How can whistleblowers be empowered and protected?
Both public sector corruption and private sector financial shenanigans share some important commonalities: Both undermine trust and confidence in society, and serve to reduce investment, growth and job creation. Another commonality is that it is very likely that insiders always know what's going on.
An insider’s fear of speaking up is wholly justified, if only based on the tragic stories of the whistleblowers who have put their heads above the parapet: Careers have been derailed, livelihoods undermined, reputations have been attacked, and personal safety has been put at risk.
Having seen decades of investor losses and government decay, and as both responsible investors and members of civil society, Futuregrowth Asset Management and Old Mutual Investments jointly commissioned Just Share to review South Africa’s legal and regulatory framework around whistleblowing. In addition to a review of the landscape we asked Just Share to opine on the questions “What’s going wrong?” and “How can whistleblowers be empowered and protected?”
Just Share’s work shows that South Africa has a wide range of legislation and regulations designed to encourage whistleblowing. While that sounds good, the report highlights a few problems:
- First, without legal advice, a prospective whistleblower has almost no prospect of knowing what information they should gather, how to blow the whistle and to whom, and under what regulation or framework to do so. Legal advice should be provided in advance, to give the whistleblower the best odds of success and protection.
- Second, there appears to be no effective protection of a whistleblower’s anonymity. This failure will fairly quickly “paint a target” on a whistleblower’s back – and provides the true perpetrators with someone to villainise.
- Third, the remedies and protections afforded to whistleblowers are nearly all in the area of labour law. That means that whatever victimisation or retaliation the whistleblower faces — whatever costs they incur or losses they suffer — they can only seek redress through labour law (CCMA) action, with limited recompense or reimbursement.
The sum of these flaws is that whistleblowers will likely face aggressive, well-funded attacks from highly motivated adversaries – and they will face those attacks alone and without any funding for legal or income support. The risks are enormous, while the only sure reward is having “done the right thing.” As we say in investments, the “risk:reward ratio is badly skewed”, and it’s no wonder that 99 out of 100 people will choose to keep their mouths shut, or vote with their feet. In this context, the few, brave South African whistleblowers who have put themselves at personal risk should surely be called heroic.
What is clear is that South Africa’s framework – under the apex legislation of the Protected Disclosures Act – is failing to protect companies, agencies, the country and whistleblowers.
Beyond understanding the nature of the problem, we need to turn our attention to solutions. The realm of potential whistleblowing is very wide – from reporting plain old bad behaviour and breaches of internal policies, to large scale illegality or financial misrepresentation. This means that there are very few quick, easy, holistic solutions to the whistleblower challenge. For a start, the scope of remedies could include changes to laws, regulations or (even) the South African Constitution. Beyond that changes to companies’ whistleblower practices and protections; investors practices and requirements; auditing standards; market listing requirements; and more. And, there is a need to give advice and support to prospective whistleblowers, as well as the need to offer remedial support to those who have – or will – blow the whistle in the future.
It is thus clear that many constituents need to play active roles in their realms to help effect changes to policy and practice. As a responsible investor, our realm is to acknowledge both a) the reality of the weakness in whistleblower protections and b) the resultant damage to our investors, economy and society. Thereafter we can work with others to harness the newfound focus on responsible investing to change regulations, governance practices, and behaviours of corporations and SOEs who access investors’ funds. Essentially, more transparency, reporting, oversight, and consequences can play a role in protecting society and investors.
I trust each of you will read Just Share’s report with interest, seeking ways in which you can play a positive role in addressing the challenges of protecting and empowering future whistleblowers, and also supporting those who have already suffered from a broken system. DM
Author: Andrew Canter, Chief Investment Officer at Futuregrowth
Futuregrowth Asset Management (Pty) Ltd (“Futuregrowth”) is a licensed financial services provider.