Job help and rewards for whistle-blowers mooted as experts debate protection weaknesses
SA has enough existing laws to deal with the protection of whistle-blowers, but more should be done to incentivise people to come forward and help them after their disclosures net wrongdoers.
Former public protector Prof Thuli Madonsela, head of the Special Investigating Unit (SIU) advocate Andy Mothibi, and former SIU head Willie Hofmeyr joined a webinar hosted by the Health Sector Anti-Corruption Forum on Sunday night, in partnership with Maverick Citizen, which focused on unpacking key challenges confronting whistle-blowers, as well as potential solutions to ensure a more conducive environment for whistle-blowing.
This comes after the recent murder of whistle-blower Babita Deokaran, described by the organisers as a gruesome reminder of the dangers faced by those who risk their lives and livelihoods to expose corruption in SA.
Mothibi said the Protected Disclosure Act and the Witness Protection Act were there to protect witnesses and whistle-blowers.
One of the most important things authorities need to put in place is that whistle-blowers and witnesses are aware of the support available for them, he said.
“Witnesses and whistle-blowers must be informed of their rights upfront so they can be aware of them and be able to exercise that option when a hazard comes their way,” he said.
He applauded the critical role played by whistle-blowers and witnesses in their investigations.
“Credible information used in investigations that are used to open criminal cases doesn’t just flow. It is given by people and they should be assured of protection,” he said.
Mothibi said whistle-blowers were critical in the fight against corruption, and said the current personal protective equipment investigations were brought to the SIU by whistle-blowers.
Madonsela echoed the same sentiments around the important role played by whistle-blowers in the fight against corruption.
“Auditing is regarded as an important practice to ensure companies and state entities function in accordance with the law. Auditing increasingly takes care of matters such as fraud and corruption. After auditing, we rely on oversight agencies such as the SIU and the public protector that come after things have been broken. However, do we know that auditing only picks up one in 10 white collar crimes that we can classify as corruption, fraud and embezzlement? The nature of an audit is that it’s not a forensic exercise. It is supposed to look at compliance. Who then takes care of the nine out of 10?”
Madonsela said she discovered during her tenure as a pubic protector that a lot of what we know about corruption in companies, state affairs and other forms of crime was through whistle-blowers.
She said this comes at a high cost for the whistle-blowers because they sometimes face civil proceedings because they are not protected against litigation and are also not protected from being dismissed.
Madonsela said Deokaran was more than a whistle-blower, and said there were more public servants like her.
“She was a public servant doing her job. She stopped the rot by stopping the process from moving forward,” she said.
Madonsela said not enough is being done to protect whistle-blowers. She said if they are not killed, they find it hard to find employment.
She made reference to a former employee of the treasury in KwaZulu-Natal, who Madonsela said was fired from her position even though she made a protected disclosure. According to Madonsela, she is still unemployed and finding it hard to find employment.
“No one wants to re-employ whistle-blowers and not enough is been done to reintegrate them.”
She said another pitfall around the protection offered to whistle-blowers is that once it is decided there will be no prosecution, the witnesses are dropped and left on their own, and sometimes that is when they face retaliation.
Hofmeyr suggested a new whistle-blower protector, chaired by a retired constitutional court judge, should be set up. He also said an amendment should be made to the law to ensure organisation like Legal Aid could provide free legal services to whistle-blowers.
On encouraging more people to blow the whistle, Hofmeyr said SA should consider offering rewards to people who give credible evidence that is used for successful prosecutions and convictions.