The passing of the controversial Protection of State Information Bill by the National Council of Provinces late last Thursday (29 November 2012) dealt a heavy blow to the corruption fight in South Africa, particularly to the plight of whistleblowers.
According to the legislation, individuals who blow the whistle on “corruption, malfeasance or wrongdoing by the State” can face a prison sentence of up to 15 years. Whistleblowers could also be charged under espionage clauses of the law, resulting in maximum sentences of 25 years, according to the Right2Know (R2K) campaign. R2K is an umbrella body of various organisations and activists who have been fighting the Secrecy Bill for the last two years.
State Security Minister Siyabonga Cwele told the National Council of Provinces ahead of the vote that there was no need to worry that the proposed legislation would target whistleblowers and those who expose corruption, but rather it would “deal with foreign spies who steal state secrets from the South African government”.
The Bill will now be referred back to the National Assembly, the higher house of Parliament, for further consideration.
“The National Assembly can either accept the changes made by the National Council of Province’s ad-hoc committee or reject them. If it accepts them, it will pass the Bill and send it to President Jacob Zuma to sign into law. If it rejects the amendments or wants further changes, it will have to re-establish an ad-hoc committee for another look,” Andisiwe Makinana reported in a Mail & Guardian online article after Thursday’s vote.
While all this paints a rather grim view of the future of whistleblowing in South Africa, The Open Democracy Advice Centre has shared some good news – in the form of a recently published manual on how the Protected Disclosures Act (PDA) can be used to protect employees who expose wrongdoing in the workplace.
More specifically, the manual is positioned to help shop stewards understand the PDA so they are able to assist aggrieved employees in making protected disclosures. It’s written in simple terms, devoid of legalese, and uses relatable examples to illustrate its points.
The manual encourages businesses to have their own robust whistleblowing policy, guided by the PDA, which clearly explains to employees what they should blow the whistle on and who they can report incidents to. Whistleblowing, in this instance, can be seen as a “risk management tool,” according to the manual, ensuring that unscrupulous acts in the workplace do not cost businesses contracts or customers.
A successful risk management system, the manual advises, must have a culture where employees are assured that the organisation takes protected disclosures seriously. Training on the whistleblowing policy should also be provided.
“Management must also keep whistleblowers’ concerns confidential, investigate their concerns and take appropriate action against wrongdoers. No fuss should be made about the whistleblower either negatively or positively. The emphasis should be on getting rid of the wrongdoing not on the whistleblower,” the manual states.
“For responsible businesses, having a positive whistleblowing culture means that organisations can focus on the core business, secure that any wrongdoing will be raised and dealt with,” it adds.
What is the Protected Disclosures Act?
South Africa passed the Protected Disclosures Act (PDA), also known as the 'Whistleblowing Law', in February 2001 to enable employees to expose wrongdoing in the workplace without being disciplined or punished for it.
“The PDA promotes the creation of a culture in which those wishing to speak out against crime and other wrongdoing at work can do so in a responsible manner and are provided with comprehensive guidelines for the disclosure of such information…” the manual reads.
In terms of benefits, the Act protects all employees challenging unlawful and irregular conduct at work from victimisation or dismissal. This applies to both the private and public sectors.
The PDA sets out what you can disclose, who you can disclose to and how to disclose, and explains how to get protection against arising victimisation or dismissal.
As a rule of thumb, employees need to know that their disclosure is protected when the correct procedure is used to blow the whistle on wrongdoing. Simply put, “disclosure + proper procedure = protected disclosure,” the manual states.
The first section of the PDA lists the actions that employees can blow the whistle on under the definition of disclosure:
• A criminal offence such as fraud, theft or assault
• Failure to comply with a legal obligation, for example not doing what you are legally compelled to do at work
• Miscarriage of justice where proper justice is purposely prevented, for example destroying court documents
• Endangering health and safety, such as abusing patients in hospitals or institutions
• Damage to the environment like the illegal disposal of waste
• Unfair discrimination such as that on the basis of race, gender, or disability.
Protected disclosure in terms of the Act does not apply, however, if employees blow the whistle on managers being incompetent, or not understanding how to run the business.