There was an urgent need for a truth and reconciliation commission for whistleblowers, legislation to protect them and possibly the establishment of a Chapter 9 institution to deal with their issues, experts have suggested.
Currently, the situation is haphazard and legislative framework fragmented – exposing whistleblowers to victimisation by organisations they informed on.
During a webinar organised by the North-West University’s Business School under its think-tank series this week, a panel of experts, including professors, a lawyer, a forensic expert and an investigative journalist, discussed the plight of whistleblowers.
A general view among the panellists was that whistleblowers must be protected and that legislation governing them must be consolidated into an integrated legislative framework.
Advocate JJ du Toit, former lead counsel at Goldstone Commission and team leader with International Tribunal for the former Yugoslavia, suggested there was a need for new legislation – “basically a Chapter 9 institution to deal with this aspect”.
He added: “We got good intentions without our legislation, but the time has come now to consolidate these legislation, including proper definition of a whistleblower.”
Du Toit was supporting and reinforcing the views from the Helen Suzman Foundation and Transparency International.
He said civil society and journalists were more trusted by whistleblowers than the police.
“I think we owe them a lot of credit for that. It would be a mistake for the government not to involve the NGO community in this matter. It should be an inclusive process similar to Codesa or the Truth and Reconciliation Commission.”
According to forensic and general audit specialist, whistleblower and integrity activist Devoshum Moodley, the Public Disclosures Act was incorrectly linked to the Labour Relations Act which was about employer-employee relations. She said the law was not efficiently implemented because of this misplacement. “This brilliant legislation is not implemented in the private sector, not implemented in the public sector – it falls short. Individuals do not know about the content of the Public Disclosure Platform, it is a document that is not enforceable,” she said.
Moodley suggested the whistleblowing process should not take place inside an organisation as is currently the case. “I am of the view that you cannot report to individuals that are involved in criminal behaviour, so it should be left outside of an organisation,” she said.
Professor Monray Botha from the department of mercantile law at the University of Pretoria said there was need for legislation to address concerns based on the acknowledgement that corruption was on the rise.
Botha said whistleblowers were often victimised internally for speaking out against irregular activities in an organisation and therefore the legislation must protect them.
“I think we should start from scratch, we need a piece of legislation that is integrated and really address the concerns the fact that corruption and fraud and criminal activities are really rife in South Africa,” Botha said.