The government is preparing to dole out financial incentives and ramped up protection to whistleblowers after recommendations from the Zondo commission, to shield those lifting the lid on corruption from the “detrimental effects” of doing so.
But trade union Cosatu is fuming that the proposed financial incentives will not be offered to public servants, especially junior staff.
Minister of justice and constitutional development Mamoloko Kubayi on Thursday released the draft Protected Disclosures Bill for public comment.
The proposed new law will amend the Protected Disclosures Act of 2000 which was found to have serious gaps by the Zondo commission, such as “unclear procedure, weak protections, and limited support” to whistleblowers, Kubayi said at a media briefing.
The protection of whistleblowers has been the subject of intense public discourse in the last few years, after the chilling killing of senior Gauteng provincial health department official Babita Deokaran and the late Ekurhuleni auditor Mpho Mafole, who paid with their lives for blowing the whistle on corruption.
Some executives working for companies that traded with the state during the state capture years also lost their livelihoods for blowing the whistle on corruption between state entities and their companies.
Kubayi said the bill, among other things, aims to provide:
- A clear definition of a disclosure, detrimental action and occupational detriment such as unfair discrimination, intimidation, or harassment.
- The bill also outlines mechanisms to protect the confidentiality of disclosures and disclosers.
- It provides for protection under the Witness Protection Act, extending formal state protection measures to disclosers and related people where necessary, including access to protection programmes such as relocation, identity protection and security measures.
- It provides for legal assistance to disclosers where a discloser cannot afford legal representation. A court or tribunal may refer the matter to Legal Aid South Africa, which must provide legal assistance at state expense where substantial injustice would otherwise occur.
But the most striking proposal was the one addressing how financial incentives should be provided to whistleblowers.
“The bill also incentivises our whistleblowers in terms of giving others financial awards in certain instances where disclosures lead to successful law enforcement outcomes,” Kubayi explained.
“These measures are designated not only to protect whistleblowers but to promote a culture of accountability and transparency across both the public and private sector.
“The current law does not provide for witness protection to be provided to whistleblowers, and that’s why this bill particularly, once it’s approved, gives that mandate.
“If you go into witness protection, there could be financial support like what we do with the witness protection unit.
“Rewards can be in many ways, for example we can work with partners in the private sector. Let’s say if a whistleblower is dismissed from work while the investigation is being conducted, the bank should not repossess their cars, their houses. So there are various mechanisms that we can put in place to encourage and protect whistleblowers.”
Andries Nel, Kubayi’s deputy, explained the issue further.
“What the draft bill makes provision for in clause 18 is that after a court has convicted an employer of improper conduct and imposes a monetary sanction in respect of a disclosure, the court may order that the person who has made the disclosure could receive an amount that does not exceed one fourth of the monetary sanction. So you can get up to 25% of the sanction the court imposes on the employer.
“However, there are certain people who are excluded from receiving such an award. The first is someone in the public service … someone who provided such information as part of a plea agreement or someone who is an accomplice in respect of the offence, and also someone who is an employee of a law enforcement agency or someone who is an informant or accessing information as part of their ongoing duties. Where there’s more than one whistleblower, the court can order that that one-fourth, or 25% of the penalty can be divided among them,” Nel said.
While welcoming the move, Cosatu’s Matthew Parks said they were not happy that public servants were being excluded from the financial incentives set to be in the offing once the bill is passed by parliament.
“This is a fundamental flaw, as many public servants, in particular junior staff, are very vulnerable to victimisation. Equally, junior public procurement staff often have invaluable information about wrongdoing by senior management and service providers. Their intelligence is key to securing successful prosecutions.
“Their protection and rewarding are key to incentivising them to take risks to their careers, lives and families by exposing corruption. Such an exclusion should be limited to the heads of departments and senior management only.
“While supporting this progressive bill, its witness protection programmes need to be substantially resourced by Treasury if they are to provide the necessary protection for those who risk their jobs, lives and families when reporting criminal activities. We cannot afford to cut corners when protecting the lives of whistleblowers.”
TimesLIVE
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