PODCAST | Whistle-blowers’ problems with the law

In this edition of Business Law Focus, host Evan Pickworth interviews Tendai Jangara, director in the dispute resolution practice at Cliffe Dekker Hofmeyr (CDH), about the continuing plight of increasingly unloved whistle-blowers.

Among others, they discuss whether it was fair to ask André de Ruyter, after exiting Eskom in the wake of a poisoning scandal, to back up his further corruption allegations, and how this could have been better handled.

They look into how amendments to the Protected Disclosures Act should ensure that provision is made for future job security, or financial, emotional, legal or other support for whistle-blowers and their families. They also cover the often neglected ground of when whistle-blowing is used as a ruse, or for malicious intent by those with ulterior motives.

Listen to the interview:

The context

While corporate SA has made great strides in promoting employee wellness and the right to speak against unfair treatment in the workplace, the same cannot be said for whistle-blowing. Whistle-blowers play a crucial role in the exposure of serious criminal activities, including fraud and corruption, and unfortunately often suffer occupational detriment and even lose lives as a result of their desire to act in the best interests of employers.

A fundamental mindshift by employers is required to understand that whistle-blowers act at great risk to themselves, not to negatively affect their workplaces but to expose malfeasance with the aim of protecting places of employment and assets.

The Protected Disclosures Act, 26 of 2013 (PDA), is inadequate when considering retribution which extends beyond the bounds of employment, including threats to life, financial detriment and legal costs. The Labour Relations Act, 66 of 1995 (LRA) provides for compensation of loss of income, for example, but this is limited to an amount not exceeding 24 months’ worth of remuneration where a whistle-blower can suffer reputational damage that prevents them from securing employment indefinitely.

It is necessary to amend the PDA to include mechanisms for whistle-blowers to report activities to a regulated body that can immediately activate a system for protection, at the time of reporting, which considers the whistle-blower not just as an employee, but a person whose life, overall wellbeing and financial interests must be secured.

It is imperative that a proactive approach be taken to guarantee the safety and financial wellbeing of whistle-blowers, as retaliatory action usually affects these areas causing irreparable harm. When the legislation is amended and shown to be effective in guaranteeing whistle-blower protection, it is likely that an increase in reporting using whistle-blowing mechanisms, including direct statements and hotlines, will be experienced in both the private and public sectors.