Blowing the whistle on corruption in a company, or on the abuse of public resources within government, is both an act of great bravery and one that enjoys little protection in our country – physically, professionally, from those in legal jobs, or in the employment setting. What can be done, asks Charles Edelstein of Executive Placements.
“Whistleblowing is a courageous act, but not always the best option due to the potential risks and consequences,” advises director: CGF Research Institute (Pty) Ltd, Jené Palmer. In her 2023 article, “The Corporate Governance Framework® – an alternative to whistleblowing”, she writes that while whistleblowing can be a positive force for change, citizens and employees do not always feel sufficiently safe to speak out.
Terry Booysen, CEO of CGF Research Institute (Pty) Ltd, notes that whistleblowers such as Babita Deokaran, Athol Williams, and Andre de Ruyter are a testimony to the grave risks employees endure when embarking upon the act of blowing the whistle on illegal acts, and unacceptable workplace behaviour.
“A digitised governance framework offers a transformative solution. By providing real-time transparency into control failures and procedural lapses, the burden of exposing misconduct is shifted from individuals to the system itself.”
Booysen’s take is that this not only protects employees from retaliation, but also drives systemic accountability – making it harder for corruption to hide. “The real challenge lies in overcoming cultural resistance from corrupt leaders who thrive in opacity. Even a flawless governance framework can be undermined if those at the top refuse to implement a combined assurance process, to help verify the robustness of that organisation’s systems of controls,” he enthuses.
To succeed, Booysen believes we need independent oversight, public escalation mechanisms, and consequences for inaction. Only then will it be possible to relieve whistleblowers of their perilous burden, and to foster a governance culture that serves the public good rather than shielding the powerful.
Palmer and Booysen’s sentiments concur with the Afrobarometer on whistleblowing:
• 72 percent of respondents fear the retaliatory consequences of whistleblowing;
• only 25 percent would report on corruption without fear; and
• the remaining respondents opted not to answer the question.
To help align our whistleblower playing field in South African with that in action overseas, the Helen Suzman Foundation has made a useful comparison between Transparency International’s Best Practice Guidelines for Whistleblowing Legislation (TI Guidelines), and South Africa’s Protected Disclosures Acti (PDA).
Internationally, TI Guidelines state that “one of the most efficient ways to prevent retribution against a whistleblower is to ensure potential retaliators do not know [their] identity”. Unfortunately, the PDA does not contain any confidentiality provisions – particularly when a disclosure is made to an employer, rather than a legal adviser.
“The emotional toll on whistleblowers impacts them on so many levels,” is the word from psychologist and integrity leadership specialist Charissa Bloomberg. “Such individuals often suffer from ongoing anxiety, post-traumatic stress disorder, burnout, and all manifestations of ongoing stress – yet, by rather encouraging them to remain silent, we are sending the message that injustice is acceptable. Silence fractures our integrity. Speaking out empowers others to do the same. There is only honour in doing the right thing.”
What conduct should whistleblowers enjoy protection from?
TI Guidelines detail unfair treatment as the main reason why people don’t report a wrongdoing. They endorse whistleblower protection from retaliation by a third party; both while working for an employer, and after the contract ends. The PDA, on the other hand, refers to 10 instances of occupational detriment for which protection should be offered – but omits blacklisting, bullying, and administrative/economic disadvantage.
TI Guidelines also give provision for whistleblowers (and their dependants) to seek immediate police protection. In South Africa, on the other hand, only the Protection from Harassment Act 17 of 2011 provides any level of safety from conduct that could cause physical harm. The prevention of future harassment, due to a court order, is singularly inadequate in cases where whistleblowers face great risks to their own, and their families’, personal safety.
People may also be deterred from speaking out for fear of facing a law suit; and, in this regard, TI Guidelines are clear: “A whistleblower may not be subjected to detrimental [legal] action on account of having made a protected disclosure”. The PDA, on the other hand, refers to the use of a “free defence” approach, i.e. seeking legal assistance from the Commission for Conciliation, Mediation and Arbitration (CCMA). Unfortunately, an employer could seek to overly harass the whistleblower, even in cases where that whistleblower’s legal advice was covered.
Lastly, employees should not be penalised for refusing to participate in wrongdoing – even if this could be construed as insubordination by the employer. TI Guidelines respect and uphold an employee’s right to refuse these actions. The PDA, on the other hand, says blowing the whistle should not immunise anyone against the consequences of their actions.
It is imperative that organisations seek alternative channels to help identify and communicate unethical behaviour or misconduct, in the important quest to support transparency, accountability, and enviable governance in our country.
The Whistleblower Protection Bill is due to be introduced to Parliament later on this year. Watch the media for details!
Charles Edelstein is the director of Executive Placements.