The purpose of this paper, authored by Patricia Martin under commission to ODAC (the Open Democracy Advice Centre), is to assess how far South Africa has progressed towards the realisation of a meaningful culture of disclosure. The realisation of a meaningful culture of disclosure requires an enabling whistleblowing legal framework, meaningful implementation and enforcement within all organisations of the practices and protections provided in terms of the enabling laws and a societal culture which is receptive to and respectful of whistleblowers.
The whistleblowing framework in South Africa has developed over a number of years. It is currently primarily located in the Constitution of the Republic of South Africa, the Protected Disclosures Act 26 of 2000, the Labour Relations Act, the Companies Act 71 of 2008 and the body of jurisprudence that has been developed by the Labour, High and Supreme Courts of South Africa. The evolution of the laws in South Africa has resulted in four whistleblowing frameworks.
- The first governs disclosures by the general public not protected by the PDA or the Companies Act.
- The second is the framework created by the PDA which governs whistleblowing by employees in the public and private sectors.
- The third is the framework created by the Companies Act which governs whistleblowing within all companies registered in terms of the Companies Act, including profit and not-for-profit companies.
- The fourth is the framework of rights and obligations imposed on “public” and “state-owned” profit companies registered in terms of the Companies Act.
A review of the frameworks against the international, continental and regional legislative principles reveals a number of policy and implementation gaps which prevent the realisation of a culture of disclosure, including the following:
- The protective scope of the framework is too narrow.
- There is no express obligation in terms of the PDA on organisations, both public and private, to take proactive steps to encourage and facilitate whistleblowing in the organisation, or to investigate claims that are made by whistleblowers.
- The Companies Act does create a number of positive obligations on private and state-owned companies to develop and implement whistleblowing policies and procedures. There is, however, no guidance provided for these companies or those which voluntarily choose to do so as to what the policies and procedures ought to contain and achieve.
- The protection and remedies provided by the PDA are not strong enough to engender confidence in the ability of the law to protect whistleblowers.
- There is no consolidated and comprehensive whistleblowing framework. Instead, whistleblowing is regulated by a splintered series of different laws which apply different obligations to public and private entities and different levels of protection for different categories of whistleblowers. The effect of this is to create a risk of unequal protection for different whistleblowers.
- There is no public body dedicated and able to provide regular advice to the public, to monitor and review whistleblowing laws and practices and to promote public awareness and acceptance of whistleblowing.
- The lack of a dedicated monitoring body has contributed to the lack of regular and updated data tracking the prevalence of whistleblowing, the creation and practice of a culture of organisational disclosure and transparency and the protection of whistleblowers.
- There are numerous implementation gaps and deficiencies in the use of the law. The overall picture that emerges from available statistics and studies is that we are not seeing a robust culture of disclosure in South Africa. Despite the fact that the PDA is now ten years old, we are seeing what appears to be a reversal of gains made in this regard.