LEGAL ROUTES AVAILABLE TO THOSE WANTING TO BLOW THE WHISTLE
By Zunaid Lundell & Maricia Smith
INTRODUCTION
Edward Snowden once stated that “The sad truth is that societies that demand whistle-blowers be martyrs often find themselves without either, and always when it matters the most…”. Many people have an inherent moral code that pushes them to speak out about improper conduct, but these individuals may not always understand the legal and political ramifications of making a protected disclosure or the different ways in which they can make a disclosure to ensure their anonymity and safety once the disclosure has been made. This article aims to equip persons wishing to blow the whistle with the knowledge of the different routes in which a disclosure can be made and how the different routes ensure their safety and protect their interests.
The Practical Guidelines for Employees published by the Minister of Justice and Constitutional Development in 2011, categorizes section 5 to section 9 of the Protected Disclosures Act No. 26 of 2000 (PDA) reflecting the different routes that employees can follow to disclose information.[1] These different routes can be categorised into internal and external disclosures. Internal disclosures are disclosures made within a company, organization or governmental body by an employee who is employed by that same entity. External disclosures are made by an employee of a company to an external party such as a journalist, police officer or regulatory body regarding the improper conduct of a company or any of its employees. The different categories have their own requirements and risks linked to them.
All routes are subject to the requirement that disclosures are made in good faith and with a reasonable belief that the information being disclosed is true.
INTERNAL ROUTES
Route 1: Disclosure to an Employer (Section 6(1)(a) and (b) of PDA)
Companies, and in particular public companies and state owned companies are required to have an authorised procedure that employees may follow as part of their whistleblowing/anti-corruption policy.[2] For employees of a company wishing to highlight improper conduct the first step would be to make a disclosure in terms of the whistleblowing policy of the company, if one exists, and provide the information to the company as required in terms of the policy.[3] This is usually done by either contacting an anonymous hotline via telephone or email or providing the information to one’s direct line manager. This procedure varies from company to company.
It is important for the employee making the disclosure to keep a written record of the steps taken by such employee and to retain copies of the whistleblowing communication. This information will play a critical role in establishing evidence of the methodology and substance of the protected disclosure. An example of keeping a communication trail could take the form of sending a follow-up email to that employee’s direct line manager to confirm that a verbal conversation was held regarding the improper conduct of another employee. If the employee is concerned about her anonymity, we suggest that she record her conduct of making an anonymous tip off per the company’s procedure by detailing (i) the substance of the protected disclosure, (ii) the procedure followed to make the protected disclosure and (iii) the channel used to make the protected disclosure. In many whistleblowing cases, employees allege that they are suffering occupational detriment due to the disclosure that they made but have no proof of the disclosure. This is because the person making the protected disclosure makes the disclosure verbally or through an anonymous channel which is not backed up or recorded.
If a company does not have a whistleblowing policy, the PDA provides that any disclosures made to the employer by the employee will be regarded as a protected disclosure.[4] This provision is vague as the definition of ‘employer’ is broad. The Companies Act 71 of 2008 provides more guidance in this regard. The Companies Act lists the responsible persons in a company to whom the disclosure can be made as the following; (i) a director; (ii) a prescribed officer; (iii) a company secretary (iv) a person performing the function of internal audit, and (v) a board or committee of the company concerned.[5] Therefore if no disclosure procedure is provided by a company and a disclosure is made to one of the previously listed individuals or groups of individuals, the disclosure by the employee will be presumed as a protected disclosure.
It is important to note that the information, provided by a person making a protected disclosure to a responsible person listed in the section 159(3)(a) of the Companies Act, is not protected by confidentiality. The responsible person may pass the information to an individual, committee or department that deals with audit control or protected disclosures, even without having obtained the permission of the disclosing employee.[6]
Once a disclosure is made to the company, the company should acknowledge in writing, within 21 days to the disclosing employee, the receipt of the disclosure and decide whether to investigate the matter internally or refer the disclosure to another person or body who could deal with the information more appropriately.[7] The company has a duty to the disclosing employee to update such person regularly about the progress of the investigation into the improper conduct highlighted.[8]
EXTERNAL ROUTES
Route 2: Disclosure to Cabinet or Council (Section 7(a)-(c) of the PDA)
In government, the Ministers of Cabinet or a Premier of an Executive Council of a province frequently appoints an individual, body, or another organ of state to complete a public service task. Where any employee of an appointed individual or body encounters corruption or improper conduct that employee may approach the relevant Minister or Member of the Executive Council (MEC) to disclose information regarding the improper conduct.[9] The employee of an organ of state should approach the relevant Minister or MEC to whom the area of responsibility is applicable.
The PDA does not place any obligation on the Minister or MEC to provide the disclosing employee with updates regarding the investigation into the information disclosed but the Public Service Act no 103 of 1994 allows for the procedures concerning a complaint or grievance concerning an official act or omission to be investigated by the Public Service Commission by reporting it to the relevant authority.[10] If the complaint or grievance is not resolved to the satisfaction of the employee, that executing authority must submit the complaint to the Public Service Commission.[11]
Route 3: Disclosure to Prescribed Bodies (Section 8(1)(a)-(c) of the PDA)
Another route that individuals wishing to make protected disclosures have is to make a protected disclosures to specific bodies which include the Public Protector, the Auditor-General, the Commission for Gender Equality and the Public Service Commission. Section 8(1)(c) of the PDA also allows individuals to make a disclosure to a person or body which that individual reasonably believes regularly deals with the relevant impropriety concerned. For example, reporting insider trading to the Johannesburg Securities Exchange (JSE), collusion to the Competition Commission and reporting human rights violations to the Human Rights Commission.
The risk of this route is that the Act allows these types of persons or bodies to decline to investigate the improper conduct reported to it if it believes that another organisation would deal more appropriately with the issue.[12] This may lead the person repeatedly being directed between organisations and the fraud not being appropriately investigated.
Route 4: Disclosure to the Media or South African Police service or ‘any other person’ (Section 9 of the PDA)
The last route for an individual to pursue to make a protected disclosure is what is called the ‘General Route’. It is provided for in Section 9 of the Act. This provision enables individuals to make protected disclosures to any person, for example the member of the press or a police official of the South African Police service (SAPS).[13] This route is often taken where the individual had already made a disclosure to his or her employer and the employer took no action. We suggest that a person wishing to make a protected disclosure in this circumstance consult with an attorney suitably qualified and specialised in handling protected disclosure matters.
The danger of taking this route is that should the disclosure be scrutinized in court it would need to meet higher legal standards than the other routes mentioned in this article. To explain, the individual making the disclosure would need to prove amongst other things that the disclosure was not made for personal gain, that the individual believed that it was reasonable to make the disclosure and would need to prove that either he or she believed that they would be subjected to an occupational detriment if the information was provided to his or her employer or believed that the information would be concealed if they had provided it to the employer.[14] If not able to prove the above, the individual would have to prove that the malpractice or impropriety was of an exceptionally serious nature.[15] The court would still then need to determine whether the disclosure was reasonable and only if reasonable would the disclosure then be protected.[16]
Route 5: Disclosure to a Legal Advisor (Section 5 of the PDA)
An individual may in the course of obtaining legal advice disclose improper conduct to a legal practitioner.[17] Interestingly enough the courts have confirmed that good faith is not a requirement for disclosures to a legal practitioner.[18] Individuals frequently only consult with legal practitioners after they have already made a protected disclosure and have suffered some form of occupational detriment by the relevant company or alleged corrupt official involved. A legal practitioner would be able to advise an individual on the possible next steps that can be taken. In addition, a legal practitioner will attract the ethical duties and moral cover of the legal profession which the protected discloser may require. An attorney will also be able to guide the protected discloser to the correct channels and institutions, and possibly institute proceedings to compensate the individual for the loss of income or damage to dignity or reputation that he or she has experienced due to making the protected disclosure.
CONCLUSION
From recent media publications, it is clear that many South African whistle-blowers have experienced extreme emotional and financial suffering after making a disclosure. Many have also highlighted after the fact that they were not aware of the different routes available to them while making the disclosure. It is therefore important to empower civil society by informing them of the different avenues in which they can expose corruption while also protecting their interests and ensuring their safety.
References:
[1] Department of Justice and Constitutional Development, Practical guidelines for Employees in terms of section 10(4)(a) of the Protected Disclosures Act, 2000 (Act No. 26 of 2000) Government Gazette (31 August 2011) No.34572, No. 702 pages 3-27.
[2] Section 6(2)(a)(i)(ii) of the Protected Disclosure Act No 26 of 2000 (PDA) and section 159(7) of the Companies Act No 71 of 2008 (Companies Act).
[3] Section 6(1)(a) of the PDA.
[4] Section 6(1)(b) of the PDA.
[5] Section 159(3)(a) of the Companies Act.
[6] P A Delport & Q Vorster ‘Section 159’ in Henochsberg on the Companies Act 71 of 2008.
[7] Section 3B of the PDA.
[8] Section 3B(3)(a) of the PDA.
[9] Section 7 of the PDA.
[10] Section 1 of the Public Service Act No 103 of 1994.
[11] Supra Note 1, Department of Justice, page 12.
[12] Section 8(2) of the PDA.
[13] Supra Note 1, Department of Justice page 9.
[14] Section 9(1) and section 9(2) of the PDA.
[15] Section 9(2)(d) of the PDA
[16] To determine the reasonableness of the disclosure the courts would examine the factors listed in Section 9(3) of the PDA.
[17] Section 5(a) and (b) of the PDA.
[18] Tshishonga v Minister of Justice and Constitutional Development and another [2007] 4 BLLR 327 (LC) para 197.
