What happens when one blows the whistle?

Recent South African cases

Christelle J. Auriacombe
Department of Public Administration and Management
University of South Africa
auriacj@unisa.ac.za

Abstract
Worldwide, governments are increasingly paying attention to the valuable
potential role of whistle-blowers in preventing or disclosing corporate
and public service fraud, corruption, scandals and even life-threatening
mistakes.This article provides a brief background to the issues involved in
whistle-blowing before discussing what whistle-blowing is. It focuses on
who is involved in whistle-blowing, what the stages of the process are,
reasons for blowing the whistle and what employees should do when they
perceive something to be wrong in the organisation where they work. It
considers what happens to whistle-blowers by presenting four examples
of recent cases involving whistle-blowers in South Africa. In three of the
cases, the current status of each is also discussed. In considering culture
change towards responsible whistle-blowing, issues are taken on board
that were identified from these cases, as well as concerns raised by whis-
tle-blowers themselves. Some changes needed to the Protected Disclo-
sures Act, 2000 (Act 26 of 2000) are identified and, given its important
functions and implications, a case is made for whistle-blowing to be en-
couraged and protected in institutions to a greater extent.

1. Introduction
The phenomenon of whistle-blowing in public administration has come under
increasing moral, social and legal scrutiny in recent years. It is recognised that
whistle-blowers have an important role to play in combating malpractice within
an organisation. As a result, national and international anti-corruption policy
agendas have begun to incorporate measures aimed at encouraging and protecting
whistle-blowers. However, what does the term whistle-blowing mean? There is no
uniformly applied concept of whistle-blowing in any sphere ± in legislatures,
courts or academic discourse. Some observers define it narrowly as the act of
disclosing information in the public interest, while others prefer an all-

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Christelle J. Auriacombe

encompassing understanding that includes a broad range of employee complaints

or activities (Auriacombe 2004, 2). More particularly, without a universally
agreed definition of whistle-blowing, what does the term whistle-blower mean
and what are the forces driving the whistle-blower to blow the whistle?
The overall aim of this article is to underline some key issues of the whistle-
blowing phenomenon, and the importance of certain concrete and unavoidable
realities. To provide a background, the article considers the relevance of whistle-
blowing cases and the potential value of employees who raise concerns over
malpractice in the workplace. It introduces the concept whistle-blowing and asks
who the role-players are in the process. It provides an overview of the stages of
whistle-blowing and examines reasons why people choose to blow the whistle. It
also considers what an employee should do when something seems wrong.
A significant portion of the article is devoted to four reported examples of
whistle-blowing cases in South Africa, the effects on whistle-blowers, as well as the
current status of three of the cases. This illustrates the complexity of the issue, as
well as the personal effects on people who choose to blow the whistle. Problems
with current legislation and issues negatively affecting whistle-blowing in South
Africa are identified before concluding the article.
Although the focus of this article lies in the field of the prevention and detection
of fraud and corruption, the principles discussed are equally applicable to other
categories of wrongdoing.

2. Background
In a recent African opinion poll undertaken in eight countries including South
Africa, most respondents indicated that, while they supported democracy, they felt
frustrated with ongoing corruption in their countries, with only 25 per cent saying
that it had diminished. A majority of people feel it has not improved in South
Africa, with 10 per cent indicating that government officials had subjected them
or a family member to an act of corruption during the past year (GlobeScan 2004).
Corruption in all its different forms is a complex and multilayered issue. It
therefore requires multiple interventions that can range from legislation, government-
appointed authorities, special police units (such as the Scorpions), codes of conduct,
and internal rules and regulations, to name but a few. However, without the
important input of whistle-blowers, most of these interventions would never work in
practice. If no one were to point out that a wrongdoing had occurred, many of these
measures would not be of much worth. While some of the issues that warrant
blowing the whistle are of a less complex nature, those perpetrated by white-collar
offenders who are `intelligent, manipulative and . . . [who] do not see themselves as
criminals' (Rose 2004) are often dependent upon someone coming forward to blow
the whistle.

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Whistle-blowing is relevant to all institutions and all people, not just to those few
who are corrupt or criminal. Every business and every public institution faces the
risk of things going wrong or of unknowingly harbouring a corrupt individual.
Where such a risk arises, the first people who will usually realise or suspect that
some kind of wrongdoing has taken place will be those who work in, or with, the
institution. Yet, the people who are best placed to sound the alarm or blow the
whistle also have the most to lose if they do.
The potential value of employees coming forward and raising concerns over
workplace malpractice, with a view to defending the wider public interest, is largely
self-evident. Investigations into a host of disasters that took place around the world,
in both the public and private sectors, revealed that employees were either aware of
the problem, and too worried about damaging their jobs and careers to raise their
concerns, or that employees had raised concerns but that these had been ignored. The
cost of this silence ± to human life, the environment, public health, employment,
financial security, lifelong savings, the public purse and even the loss of life or
lifelong disability ± is devastatingly high (Drew 2003, 4).
International and local examples of whistle-blowing all place individuals who
choose to come forward in a highly stressful and, in some cases, personally
threatening situation. They may be torn between conflicting feelings of hurt or moral
unease, loyalty to colleagues or their employer, fear for their own position if they
report the matter and uncertainty about whom they should report to. Unless the
workplace culture and practice, as well as the law, indicate that it is safe and
accepted for them to raise a genuine concern about corruption or illegality, workers
will assume that they risk victimisation, losing their job or damaging their career.
The protection of whistle-blowers ± those who expose misconduct or
malpractice in the public interest ± has traditionally been extremely important to
trade unions ± which, by their very nature, are concerned with the protection and
well-being of workers. However, in recent years, the encouragement (and therefore
protection) of whistle-blowers has become of increasing interest to national and
international policy makers engaged in designing anti-corruption policy solutions
(Drew 2003, 1).
In South Africa, the Protected Disclosures Act, 2000 (Act 26 of 2000) has gone
a long way in alleviating the worst fears of those who blow the whistle in good faith
on wrongdoing and malpractice, even if they turn out to be mistaken. Subject to
certain conditions, blowing the whistle in this way constitutes a `protected
disclosure' under the Protected Disclosures Act of 2000 ± with legal protections
for whistle-blowers against reprisals by employers. This Act thus provides protection
against reprisals for whistle-blowing on wrongdoing done in good faith. It directs the
employee to seek confidential advice and to blow the whistle internally or with the
person responsible. Provided there is good evidence to support the concern, it also
protects whistle-blowing to designated authorities and wider whistle-blowing where
both the circumstances justify it and the particular disclosure is reasonable.

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The aim of whistle-blower legislation is to ensure that those workers who speak
out in the public interest are protected, and in effect encouraged. By destigmatising
whistle-blowing, the legislation contributes to a change in the prevailing culture and
provides a real alternative to silence.

3. What is whistle-blowing?
In a discussion paper on whistle-blowing, the Organisation for Economic Co-
operation and Development (OECD) (Dehn 2000) provided the following
collection of explanations of the term:
(a) Bringing an activity to a sharp conclusion as if by the blast of a whistle
(Oxford English Dictionary); (b) Raising a concern about malpractice within an
organisation or through an independent structure associated with it (United
Kingdom (UK) Committee on Standards in Public Life); (c) Giving information
(usually to the authorities) about illegal or underhand practices (Chambers
Dictionary); (d) Exposing to the press a malpractice or cover-up in a business or
government office (US, Chambers Dictionary); (e) (origins) Police officer
summoning public help to apprehend a criminal; referee stopping play after a
foul in football.

According to Near and Miceli (1985, 4), whistle-blowing is `the disclosure by

organisation members (former and current) of illegal, immoral or illegitimate
practices under the control of their employers, to persons or organisations that may
be able to effect action'. Slightly different wording is provided by Borrie in a
publication of the British charity organisation, Public Concern at Work (1996):
`Whistle-blowing is the disclosure by an employee of confidential information which
relates to some danger, fraud, or other illegal or unethical conduct connected with the
workplace, be it of the employer or of his fellow employees.'
Although these definitions have been widely used, there is no universally
accepted definition of whistle-blowing. However, the Australian Senate Select
Committee maintained that `what is important is not the definition of the term but the
definition of the circumstances and conditions under which the employees who
disclose wrong-doing should be entitled to protection from retaliation' (Glazer and
Glazer 1989, 5).

3.1 Who is involved in whistle-blowing?

There are three prerequisites for whistle-blowing to occur in institutions:
wrongdoer(s) who commit the alleged wrongdoing; whistle-blower(s) who
observe the wrongdoing, define it as such and report it; and recipient(s) of the
report of wrongdoing. In other words, whistle-blowing is a dynamic process
involving at least three social actors, each of whom takes actions in response to

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the others. Whistle-blowing involves a series of steps, where each player takes
actions, possibly over a number of years (Near and Miceli 1996, 508).
Because of some confusion about the meaning of the term, whistle-blowers have
unfairly acquired a bad reputation as being troublemakers, busybodies and disloyal
employees (Camerer 2001, 1). In considering this issue, it may be helpful to bear in
mind the way in which a criminal who decides to testify in criminal proceedings
against his/her former accomplices or colleagues is regarded. The authorities in all
nation-states value such collaborators and will often offer them protection and
rewards. Their role is indeed indispensable in providing the necessary evidence that
helps the police and authorities to secure convictions. A major cause of the negative
perception in South Africa is the unfair confusion of whistle-blowers with impimpis'
± apartheid-era informants who betrayed their comrades, often with devastating
consequences. This historical context has unfortunately allowed the stigmatisation of
whistle-blowing as an activity to be despised rather than to be encouraged (Camerer
2001, 1). However, where a responsible employee or a law-abiding institution blows
the whistle on corruption, the best they can hope for seems to be isolation and
disapproval. The effect (albeit unintentional) is that someone who informs on
corruption in which he or she has participated will receive more protection and help
from the authorities than an innocent colleague or competitor who blows the whistle
on such an act (Camerer 2001, 1).
In the context of bribery, this situation has particular relevance. Unless people
are enabled and encouraged to blow the whistle when a bribe is offered to or
solicited from them, it is not clear how far the fight against corruption can succeed.
Without information from institutions about offers or the solicitation of bribes, or
from workers about corrupt colleagues, the authorities will have to rely on evidence
from either the bribe payer or the bribe recipient. As these two people will
effectively have conspired against the public interest, it may be rather optimistic to
rely on one of them to `see the light' and to provide the evidence that will allow the
law to be enforced (Westin 1981, 134±136).
The consequence of this culture is that it discourages the great majority of
normal, decent people from raising concerns about serious wrongdoing. It also
encourages unscrupulous people to use the information to their own advantage and
at a time of their own choosing. In this way, this culture actually increases the risk of
abuse. Malicious workers and aggrieved competitors already make damaging
disclosures. Put simply, they are able to exploit the absence of clear signals about
how to blow the whistle properly. Because there is neither a safe procedure nor an
accepted way to blow the whistle, they may also maintain that they are justified in
anonymously communicating false information to the authorities or the media. With
nothing more than the anonymous but interesting allegations to go on, the authorities
may start investigations and the media are likely to report damaging rumours.

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In arriving at a reasonable definition of a whistle-blower, there is a further

question. If somebody encounters what he or she perceives to be a wrongdoing and
discloses it, should this person always be categorised as a whistle-blower? If
corrective action is taken without any undue pressure on the one who discloses,
nothing untoward of an external nature has affected this person. In this circumstance,
the internal procedures have been effective. This is the desired situation. The whistle-
blower comes to no harm and the institution is enhanced. This lack of conflict does
not reflect the popular image of a whistle-blower. Far more often than not, the person
disclosing is at risk, or the disclosure is ignored or denied. It is these individuals,
who persist in insisting that something is wrong in the face of adversity, who are
most commonly recognised by the term `whistle-blower' (Feldman 1999, 2).

3.2 What are the stages of whistle-blowing?

There are three inevitable stages in the process of whistle-blowing. During
causation, the first stage, a person perceives an activity as illegal, unethical or
immoral. The whistle-blower can choose to ignore this perception, to acquiesce in
the conduct of the activity, to participate, to object or to walk away. Over time,
these five choices are not mutually exclusive, as an individual's mind may change
about how to behave at any given time.
Irrespective of personal conduct, there may be no option but to proceed to the
second stage, disclosure. In institutions regulated by legislation, which include all
companies in democratic societies, there may be strict rules requiring disclosure to
the external regulator or auditor. Auditors and other compliance officers are
themselves under strict rules of disclosure. In situations of disclosure, the response of
some institutions is to get rid of the problem, not by sorting out the revealed wrong,
but by `sorting out' the whistle-blower.
Thus, stage three of the whistle-blowing process is retaliation. Disclosure is
often by means of confidential information including documents, but even so the
whistle-blower's identity may not be obvious. Consequently, identification of the
whistle-blower is a matter of extreme importance to the `wrongdoer', and preserving
anonymity is perhaps of greater importance to the whistle-blower (Feldman 1999, 2±
3).

3.3 Why blow the whistle?

A person may disclose perceived wrongdoing for any of the following reasons or
combination of reasons: depending on the viewpoint, the whistle-blower is
considered heroic or heinous. On the positive side, it may be done on principle,
because of legal considerations or for the public good. On the negative side, there
is disclosure for malicious reasons or because someone is acting as an informant
for an outside agent. Finally, there is disclosure by the media.

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In the first instance, people have become whistle-blowers as a matter of principle

because of personally held ethical or moral beliefs. These people are referred to as
ethical resisters. They tend to be `conservative' people devoted to their work and
their institutions.
Second, people may blow the whistle for legal considerations. Such individuals
may be in a regulatory function and specifically required to obey the law either by
dint of their professional obligations or based on the terms of their employment. For
example, under legislation ruling companies in many countries, registered auditors
are placed under stringent obligations with regard to company audits. Furthermore,
employees of a company may be required under legislation to inform registered
auditors fully and openly not merely on what the auditors require but on what they
are entitled to require. International money-laundering regulations require disclosure
to the relevant authorities by persons engaged in `property' and money transactions.
These are merely examples of the many regulatory provisions now in force in such
areas as financial regulation, competition and, of course, the vast area of
environmental protection (Feldman 1999, 4).
Complying with such strict legislation is not particularly onerous to a person.
There is a view that law-abiding people believe that the law in its broadest sense
should be upheld. Consequently, it should be no great burden to obey the law in
these matters. At the other end of the scale, an individual will comply through fear of
the personal consequences arising from a failure to uphold the law once the
wrongdoing becomes known. Certainly, the forms of legislation mentioned contain
criminal sanctions for breach of the law.
Third, on the heroic side, is disclosure for the public good. Depending on the
viewpoint, this individual is either seen as a good citizen or a `do-gooder crank'.
Possibly the finest example was the very courageous action of Christopher Meili, the
Swiss security guard who blew the whistle on the shredding of Swiss archive
documents relating to Holocaust banking accounts. Meili lost his job and suffered
significant condemnation for his act. Since Meili had neither prior association with
Holocaust victims nor any Jewish connections, his whistle-blowing is all the more
indicative of a totally selfless act motivated by public interest (Feldman 1999, 5).
There is also a fourth reason for blowing the whistle that might be summarised
as ancillary motives. This could include motivation for personal gain, some
malicious end such as revenge, or a destructive falling out of the concerned parties.
They do not necessarily involve mala fides.
Fifth, there is the informant as whistle-blower. This is someone who could be a
police or regulatory authority's informant. An informant can either be placed within
the institution for the particular purpose of gaining information, or may be a member
of the institution who has been `turned' by the relevant authority. It may sound like a
scenario from popular crime and spy stories, but there is growing evidence of police
forces rooting out corruption in this manner.

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Finally, there is the media as whistle-blower. This includes the journalist as

reporter when approached on the initiative of an organisational whistle-blower, as
well as the journalist as initiating investigator. For example, there have been many
highly publicised investigative current affairs programmes on television ± such as
Carte Blanche, a broadcast by M-Net in South Africa ± where investigative
journalists have conducted research based very much on material provided by a
company employee. Carte Blanche screened an extensive programme on whistle-
blowing on 17 October 2004 and interviewed two whistle-blowers, as well as
Richard Calland, who helped to draw up the Protected Disclosures Act. He is the
executive director of the Open Democracy Advice Centre, which offers legal advice
to whistle-blowers.

3.4 If something is wrong, what should an employee do?

In practical terms, if people are concerned about corruption or serious wrongdoing
in, or by, an institution, they have the option to remain silent; to make this known
internally or report it to the responsible person; or to blow the whistle externally
to the authorities or the media. The choice is often informed by issues of
economic dependence and/or legal obligations of confidence owed to employers
(Borrie in Camerer 1996, 2). Besides the real fear of victimisation resulting from
such disclosures, a primary dilemma involves the conflicting loyalties between the
desire to follow moral beliefs and expose misconduct, and the organisational
pressures to conform to a culture of loyalty and confidentiality, albeit misplaced
(Camerer 1996, 2).
The option holding the least risk for both the individual worker and a responsible
institution that comes across corruption is to remain silent. The results of a culture of
silence are, first, that responsible employers are denied the opportunity to protect
their interests. Second, unscrupulous competitors, managers or workers are given
reason to believe that `anything goes'. Lastly, it supports the contention that society
focuses more on compensation and punishment than on prevention and deterrence.
Addressing the effects of a culture of blowing the whistle internally in the public
sector, the UK Committee on Standards in Public Life (1996, 22) commented that
placing staff in a position where they feel driven to approach the media to ventilate
concerns is unsatisfactory both for employees and the institution. It is far better for
systems to be put in place that encourage staff to raise worries within the institution,
yet allow recourse to a higher authority when necessary. The self-interest of the
institution in whistle-blowing is currently far better recognised and a few large
institutions have recently begun to use outside advice lines to encourage and reassure
staff to raise concerns about wrongdoing. These developments have been given
added impetus ± in legislation promulgated in many countries in the western world ±
by legal requirements to demonstrate due diligence, particularly where safety,
competition and finance are concerned (Dehn and Borrie 2001, 5).

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If, however, it were not safe and accepted for people to blow the whistle
internally, the only option would be for them to disclose the matter externally ±
whether to the authorities or more publicly. This is an increasingly important matter,
since the opportunities for such wider disclosure ± particularly to the media and
public interest groups ± are likely to be increased with new technology. A relevant
example to consider in the context of any anti-corruption measure is where a worker
or an audit firm discovers, or reasonably believes, that account books or entries may
conceal bribes. If they feel unwilling or unable to blow the whistle internally, the
only options open to them will be to blow the whistle outside the organisation, or to
stay silent (p. 6).
In most legal systems, there is no protection for a worker who makes an outside
disclosure ± even if it is in good faith, justified and reasonable. Accordingly, such
disclosures are often made anonymously, making the claim difficult to investigate
and even impossible to remedy. Anonymity is also no guarantee that the source of
the information will not be deduced. In the worst cases, such people will often have
to forfeit their career. If their plight then attracts media attention, this can only
discourage others from sounding the alarm (p. 6). Furthermore, the near certainty
that an outside disclosure will lead to serious reprisals means that the matter is often
not raised until the worker is leaving the company. The problem will most often be
much worse (indeed, the disaster may have happened) by this time, the evidence will
be old, and the motives of the whistle-blower may allow the wrongdoer to distract
attention from the corruption (p. 7).

4. What happened to the whistle-blowers?

Despite the best rules, regulations and legislation to protect whistle-blowers, the
reality is that whistle-blowers are often subjected to the full force of retaliation, if
they are alive to relate their experiences. Some examples of incidences of whistle-
blowing are provided below, in an attempt to highlight both the realities of people
courageous enough to speak out about wrongdoing, as well as the shortcomings
that hamper whistle-blowing.

4.1 Deaths in Lenasia

The example of factory workers who blew the whistle on unacceptable and
dangerous working conditions in a factory in Lenasia in South Africa shows, on
the one hand, a situation that is far less complex than financial fraud and
therefore more easily remedied, but, on the other hand, it shows the devastating
effects of what can happen if a deaf ear is turned to a whistle-blower's concerns.
Concerned employees provided notice in writing to the Department of Labour
about working conditions at a chemical factory in Lenasia. Apparently, workers
were locked in the premises during working hours in unsafe conditions. These
included being locked up with gas bottles for up to 16 hours, fire extinguishers

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that were not in working order, lack of ventilation and the absence of an
emergency alarm system. The conditions were inexcusable if not illegal. The
Department of Labour did not respond appropriately to these complaints.
Although little is known about the management of the company, the facts that are
known suggested that it would not have been an environment where concerns
could be raised in the trust that some action would be taken to rectify these, or
that workers would not be discriminated against. However, three months after the
complaint made to the department, 11 factory workers died a fiery death, while
locked inside the premises, when gas bottles exploded. Failure to address
legitimate concerns when they were raised resulted in innocent workers paying
the ultimate price (cf. Camerer 2001, 1).

4.2 Chasing justice

Despite provisions in the law to protect people blowing the whistle on corruption,
retaliation seems to remain a reality. Thus, the Business Day reported on 20
August 2004 that `Glen Chase, the official responsible for blowing the whistle on
former Northern Cape transport MEC John Block's alleged corrupt practices, was
fired yesterday for insubordination and the unauthorised release of confidential
state information' (Mmushi 2004).
Block resigned in December 2003 after revelations by Chase, a senior state
accountant in the Department of Transport and Public Works in Kimberley, about the
misuse of public funds. Not only did this include suspicious claims for expenses, but
also irregularities in contracts running into millions of rands awarded by the
department. Chase approached his supervisor, whose response left Chase with only
two options: keep quiet or take his suspicions elsewhere (Carte Blanche 2004).
Chase made a representation to the Scorpions and was suspended from his duties
in the department eight days later on charges of fraud and threatening a fellow
employee. The provincial auditor-general was called upon to undertake a forensic
audit, which supported many of Chase's claims.
At this stage, no charges have been brought against either Block or any other
employee in the department, and the investigation is ongoing. The only action the
department has taken as yet was to fire the whistle-blower. Members of the
Democratic Alliance called his dismissal a `bad day' for South Africa, if it is
indicative of how whistle-blowers are treated (Mmushi 2004).
Chase was not the only employee to be dismissed from the department. Sumaya
Rossouw, Block's former administrative secretary, is also claimed to have been
instrumental in Block's resignation. She was found guilty of fraud and corruption in
a disciplinary hearing, but said the charges `were intended to victimise her for
exposing corruption' (Mmushi 2004).

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Legal opinion in this case maintains that, if Chase had followed the correct
procedures, `he should strive for reinstatement and compensation' (Gutto quoted by
Mmushi 2004). However, this case illustrates that the road ahead for anyone choosing
to blow the whistle on corruption may be fraught with dangers and personal hardships.

4.3 Beige is the colour of corruption

Andre du Toit, the former financial executive of Beige Holdings, maintains that
corporate whistle-blowers pay a very high personal price for showing enough
courage to expose corruption (Business Day 3 August 2004). When he took his
concern to the company's chairperson, he was told that he `was not playing the
game. I ask[ed] him, ``What game are we playing? What rules are involved in this
game?''' (Carte Blanche 2004).
Du Toit joined pharmaceutical and cosmetics company Beige Holdings in June
1999. They company was in the process of completing year-end accounts and du
Toit immediately realised that something was amiss:
It seemed as if the company's amazing performance on the stock exchange was
based on fictitious sales. [He] checked up on the companies that Beige was
supposedly making the sales to . . . The companies did not exist . . . They went
as far as to create fictitious people . . . Mr Moby Gapp, ja was a character. He
had a company logo, he had a vision, he had a mission; he had everything a
company could possibly have. There were faxes, contracts, birthday cards . . .
everything people do . . . Moby Gapp also happened to share his business
address with one of the Beige directors (Carte Blanche 2004)

After finding that sales figures were inflated and money ended up in the personal
bank accounts of directors, du Toit took his concerns to the chair with five things
they could do to rectify the situation. Nothing happened. He approached a
shareholder in the company and `hell broke loose. Two weeks later he was
suspended for disclosing confidential information to third parties' (Carte Blanche
2004). Harassment and intimidation followed, his telephone was tapped and death
threats were made against him.
Du Toit is frustrated that after five-and-a-half years nothing has come of this
case: `If we see people being brought to justice because of white-collar crime in
South Africa, people will start to use the [Protected Disclosures Act] and other
avenues available to them. At the moment people aren't, because in general they
don't believe in the justice system' (Carte Blanche 2004).

4.4 Even the justice department cannot escape corruption

The recent conclusion of the case of Mike Tshivonga, a deputy-director in the
Department of Justice, gives cause for hope that whistle-blowing may be more
effective than is often maintained.

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Tshivonga brought serious accusations against former justice minister Penuell

Maduna last year. It centred on a so-called questionable relationship with Enver
Motala, a public sector liquidator. It was claimed that Maduna's relationship with
Motala led to `abuse of the infrastructure and staff of the justice department for the
purposes of advancing his own personal interests', and of `endangering South
Africa's criminal justice system' (Sergeant 2004).
The allegations gave rise to published attacks by Maduna on Tshivonga in which
he was called a `dunderhead', as well as `the most timid public servant. At worst he
is the sort of person who would not be able to box himself out of a wet paper bag'
(Sergeant 2004, 14). He was further lambasted in the press, and had to withstand
severe badgering by a senior counsel advocate, appointed by the Master's Office, the
justice department unit responsible for appointing liquidators, during a `417' court
enquiry into the liquidation of the Retail Apparel Group (RAG).
These details were reported at length in the press in a way that put Tshivonga in
a rather poor light. Complaints to the Press Ombudsman in this regard, brought by a
friend of Tshivonga, were dismissed in a response that was `surprisingly thin'
(Sergeant 2004, 14).
Maduna was replaced as justice minister after the elections on 14 April 2004. At
the beginning of July 2004, Motala and six department officials were arrested for
fraud and corruption. Tshivonga cleared his name when he substantiated all the
claims made against Maduna in a recent disciplinary hearing. He has been fully
reinstated in his position in the department.

5. Changing silence to responsible whistle-blowing

The primary aim of a culture of whistle-blowing is to create an environment in
which concerns about corruption and wrongdoing can be properly raised and
addressed in the workplace or with the person responsible. Crucially, it sees the
whistle-blower as a witness, not as a complainant. Where communication
channels in organisations are designed for grievances and complaints, that is how
the workforce will use them. In the context of concerns about abuse, it is
important to bear in mind that malicious and aggrieved people already make
damaging disclosures in the absence of any recognised whistle-blowing policy.
Recognising this, a whistle-blowing culture should be concerned with the silent
majority who think it is not in their interests to blow the whistle on corruption or
serious wrongdoing. A whistle-blowing policy will help institutions and societies
to deter corruption and wrongdoing where a significant minority of those who
now stay silent can be encouraged to see internal whistle-blowing as a viable, safe
and accepted option (Dehn and Borrie 2001, 9).
The main beneficiaries of a culture that disapproves of, and penalises, people
who blow the whistle in good faith are those few corrupt institutions and individuals.
Knowing that the alarm will not be sounded, they are confident that their
wrongdoing (especially if it is corruption or bribery) will go undetected and

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unpunished. (In any case, when the successful investigation and prosecution of
criminal activity outside of the workplace depends overwhelmingly on the
information the police receive, it is not clear why the communication of information
about wrongdoing in organisations is generally assumed to be undesirable.) Quite
apart from people with a predisposed criminal intent, the current culture adversely
affects the conduct of the great majority of people. For them the strongest deterrent is
the fear of being caught, and the shame and embarrassment that go with it. Where a
culture of secrecy and silence exists, otherwise reasonable people may be tempted to
engage in malpractice because they believe they will not be caught. Equally, if such
a culture exists in a society, then otherwise responsible institutions may feel they will
be at a competitive disadvantage if they do not also pay bribes or engage in illegal
practices (p. 9).
There is a strong undercurrent in the literature on public administration that
suggests the existence and importance of a workplace environment that is hospitable
to whistle-blowing activities. To this end, prudent employers should take steps to
minimise risks and negative exposures by establishing a positive culture of whistle-
blowing. Whistle-blowing can also be an effective early warning system. Employees
in the front line know better than anyone what is going on in their area. All kinds of
benefits may accrue from listening to them. But not doing so may cause a local
difficulty to grow into a crisis. Not knowing where to turn in a crisis can also be
extremely stressful for employees who may, as a result, feel cornered into acting in a
way that is not in the interests of the employer or themselves.
Under the Protected Disclosures Act of 2000, the absence or ineffectiveness of
whistle-blowing mechanisms within an institution may well be enough to protect an
employee against sanctions for having disclosed confidential information to a third
party. This is not conducive to effective damage limitation.
A whistle-blowing culture cannot succeed without a strong and clear signal from
the very top of the institution that it is against corruption and is resolved to go about
its business lawfully. Such a culture will provide assurances against reprisals for
whistle-blowing on wrongdoing. These will apply even where the whistle-blower is
mistaken, provided he/she acted honestly and reasonably. While the details of a
whistle-blowing policy and procedure will vary from one institution to another, it is
imperative that they are put into place and that employees are encouraged to come
forward when the need arises.
South Africa is at the forefront of modern legislation with its Protected
Disclosures Act. However, from the examples provided above, it is clear that all is
not well with its implementation. Some of the problems that have been highlighted
by these and other examples, as well as by whistle-blowers themselves, include
stipulations in the law that are either vague or confusing, the failure by the criminal
justice system to act upon accusations brought by whistle-blowers, retaliation against
whistle-blowers, among others things, in the press and by employers who are often
too ready to `kill the messenger'.

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Richard Calland, the executive director of the Open Democracy Advice Centre
and one of the drafters of the Protected Disclosures Act, has recently pointed out that
the Act needs revision, particularly to give the honest witnesses of wrongdoing who
are prepared to come forward more protection. He said: `We have to make it
ordinary for people to blow the whistle. We have to make it so that people {who?}
are not born heroes, who are just doing their ordinary work; to make them feel
comfortable to come forward, and only then can we say that whistle-blowing policy
law has succeeded' (Carte Blanche 2004).
Du Toit pointed out that many people in South Africa do not have knowledge of
the Act and how it works. But even then, because wrongdoing so often occurs at the
most senior levels of companies and organisations ± as the examples showed ± many
people would be simply too scared to do anything. He also maintains that the Act
contains some flawed terms ± for example, the requirement of the whistle-blower to
prove that a disclosure is made in `good faith', while the offences that are perpetrated
never have anything to do with `good faith'. The Act suggests that the seriousness of
the offence must be considered and whether it is likely to continue, and questions
whether any employee can establish whether a managing director will continue to
perpetrate fraud and corrupt practices. The Act requires that an act of whistle-
blowing must be in the public interest. Surely, the eradication of corruption and
related crimes is always in the public interest (Business Day 3 August 2004).
After the case against Tshivonga and his public humiliation in newspaper
reports, Professor Anton Harber of the University of the Witwatersrand has
maintained that the Press Ombudsman should take more interest in cases involving
whistle-blowers and that `he should see it as part of his duty to protect' them
(Sergeant 2004).
One of the more important issues raised by the above examples is the lack of
response from the criminal justice system in prosecuting cases involving whistle-
blowing. In the case of du Toit, nothing has happened in the past five-and-a-half
years. In the case of Tshivonga, no charge sheet has yet been put before Motala, and
in the case of Chase, the police are still investigating allegations, and no charges
have been brought against Block and the employees implicated in the allegations
(Carte Blanche 2004).
The Law Commission's review showed that 83 per cent of cases reported to the
police never reach court. The sentiment in the corporate world seems to be that
corporate criminals are not brought to book. Frangos, the former Corpcapital
director, claimed that the `Scorpions and police are ill-equipped to understand
fraudulent financial engineering, and the prospect of these criminals ending up
behind bars is extremely slim' (Rose 2004). Although the Scorpions and the police
deny this, the examples of whistle-blowing incidences provided here do allude to the
fact that all may not be well in the process of investigating crimes on which someone
blew the whistle and successfully bringing those accused to court. This would go a
long way to ensure that whistle-blowing becomes `ordinary'.

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Finally, Calland elaborated on changes that could be made to the Protected

Disclosures Act that would make it more effective: `it has to be made law . . . we
have to make it mandatory . . . for companies to put in place whistle-blowing
procedures and policies. Secondly, we have to raise the ceiling on the damages that
will be awarded against employers that do allow a reprisal to take place against the
whistleblower. In other words, we have to create a disincentive for a bad, unhealthy
response to a whistleblower' (Carte Blanche 2004).

5. Conclusion
The phenomenon of whistle-blowing may be better understood if the parties who
study it ± largely ethicists, lawyers and social scientists ± can agree on a basic
definition of whistle-blowing and, in particular, of a whistle-blower. Whistle-
blowers are more likely ordinary people who find themselves in unusual
circumstances, forced to play a part in the dynamic and complex process of
whistle-blowing. It is important to reflect on the impact of retaliation and
victimisation on a person who, in good faith, is thrust into the role of whistle-
blower. In this regard, a reconsideration of the Protected Disclosures Act is a
welcome step in improving the situation for whistle-blowers.
Another important step in this direction is for employers to acknowledge that
whistle-blowing is a reality, which should result in changing both the institution's
behaviour and that of the potential whistle-blower. Without an understanding of the
realities of the whistle-blowing process and the dilemma of the whistle-blower, there
cannot be effective whistle-blower protection. Procedures and legislation that are
introduced to protect whistle-blowers ought to encourage disclosure within
institutions. A non-confrontational form of whistle-blowing best serves any
institution and the whistle-blower is best served by ensuring adequate protection
to minimise the possibility of retaliation. This will help ensure that, even if the
whistle-blower is mistaken, no unwarranted damage is done to the institution or to
individuals within it. Critically, it provides a safe and viable alternative to silence.
Clearly, a whistle-blowing policy can only be an effective mechanism for
deterring organisational wrongdoing if all involved parties readily accept its use as a
valid and ethical control mechanism to combat corruption and fraud. Such a policy
will also encourage institutions to be receptive to concerns about corruption and to
deal with them effectively. Equally important, it will reassure those in charge that
managers will address the matter properly. It will give a clear indication to the
authorities that the organisation is seeking to operate responsibly and this will
influence the conduct of any investigation that may prove necessary (whether
prompted by a whistle-blower or not). If such a culture is to maintain the confidence
of the wider society, any policy must also address the particular circumstances in
which a wider disclosure may be justified. Essentially, this should be an option of
last resort and, where reasonable, would include disclosure to the media.

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References
Business Day. 2004. Corporate whistle-blowers pay high price of courage. 3 August.
www.bday.co.za.
Camerer, L. 1996. Ethics and the professions: Blowing the whistle on crime. African
Security Review 5 (6).
Camerer, L. 2001. Protecting whistle-blowers in South Africa: The Protected
Disclosures Act, No. 26 of 2000. ISS Paper No. 47. Pretoria: Institute for Security
Studies.
Carte Blanche. 2004. Whistleblowers. Transcript. www.mnet.co.za/CarteBlanche/
(accessed 17 October).
Dehn, G and G. Borrie. 2001. Whistle blowing: A new perspective. October 2001.
London: Public Concern at Work. www.pcaw.co.uk
Drew, K. 2003. Whistle blowing and corruption: An initial and comparative review.
London: Public Services International Research Unit.
Ettore, B. 1994. Whistleblowers: Who's the real bad guy? Management Review 83 (5)
(May).
Feldman E. 1999. Protection for whistleblowers. Paper delivered at the 9th International
Anti-Corruption Conference (IACC). www.transparency.org/iacc/9th iacc/papers/
days3/ws7/d3ws7 efeldman.html.
Glazer, M. P. and M. G. Glazer. 1989. The whistle blowers. New Jersey: Basic Books.
GlobeScan. 2004. New poll finds Africans favorable toward globalization, but think
rich countries are not treating them fairly. Press release, 16 June. www.globescan.-
com.
Mmushi, T. 2004. Block's whistle-blower gets sack. Business Day. 20 August.
www.bday.co.za.
Near, J. P. and M. P. Miceli. 1985. Organizational dissidence: The case of whistle-
blowing. Journal of Business Ethics 4.
ÐÐ. 1995. Effective whistle-blowing. Academy of Management Review 20 (3).
ÐÐ. 1996. Whistle-blowing: Myth and reality. Journal of Management 22 (3).
PSIRU: http://www.psiru.org/.
Rose, R. 2004. Are SA's corporate big fish too clever for the Scorpions to sting?
Business Day. 13 September. www.bday.co.za.
Sergeant, B. 2004. Whistle-blowing to the tone-deaf. Moneyweb. 25 July.
www.m1.mny.co.za.
UK Committee on Standards in Public Life. Second report. May 1996.
UNICORN. http://www.psiru.org/corruption.
Republic of South Africa. The Protected Disclosures Act, 2000 (Act. 26 of 2000).
Pretoria: Government Printer.
Westin, A F. 1981. Whistle blowing: Loyalty and dissent in the corporation. New York:
McGraw-Hill.

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