Monray Marsellus Botha
6 minute read
27 Sep 2021
6:58 pm

Give whistleblowers a share of corruption money, and things will change

Monray Marsellus Botha

The US's Dodd-Frank Act provides for a reward of between 10% and 30% of amounts collected due to 'original information' received.

Picture: iStock

Numerous corruption scandals have been reported in South Africa in recent times. The extent of corruption in the country has been laid bare at the judicial commission probing allegations of state capture over the past three years. Corruption can impede a country’s economic growth, and undermine democratic principles, stability and trust.

Whistle-blowing is one of the mechanisms used to deter corruption. It plays a role in encouraging accountability, transparency and high standards of governance in both the private sector and public institutions. Whistleblowers help combat criminal conduct and should thus be afforded protection by the state. But South Africa’s system is flawed.

Recently, the country was shocked by the murder of a woman who had exposed corruption in the procurement of COVID-19 personal protective equipment.

As an academic, I’ve done work on the importance of whistleblowers in general, and on the possibility of paying incentives to people who blow the whistle on tax evasion.

This is one way in which the role of whistleblowers could be elevated. There are others too, such as harnessing special courts to try cases. For example, I support calls for physical security to be provided to whistleblowers and their families. I also believe that whistle-blowing should be made national strategic priority. This would enable the country to develop an environment for transparency and accountability.

Protection of whistleblowers

South Africa has seen a fair number of whistleblowers raising the alarm on irregularities and corruption. The outcome for the individuals in a lot of the cases point to the fact that they don’t get the protection they deserve.

Notable examples include Paul Theron, the prison doctor who exposed poor health conditions at Pollsmoor Prison in the Western Cape.

Dr Theron was suspended after he made the disclosures to parliament. He battled to get his case heard in the whistle-blowing process. But he finally ended up in the Labour Court. He was never reinstated.

There’s also the famous case of Mike Tshishonga, a civil servant who made serious allegations to the media about a former minister of justice and constitutional development. He was immediately suspended and subjected to a disciplinary inquiry.

The matter took many years to be resolved, ending up in the Labour Appeal Court.

The most notable recent case was the murder of Babita Deokaran. She had exposed corruption within the Gauteng province’s health department prior to her death.

It is evident from these examples that the South African whistle-blowing environment is failing to encourage people to come forward.

What’s in place

South Africa has various pieces of legislation and regulatory policy documents that cover corruption and whistle-blowing. They also provide for the protection of whistleblowers.

The most important of these is the Protected Disclosures Act 26 of 2000. The Act aims to encourage whistle-blowing in the workplace. It also seeks to create a culture that makes it easier to disclose information about criminal and other irregular conduct.

The Constitution, the Labour Relations Act and the Companies Act are also part of the whistle-blowing legislative framework.

For its part, the South African Competition Commission encourages “authorised whistle-blowing” on cartels involved in, among other things, price fixing and collusive tendering.

In addition, the Prevention and Combating of Corrupt Activities Act seeks to strengthen measures to prevent and combat corruption. It places a duty on certain people holding positions of authority to report certain corrupt transactions.

The Protected Disclosures Act lists the Auditor-General and the Public Protector as institutions that whistleblowers can disclose information to. Both are important in achieving the purposes of the Act and are equipped with specialists to deal with corruption and other illegal activities. But they should receive additional funding to do their jobs better.

South Africa’s regulatory framework is one of the best in the world. But there are gaps in the system.

Steps to strengthen the system

South Africa should consider setting up an independent whistle-blowing institution. This would help whistleblowers from the time they make disclosures. It could ensure:

  • the confidentiality of information flow
  • the protection of their identities
  • mapping the way forward for them.

This would enhance the current system. It would also showcase the important role these heroes and heroines play.

I also think that the country should consider using dedicated specialised courts and units that deal specifically with corruption and whistleblower protection. This would:

  • show that government is serious about dealing with criminal and illegal activities that have high social and economic costs
  • send a clear message that the full impact of the law will be felt by perpetrators and
  • show a serious commitment to upholding a value-system where whistleblowers are valued and protected.

Employers should have a zero-tolerance policy in dealing with corruption and other irregular activities. Internal procedures sometimes lack a proper commitment to follow up issues raised by whistleblowers. Often no feedback is provided or nothing is done.

I support the suggestion by the Open Democracy Advice Centre that the development of a “Code of Good Practice” would help. It sets out a full and considered guidance to private and public bodies on interpretations of the law, implementation of whistle-blowing policies, and alternative mechanisms for preventing corruption

In my research I support calls for the remuneration of whistleblowers. For example, they could be eligible for a financial reward based on the amount of tax revenue eventually collected.

Lessons can be learnt from the US, which has strong whistle-blowing protections. These include the False Claims Act which allows private citizens to file suit on behalf of government when they have evidence of fraud. Such citizens who recover money or assets are entitled to rewards for their efforts.

Another is the Dodd-Frank Act. It provides for a reward of between 10% and 30% of the amounts collected if an “eligible whistleblower” voluntarily provides original information.

These measures can be easily adopted by South Africa, where compensation is wholly inadequate. The compensation cap provided for in the Protected Disclosures Act in line with the limits under the Labour Relations Act is not sufficient. For example, in the case of an unfair labour practice the employee would be entitled to a maximum of 12 months’ compensation and in the case of automatically unfair dismissal to a maximum of 24 months’ compensation.

Another problem is that it only kicks in when the whistle-blowing employee has suffered an “occupational detriment”. For example, when a employee faces disciplinary action, dismissal, suspension, demotion, harassment, intimidation, or transfer against his or her will.

It is time for business and political leaders as well as civil society organisations to push harder for a system where speaking up is normalised and whistleblowers are adequately protected. And rewarded.

Monray Marsellus Botha, Head of Department & Associate Professor, University of Pretoria

This article is republished from The Conversation under a Creative Commons license. Read the original article.