GUIDE TO THE WHISTLE-BLOWING ACT

Section 1

Whistle-blowing in the South African context

South Africa’s transition to democratic rule has been characterised by high levels of crime, including wide-spread corruption. Several initiatives have been under taken to promote accountability and fight corruption within the public sector. These efforts include legislation such as the Promotion of Access to Information Act and the Protected Disclosures Act, as well as hosting anti-corruption conferences (in November 1998, April 1999 and October 1999). Resolutions taken at the National Anti-Corruption Summit in April 1999 made specific reference to “developing, encouraging and implementing whistle-blowing mechanisms, which include measures to protect persons from victimisation where they expose corruption and unethical practices”. During February 2001 the Protected Disclosures Act which protects bona fide whistle- blowers came into force.

One of the key obstacles faced in the fight against corruption is the fact that individuals are often too intimidated to speak out or “blow the whistle” on corrupt and unlawful activities they observe occurring in the workplace, although they may be obliged to in terms of their conditions of employment. Under the Public Service Code of Conduct, public servants in the course of their official duties shall report to the appropriate authorities, fraud, corruption, nepotism, maladministration and any other act which constitutes an offence, or which is prejudicial to the public interest.

Often those who do stick their necks out are victimised and intimidated and until recently have had little recourse. A large cause of the problem is that in South Africa whistle-blowers can be confused with “impimpis” - apartheid era informants who informed on their comrades with often devastating consequences. This historical context has unfortunately allowed some to stigmatise whistle-blowing as an activity to be despised rather than encouraged.

What is whistle-blowing?

Understood correctly, whistle-blowing is not about informing in the negative, anonymous sense but rather about “raising a concern about malpractice within an organisation”. The bravery of being prepared to blow the whistle is directly related to the cultural resistance in many organisations to transparency and accountability. Whistle-blowing is therefore a key tool for promoting individual responsibility and organisational accountability. Whistle-blowers act in good faith and in the public interest to raise concerns around suspected impropriety within their place of employment. However, they often risk victimisation, recrimination and sometimes dismissal.

Why is whistle-blowing important to you?

Whistle-blowing is an early warning system to avert possible risks to the organisation. An effective policy to encourage whistle-blowing enables employers to find out when something is going wrong in time to take necessary corrective action.

A positive whistle-blowing culture is a critical element in the success of any risk management system. By promoting better risk management, it can also help you prevent the need for more regulation and intervention by regulators and legislators.

An organisation that positively encourages whistle-blowing stands a far better chance of demonstrating that it is properly run and managed. The existence of a working whistle- blowing policy can be pivotal in legal proceedings. This is because, in determining liability and in setting the penalties, the courts may well take account of whether a whistle was blown and, if not, why not.

Why don’t people blow the whistle?

While employees are usually the first to know of wrongdoing, many will feel they stand to lose the most by speaking up. Those who genuinely suspect that something may be going seriously wrong in the workplace usually face an acute dilemma. They can stay silent and look the other way, they can raise the matter with the employer, or they can take their concerns outside the organisation.

The fear of being labelled a “sneak” or a troublemaker, the fear of “breaking ranks” and appearing disloyal to colleagues, and the fear of being required to provide irrefutable evidence are powerful disincentives to speaking up. For generations, playground culture has dictated that we do not “tell tales”.

The distinction is not always drawn between those who wantonly betray trust and those who act - often irrespective of their own immediate interests - to protect others and the interests of their employers. A good policy encourages and protects responsible whistle-blowing.

Those individuals who think they ought to resist the social pressure to look the other way and recognise that the matter should be looked into by those in charge must consider their own position. Might they be disadvantaged, disciplined or even dismissed for speaking up? Press reports, which focus on whistle-blowers who find themselves out of a job or out of a career, only fuel these fears.

In such circumstances, it is not surprising that most employees who find themselves in this position speak only to friends or family - rather than to their employer, the person best able to look into the issue.

The result of this communication breakdown is that the employer loses a valuable oppor tunity to avert what might become a damaging crisis or to reassure employees that their concerns are mistaken, and also loses access to a valuable pool of information.

Why aren’t grievance procedures enough?

While employers increasingly recognise that it is in the organisation’s interest to encourage staff to raise concerns, many still have provisions and procedures which actually compound the problem. This is because rules designed to deal with the disaffected and disloyal will never reassure the silent majority of the workforce that it is safe to raise a concern about wrongdoing.The commonplace assumption that a concern is no different from a grievance suggests that the employee should pursue the concern through an adversarial procedure. This can give the impression that it is for the employee to prove that the department is being defrauded, or that a safety hazard is present.

The inclusion of all-embracing confidentiality clauses in contracts sends a strong message that staff should keep quiet, both in and outside the workplace.

Rigid line management, without a whistle-blowing system, risks giving middle management a monopolistic control over the information that reaches those in charge. Like any monopoly, this control can offer real temptations to the lazy, the incompetent and the corrupt.

Properly understood and applied, a whistle-blowing policy will help you break this cycle of silence and inaction and prevent corruption in the public sector.

Whistle-blowing has been promoted by the Public Service Commission through provincial workshops and has been recognised as an impor tant corruption prevention tool by a number of public sector departments. Before February 2001, public servants who raised concerns in the workplace would have had limited protection in terms of the Labour Act and Public Service regulations. With the introduction of the Protected Disclosures Act all public service employees who raise their concerns, in line with their duty under the Public Service Code of Conduct to report impropriety, will be protected.

Section 2 explains how legislation & organisational policies protect whistle-blowers who make disclosures. Support for employees raising the whistle is also discussed.