An organisation’s key asset: the tale of the whistleblower

Employees are the most valuable asset to an organisation but their true value can be seen when an employee is willing to come forward to report unlawful or irregular conduct by their employers and fellow employees in an effort to fight commercial crime. Commercial crimes such as theft, fraud, money laundering, bribery and corruption may be identified in various ways and are often identified by chance or when something goes seriously wrong. However, whistleblowing is one of the most effective ways to pick up unlawful and irregular conduct in an organisation. Whistleblower protection is essential to encourage the reporting of unlawful conduct.

The procedure for whistle blowers to disclose information of improprieties within the South African context, is embodied in the Protected Disclosures Act No. 26 of 2000 (“PDA”) aptly dubbed ‘the Whistle Blowers Act’. In terms of the PDA, a disclosure is classified as a 'protected disclosure' if it contains information about an impropriety and the disclosure has been made to the right person. The improprieties covered by the PDA include criminal offences; failure to comply with certain legal obligations; miscarriages of justice; endangering of the health or safety of individuals; damage to the environment; and unfair discrimination.

The disclosure of any of the above mentioned irregularities can be made to a legal adviser with the object of and in the course of obtaining legal advice. A disclosure can also be made to an employer in accordance with an organisation’s internal procedure to report improprieties. The PDA further provides for individuals to make general protected disclosures to the Public Protector or the Auditor General amongst other prescribed institutions. Employees who ‘blow the whistle’ on unlawful or irregular conduct by their employers or fellow employees are offered protection in the PDA in that the PDA prohibits such employees from being subjected to occupational detriment (such as being subjected to any disciplinary action; dismissal, suspension, harassment or intimidation on account of having made a protected disclosure). Effectively, the whistleblower is protected from being adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security.

Encouraging and protecting whistle-blowers should be at the forefront of every business in an effort to fight commercial crime. There is however a moral paradox surrounding whistleblowing with the whistle-blower often either regarded as a hero or a reprehensible traitor. In a recent webinar hosted by the Health Sector Anti-Corruption Forum and Maverick Citizen, sponsored by the Special Investigation Unit, Corruption Watch and the Government Communication and Information System, former Public Protector Thuli Madonsela called for further legislative measures to protect whistleblowers.

Creating a culture that will encourage disclosures of irregular activities in the workplace starts with protecting those who have the courage to blow the whistle. That will be half the battle won in the fight against commercial crimes.

This article was authored by Refiwe Makhema who has now left CMS.