Publisher's note: this piece is an opinion piece which was not written by a lawyer. No claims are being made whatsoever with regard to the legal accuracy of this article.
Whether you are an employee that works in the public or private sector, or just an everyday citizen, we all have that yearning to scream out loud when something does not feel right. Even worse, when we know something isn't right. Generally, individuals who wish to blow the whistle on a particular subject will have two options: The first would be to "blow" the whistle with the intention of balancing out the situation and benefitting everyone involved in a positive way, and the second option would be to remain silent, out of fear.
What is Whistle blowing and why even bother to whistle blow?
Whistle bowing is when an individual raises and exposes a concern about malpractice within an organization or institution.
The whistle blower will more often than not find him or herself in a challenging situation. Merely considering the fact of whistle blowing can be very challenging and stressful for an individual. A whistle blower will often find himself torn, not knowing what route he may use. A good example is that of the famous NSA contractor, Edward Snowden who recently came out to expose crimes that the National Security Agency (NSA) was committing.
Whistle blowing can become a revolutionary act in this day and age, especially when many public and private organisations are still infested with corruption, with no accountability and far away from the public’s eye.
Whistle-blowing in South Africa
Since February 2001, South Africa took a stand in developing what they call a "state of the art” Whistle Blowing Legislation, more notably the Protection Disclosure Act 26 of 200.
After a summit took place in 1999, individuals made specific reference to developing, encouraging and implementing the Whistle bowing mechanisms. This framework would enable ways to protect individuals from victimization when exposed to unethical practice.
The current protection system has been developed and implemented solidly, with over emphasized strength, due to this nation’s complex socio-economic realities, and effects of the miserable times of apartheid.
The protected disclosure act offers many legal doors that one may take in order to safely disclose hidden information. A whistle-blower is encouraged to raise the issue internally, before taking matters into his own hands, in order to expose the issue externally.
However, a particular avenue exists that surpasses these limitations. Most notably that of the fourth door, which is referred to as a Wider Disclosure, whereby an individual may disclose sensitive information to the police, MPs or the media.
This form of disclosure is also known as a General Protected Disclosure and only applies if the whistle blower honestly and reasonably believes that the information and any allegations contained within are substantially true, and that the disclosure is not made for personal gain.
The South African law recognises that in order for a wider disclosure to happen, there are four justifiable causes.
They are as follows:
a) The concern was raised internally but was not addressed properly
b) The concern was not raised internally because he/she believes he/she would be victimized
c) The concern was not raised internally because he/she genuinely believed a cover-up was likely
d) The concern was/is exceptionally SERIOUS.
For instance, we could say that an individual playing a specific role within a branch of the South African military, genuinely believed that some information was being withheld from the public. He firmly believed that he had the ability to positively affect or prevent negative occurrences affecting many people. In order to whistle blow for the sake of justice and truth, the soldier could use the general protected disclosure act as a legal route to disclosure without having the pressure or fear of being victimized or losing his job. Pertaining of course that he respects the legal standards and that he understands that the information he wishes to share holds a position within the four justifiable causes.
The Constitution of the Republic of South Africa, 1996, is the supreme law of the land. The whole realm of procedural and substantive law is to be consistent and interpreted through the values and rights entrenched within the Constitution. The Secrecy Bill violates the rights of the people to information and goes against the Democracy that so many fought for during the Apartheid years.
A responsive and accountable democracy that can meet the basic needs of our people is built upon transparency and the free flow of information. The gains of South Africans’ struggle for freedom are threatened by the Protection of Information Bill (the Secrecy Bill) currently before Parliament. We accept the need to replace apartheid-era secrecy legislation. However, this Bill extends the veil of secrecy in a manner reminiscent of that same apartheid past.
This Bill fundamentally undermines the struggle for whistleblower protection and access to information. Section 39(2) of the Constitution binds the judiciary to uphold the object, purport and values engraved in the Bill of Rights. The Secrecy Bill will be declared unconstitutional by our courts, whether signed into law or not.
It could be said that disclosing information that had the potential to positively affect society, is a moral obligation and a social responsibility.
Taking the necessary actions and steps needed to positively benefit everyone involved is something that every potential whistle-blower should take into consideration before moving any finger towards disclosure.
It is not an act to take lightly and it is to be considered in every possible aspect, without letting fear take over and by being a responsible and courageous citizen may we expose and prevent corruption, greed and division.