Five deep flaws with the whistleblowing system and how to fix them
We would likely have no Gupta Leaks and no Zondo Commission without whistleblowing.
Yet whistleblowers, who often come from accounting backgrounds, are being killed or have to flee the country. This article looks at five flaws in the current whistleblowing system.
"Too often company policies, the legal system and even public relations are 'weaponised' against the whistleblower, who ends up isolated, impoverished and defeated," according to a report on whistleblower protection published by the non-profit Just Share.
Many of the problems come from the shortcomings in the Protected Disclosures Act (PDA). The defects are legion and complex, but here is a look at five.
Problem: It's difficult to remain anonymous and blow the whistle
If you're a whistleblower making a disclosure using the PDA, those implicated by your disclosures may discover that you disclosed.
The PDA does not require a whistleblower's identity to be kept anonymous from the person receiving the disclosure. It also doesn't require the recipient to maintain the whistleblower's confidentiality. Nor entitle whistleblowers to protection if their identity is leaked. A key failing identified by the Zondo Commission
Potential solution
"Confidentiality is a minimum requirement of any legislation that aims to protect whistleblowers. It is a first line of protection, and it will increase the trust in the whistleblowing system," according to Transparency International's Guide for Whistleblowing Protection.
One of the Zondo Commission's recommendations is that a central electronic reporting system that protects anonymity and confidentiality while allowing follow-up questions is set up.
But, in its absence, what can whistleblowers do to navigate this problem?
Whistleblowers should exercise "extreme situational awareness," according to Mthabisi Moyo, anti-corruption and HR governance principal consultant.
"If it [your organisation] has a positive culture, by all means, whistleblow. But if it's a culture that retaliates against employees, you might need to consider the external whistleblowing channels instead of just keeping quiet.
"We've seen the quality of work produced by journalists when they work with whistleblowers. "
Moyo was speaking at a recent webinar hosted by the Daily Maverick.
Problem: Whistleblowing can bankrupt you
The Just Share report notes, "For many whistleblowers, their jobs are only the first thing they lose. Many also lose their pensions when they lose their jobs. They lose their homes when banks foreclose on them, or when they are forced to sell them to pay for legal fees in defending themselves against spurious civil and criminal legal actions, fees which can run into the millions of rands."
Take the case of Patricia Mashale, who blew the whistle on alleged SAPS corruption and was later fired and threatened.
Mashale wrote in the petition, "I have also been dismissed from my job and I have no way of sustaining myself financially anymore."
Mashale has since fled the country.
While dismissing whistleblowers from their jobs is unlawful, there are limits to how much compensation whistleblowers can claim if fired unlawfully.
Potential solution
There is no consensus on the best solution. However, activists agree that whistleblowers need more funding.
The Just Share report looks at a few options. One is a foundation funded by private donations and independently administered. The idea is that such a fund could cover legal costs, personal protection, relocation, counselling, and professional assistance to help boost the whistleblower allegations and potential rewards for disclosures.
Problem: Justice, if it ever arrives, is delayed
City of Johannesburg whistleblower Sarika Lakraj-Naidoo explained to CFOClub that she first reported allegations to multiple government authorities in 2009. It wasn't until 2019 that a gazetted presidential proclamation authorised the SIU to investigate. Four years later, the SIU is still investigating.
This is not an outlier. The snail pace of investigations and prosecutions slows down all aspects of the South African accountability ecosystem.
Potential solution
One Zondo Commission recommendation is to establish an independent agency for public procurement corruption and a council with an inspectorate, litigation unit, tribunal and court. This may assist with multiple whistleblower problems.
Outside of creating new bodies, South Africa needs to improve the speed of its law enforcement and prosecuting agencies if it's ever going to get to grips with corruption.
Problem: People lay charges against you
The Just Share report points to the example of Mosilo Mothepu, the former CEO of Trillian Financial Advisory, who had "criminal charges laid against her by her former employer, which also pursued her in the Labour Court and the Commission for Conciliation, Mediation and Arbitration (CCMA).
The Hawks and the National Prosecuting Authority investigated Mophetu for over a year; when they eventually decided not to take the matter any further, they did not even bother to inform her."
City of Johannesburg whistleblower Lakraj-Naidoo similarly faces disciplinary action from her employer and suspension.
Potential solution
Changing the law will help.
The Just Share report refers to New Zealand, where "no-one who makes a protected disclosure of the information is liable for any civil or criminal proceeding, and cannot be subjected to a disciplinary proceeding as a result of making the disclosure."
Platform to Protect Whistleblowers in Africa (PPLAAF) changing the law to allow fairer remedies in the case of occupational detriment.
Problem: Whistleblowing can be deadly
CFO Babita Deokaran, community activist Ayanda Ngila and others have been killed in recent years.
CFO and whistleblower at Mamusa Local Municipality, Mercy Phetla and Lakraj-Naidoo have both faced death threats, with Lakraj-Naidoo stating that she followed and had to abandon her vehicle.
Potential solution
Making whistleblowing less deadly likely requires solving the other problems identified in this article and others.
Where to from here?
Organisations including CIBA, the owner of Accounting Weekly, are pushing for whistleblower reform. Fixing the existing legislation and keeping whistleblowers front of mind might be a good place to start.
The Just Share report notes, "Creating a society in which whistleblowers are respected and safe is a task which will take Herculean efforts, as it will involve rebuilding trust and faith in institutions that have long ceased to provide a meaningful public service."
Despite this accountants, activists, administrators and others continue to blow the whistle.
Or, as Lakraj-Naidoo puts it, "Am I scared? Yes, I’m scared, but I’m not spineless. And you know what? You need to stand for something. I have a duty. This is taxpayers’ money. It was supposed to be meant for the vulnerable in the country.”
