Whistleblowers may receive a percentage of the monetary sanction imposed by a court on a convicted employer, according to a draft bill.
Deputy justice and constitutional development minister Andries Nel explained on Thursday at a media briefing, however, that whistleblowers will not be offered upfront incentives or rewards for disclosing corruption in terms of the new draft legislation, which seeks to promote whistleblower protection.
The Protected Disclosure Bill approved by the cabinet last week for public comment aims to enhance the protection of whistleblowers to prevent, among other things, a recurrence of the murder of Babita Deokaran, who blew the whistle on corruption at Tembisa Hospital and several others.
Whistleblowers have suffered for disclosing corruption, suffering suspension and dismissal.
In terms of the draft legislation, open for public comment until May 14, it will be a criminal offence to disclose the identity of a whistleblower.
The draft bill gives effect to recommendations of the Zondo commission of inquiry into state capture, which found that the country’s law on whistleblower protection was weak, as well as recommendations of the National Anti-Corruption Advisory Council.
Weaknesses identified included the absence of clear procedures for handling disclosures, insufficient protection for whistleblowers, limited support mechanisms for disclosers, and a lack of systems to ensure that disclosures were effectively received and acted upon.
Whistleblowers have suffered for disclosing corruption, suffering suspension and dismissal, imposing financial hardship on them and their families. This was the experience of whistleblowers at the National Lotteries Commission and the South African Revenue Service (SARS), for example.
The bill explicitly prohibits occupational detriment or any form of retaliation and places the burden on the employer or relevant party to prove that any action taken was not linked to the disclosure.
Nel explained that the courts could award a maximum of 25% of the court-imposed sanction to the whistleblowers (excluding public servants), those who provided information as part of a plea agreement, accomplices and employees of law enforcement agencies, or paid informants. If there were more than one whistleblower, the award could be divided among them.
Protection from retaliation
Justice and constitutional development minister Mmamoloko Kubayi said SA did not have the capacity to provide incentives for whistleblowing, but the department would consider public suggestions.
She said the draft bill sought to establish a secure reporting channel, protection from retaliation, support throughout the process, and the efficient handling of disclosures.
She hoped the bill would be fast-tracked by parliament.
The bill prohibits the disclosure of the identity of a discloser or any information that may lead to their identification without their consent, except where strictly necessary for purposes of handling the disclosure. A breach of these confidentiality provisions constitutes a criminal offence.
Protection is also provided for whistleblowers and their families under the Witness Protection Act.
The draft bill also introduces a complaints mechanism overseen by a retired judge designated by the president in consultation with the chief justice. It will allow disclosers or related persons to lodge complaints when their disclosures are not properly handled, where retaliation occurs, or where confidentiality is threatened, and empowers the judge to investigate and refer matters for appropriate action.
Breaches of legislation are criminalised, including the suppression or concealment of evidence during an investigation, the unlawful disclosure of information or the identity of a discloser, and subjecting a discloser to occupational detriment or detrimental action. These offences attract serious penalties, including fines and imprisonment of up to 10 or 15 years, depending on the nature of the offence.
A disclosure is protected if it is made to specified government and state institutions and to employers and legal practitioners. All employers will be required to develop procedures for receiving and managing disclosures, including the designation of an official responsible for handling them.
Kubayi said provision was made for the establishment of a central database for disclosures to be managed by her department.
“The bill strengthens timelines and accountability in the handling of disclosures. Disclosures must be acknowledged within five days, decisions taken within 10 days and investigations completed within 12 months, subject to limited extensions. The central database will enable tracking, monitoring and accountability in ensuring compliance with these timelines,” she said.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.