – 2019) to state that “you get targeted, bullied, emotional blackmail [sic], emotional abuse – everything to get rid of you as soon as possible”. Neither should it have been necessary for Williams and Goodson to become unemployed and “unemployable”. If the protection legislation in South Africa was effective, no whistleblower should be victimised in any form.

What is often forgotten is that whistleblowers also suffer consequences not contemplated by the PDA and that are external to the working environment. Williams alluded to some of these: “… one of the hardest things when being a whistleblower is feelings of alienation. You feel alone. You feel abandoned. My business buddies turned their backs, every friend I had at Bain turned their backs on me”. Goodson has, on various platforms, stated that she suffers / suffered from major depression and post-traumatic stress disorder, her family was negatively affected, and her finances ruined. These detriments are echoed by others who have taken a stance against unethical conduct. Other whistleblowers, such as Xola Banisi (who spoke up about corruption concerning two tenders at Bloem Water) and Moses Phakwe (ANC municipal councillor, who had attempted to expose corruption in the Municipality), have both been gunned down because of their moral courage to blow the whistle.

From my reading, the PDA is a good piece of legislation. There are, however, several reasons why the PDA seems to be ineffective in protecting whistleblowers. These are (1) organisations do not heed the Act; (2) do not create awareness about the provisions of the Act among their stakeholders; (3) do not act on their promises regarding the protection of whistleblowers against retaliation as communicated through their whistleblowing policies; (4) do not act against victimisers; and (5) do not provide holistic support to whistleblowers that include access to, for example, psychological and legal services. These reasons will be explored at another time.

The question now is whether another amendment of the PDA will result in better protection of whistleblowers in South Africa. How can our protection legislation address detriments such as ostracization, loneliness, depression, financial bankruptcy, becoming unemployable, and death? Broad protection and assistance by an independent organisation or institution are required such as being provided by Huis Voor Klokkenluiders, the Dutch Whistleblowing Authority, the Platform to Protect Whistleblowers in Africa (PPLAAF) and the newly established Whistleblower-Herz, Germany’s first non-profit whistleblower support organisation. These organisations provide general advice to whistleblowers, investigation of reports, legal counsel and financial support, assistance with the preparation of their testimonies to relevant authorities and evaluating risks they face when promoting their cases on national and international media. A glaring gap in the offered services exists, however, in so far as it concerns the provision of psychological support.

By establishing an independent organisation like the aforementioned in South Africa, many detriments suffered by whistleblowers, including occupational detriment, can be prevented and/or addressed. Deputy Chief Justice Raymond Zondo is but one swallow in a position of authority who spoke out about the lack of protection for whistleblowers. This is indeed a reason for celebration. However, South Africa cannot rely on him alone to effect changes. A concerted effort by several role players is required to lobby for the establishment of a whistleblower protection organisation funded by, for example, corporate South Africa or a philanthropist. One swallow does not make a summer.

References:

Fuchs, K. and Groenewald, L. 2018 – 2019. Personal interviews with whistleblowers.

Ngatane, N. March 2021. Williams appeals to Zondo inquiry to provide protection for whistleblowers. 24 March. [Online] Available at https://ewn.co.za/2021/03/24/williams-appeals-to-zondo-inquiry-to-provide-protection-for-whistleblowers. [Accessed on 19 April 2021].

Mawande AmaShabalala, M. 2021. Protecting whistle-blowers ‘critical’ in corruption fight, says Zondo after witness breaks down at commission. 4 March. [Online] Available at https://www.timeslive.co.za/politics/2021-03-04-protecting-whistle-blowers-critical-in-corruption-fight-says-zondo-after-witness-breaks-down-at-commission/. [Accessed on 19 April 2021].

Liezl Groenewald is a Senior Manager: Organisational Ethics Development at The Ethics Institute. She is also the author of the Whistleblowing Management Handbook.