Corruption and whistleblowing in South Africa, following the PWC report

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 By Alison Tilley, 20 February 2014

The latest PWC Global Economic Crime Survey for South Africa, released yesterday,  identifies a trend in the effectiveness of whistleblowers in reporting crime. Not surprisingly the trend is downwards – in 2007, 16% of crime was detected through  whistleblowing, and now that has dropped to 6% in 2013. The writers of the survey seem a bit puzzled about why this is, given that so many companies do actually have whistleblowing policies in place.

 We would suggest the answer lies in the legislative and other shortcomings in protecting whistleblowers South Africa.

 There are implementation gaps and deficiencies in the use and application of the existing laws which undermine the safety of whistleblowers. Those laws are themselves ineffective. This contributes to the lack of confidence in the ability of the law to protect people – ultimately contributing to the declining rates of whistleblowing in South Africa. Only 3 out of 10 South Africans believe that the law does effectively protect whistleblowers.

 There has been a steady decline in the number of people who describe themselves as blowing the whistle.

 In 2011, 18.4% of respondents said that they had blown the whistle. This is down from 25.3% in 2007. We believe these drops in numbers of people blowing the whistle can be directly related to the perception that the law does not effectively protect whistleblower.

 We need better protection for whistleblowers.


Corruption and #sona14

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Corruption is a hungry hyena loose in the land. The State of the Nation speech by President Zuma did not speak to the issue convincingly. He acknowledged that South Africans are united in wanting a corruption free society. But his idea that fighting corruption within the public service is yielding results seems misguided.

He cites the National Anti-Corruption Hotline by the Public Service Commission as a leader in corruption busting. The Public Service Commission  is less confident: In its latest review of the hotline it has managed since 2004, the Public Service Commission complains about the same problems it identified in 2008. It says departments “generally do not” investigate the cases referred to them. They put this down to a lack of investigative capacity, or specialised units.

We know that one of the most effective ways to root out corruption is to support and encourage whistleblowers. So how are we doing with that?

Back in the day, the Public Service Anti-Corruption Strategy was approved by Cabinet in January 2002. This Strategy contained nine considerations including improved access to report wrongdoing and protection of whistleblowers and witnesses

So how are we doing with that? Well, not so much. The law has not been changed, despite a South African Law Reform Commission report recommending changes. I think that was in 2005? Well, a long time. Its not a bad report – we had to PAIA it – and the draft law is not bad. But things have moved on since then. Then we worried about whistleblowers getting fired. Now we worry about them being assassinated. Now we need to look at much more aggressive steps to protect whistleblowers. Security that doesn’t require witness protection is the challenge. And fast – the time it takes to plan a hit is not long.

 What are the labour law changes we need now? The Protected Disclosures Act is amended for maximum benefit by:

b.    Extending the number of agencies to whom a protected disclosure can be made to all chapter 9 institutions, all law enforcement structures, all professional oversight bodies, and members of parliament.

c.    Allowing for confidential disclosures.

d.    Create positive obligations to create whistleblowing policies.

e.    Create positive obligations for annual reporting on policies and actions taken in terms of policies.

f.     Lifting the cap on compensation.

 And potentially introducing rewards for whistleblower, based on the amount the state recovers. In the USA, that can be up to 30%. 30% of R30 billion? That a nice chunk of change for taking that kind of risk.

 That’s where the conversation needs to be. Not the hotline.


A very dangerous discourse: criminalising protest

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Today, the African National Congress applied for a protection order against a march of the Democratic Alliance to Luthuli house. When I got over my amusement at the idea of the DA posing a physical threat (what was going to happen, a mass scone throwing contest?), I became sincerely disturbed at both the action itself, as well as the language involved.

The power of language is profound. If you have every studied within a Humanities Faculty this truism will have been force fed to you many times. And the language used by the ANC in this case also marks a radical shift in political strategy. While government has often sought to block regulated gatherings through the processes involved with the Regulation of Gatherings Act (so for instance, claiming inadequate pre-warning), the ANC are using a protection order after a legal gathering has already been allowed. Whilst this may obviously be a result of an ANC versus DA pre-election fracas (as opposed to a government versus citizen bureaucratic contest), we need to note this shift in strategy with vigilance.

The shift in political strategy comes bathed in a worrying rhetoric. And this rhetoric equates protest directly to an act of violence. A regulated gathering is not an act of aggression. To label it as such, even if under the umbrella of petty politicking, is at best negligent, but at worst a continuation of a malicious agenda. As the elections come closer, a language that seeks to paint any normal civilian dissent as ‘dangerous’ and ‘a threat’ begins to patently demonise opposition in a way that openly contradicts the right to protection of our political beliefs, freedom of expression and our right to protest. That the DA is a political party should in no way affect the debate, as it is constituted by South African citizens whose rights are upheld in the Constitution.

It does not take a leap of the imagination to see how this language contributes to the extreme violence meted out against protesters by our South African Police Services. Legitimising force as a response to political issues, whether by language or the turning of a blind eye, is an assault on our citizens by the state. The state must accept responsibility for the violence of the police not only because of usual ideas of legitimacy and responsibility, but because every time the dominant forces in our government come out and say that a legitimate protest is an act of violence, they help squeeze the trigger finger of a jittery policeman.

A post by Gabriella Razzano

Access to information and independent media are essential to United Nations Post-2015 Development Agenda

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The text of the joint statement ARTICLE 19 and GFMD are asking you to sign follows in English/French/Portuguese/Spanish/Arabic:


Access to information and independent media are essential to United Nations Post-2015 Development Agenda


21 January 2014


Human development in the coming decades will depend on people’s access to information. Ground-breaking new media and technology are enabling major expansion of economic, social and political progress.


We believe that freedom of expression and access to independent media are essential to democratic and economic development. Freedom of speech and the media are means to advance human development and are ends in their own right.


We, the undersigned, therefore call on the Open Working Group to fully integrate the governance recommendations of the UN High Level Panel of Eminent Persons Report (A New Global Partnership: Eradicate Poverty and Transform Economies through Sustainable Development) into the proposed Post-2015 Sustainable Development Goals, specifically in relation to its recommendations to:



  *   Establish a specific goal to “ensure good governance and effective institutions”

  *   Include as components of this goal a clause to "ensure people enjoy freedom of speech, association, peaceful protest and access to independent media and information" and to "guarantee the public's right to information and access to government data"




[more signatures to follow]


If you would like to sign on to the statement, please contact Charlotte Gill, Campaigner at ARTICLE 19, on This email address is being protected from spambots. You need JavaScript enabled to view it. <mailto: This email address is being protected from spambots. You need JavaScript enabled to view it. > by 17.00 GMT Fri 31 Jan.

This year, international negotiations are taking place about a Post-2015 development framework to replace the Millennium Development Goals, which end in 2015.

ARTICLE 19 will be working throughout this year to campaign for a governance goal that includes freedom of expression and right to information. If you are interested in finding out more about our Post-2015 work or possible collaboration, please get in touch with Dave Banisar directly.


 Why access to information must be a central pillar in the future of development<


ODAC Submission to the shadow report process to the African Committee of Experts on the Rights and Welfare of the Child

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ODAC submission to the shadow report to the African Committee of Experts on the Right and Welfare of the Child

Centre for the Book 23 January 2014


The right to access to information


The Secrecy Bill was introduced in 2010, formally titled the Protection of State Information Bill. This legislation has now been passed by Parliament at the end of 2013, and awaits the signature of the President.  This legislation was met by severe criticism from a number of quarters. The legislation sought to allow the State Security Agency to classify a very wide range of information on vague grounds, and introduced severe penalties for breaches of the law. In one of the most criticized aspects of the law, no provision was made for persons in possession of classified information which exposed unlawful activity to blow the whistle, or make such information public.


The legislation was significantly changed, after an unprecedented civil society mobilization against the most egregious features of the draft law. The law as it has been passed is still described by the Right2Know campaign as failing to pass constitutional muster, as well as containing ill advised policy decisions. The number of agencies who can classify has been reduced, the scope of information that can be classified has been narrowed, and protection for a limited group of whistleblowers introduced.


The most significant impact of the legislation is on the right to freedom of expression and the right to access to information. These rights, contained in the South African constitution, may only be limited by a law of general application to the extent that this is reasonable and justifiable in an open and democratic society. These rights apply to all persons under the South African constitution, including children.


It may well be asked what the impact of classification legislation will be on children. There are three areas of concern:


1.     The right of access to classified information by Chapter Nine institutions


Chapter Nine institutions are provided for in the Constitution for the protection of rights. They include the South African Human Rights Commission and the Public Protector. These institutions require access to government records in order to assess the implementation of human rights, including the rights of the child, and in order to investigate maladministration in the public sector, including in relation to children.


Chapter 9 institutions such as the public protector, auditor-general and the Human Rights Commission would have to hand over to the police any classified documents that came into their possession, or face prosecution for failing to do so. This potentially limits the role played by these institutions.

2.     Research


Several universities have released statements on the grounds that the Secrecy Bill threatens academic freedom, in that the Bill will make teaching and research on aspects of the security cluster difficult and even risky. Higher Education South Africa (HESA), the national association of University Vice-Chancellors, also made written and oral submissions to the NCOP on the Bill.


The area of most concern in relation to children is classification of police information, and the information held by prison’s services. Information in relation to children in conflict with the law and the subject of both police or correctional services action may be classified on what are overbroad and unclear grounds. While this is of immediate concern to those dealing with children, the question of access to the information by researchers has been raised as a concern.


3.      Police


The Secrecy bill allows classification of police activity at station level by relatively junior police people. The question of information in relation to children in conflict with the law remains of concern. If such information is released by those who come into possession of it, even where unlawfulness is disclosed, both the discloser and the subsequent possessor of the information are criminalised.


The right to privacy


The right to informational privacy is one which is now regulated by South African law in the Protection of Personal Information Act. This was signed into law towards the end of 2013 by the President, but is yet to come into effect.


The Act regulates the privacy of all individuals, in that it regulates the processing of all personal data.  Known as data protection, this is “the legal protection of a person with regard to the processing of data concerning himself by another person or institution.”[1] This processing can threaten privacy in two different ways:[2] the compilation of the data threatens the individual's privacy, and false data leads to an infringement of identity.


The Act gives effect to eight core information protection principles, namely processing limitation, purpose specification, further processing limitation, information quality, openness, security safeguards, individual participation and accountability. 


The Act creates an ombud to oversee the law, which will be an independent information protection commission. Also, and critically for the Promotion of Access to Information Act, the Committee agreed that the commission would take responsibility for implementing that Act.


The Regulator will consist of a chairperson, and four other ordinary members, two of whom must be full time. The appointments are made in the same way as Chapter 9 institutions in that they are nominated through a committee in the National Assembly of Parliament, approved by the Assembly, and must then be appointed by the President, and they can only be removed by  a resolution by the National Assembly.


The two full time members deal with the Promotion of Access to Information Act and the  Protection of Personal Information Bill respectively, under the guidance of the Chairperson.


The powers of the Regulator are extensive, including education, monitoring and enforcing compliance, consulting, handling complaints, conducting research and reporting to Parliament, and facilitating cross boarder co operation, especially important in relation to cross boarder data flows.


The legislation takes a strong line on the processing of personal information of children. In general the legislation prohibits the processing of the personal data of children, which are defined as persons under 18.  The prohibition on processing personal information of children does not apply if the processing is— (a) carried out with the prior consent of a competent person;

(b) necessary for the establishment, exercise or defence of a right or obligation in


(c) necessary to comply with an obligation of international public law;

(d) for historical, statistical or research purposes to the extent that—

(i) the purpose serves a public interest and the processing is necessary for

the purpose concerned; or

(ii) it appears to be impossible or would involve a disproportionate effort to

ask for consent,

and sufficient guarantees are provided for to ensure that the processing does

not adversely affect the individual privacy of the child to a disproportionate

extent; or

(e) of personal information which has deliberately been made public by the child

with the consent of a competent person.


The Regulator may authorise a responsible party to process the personal information of children if the processing is in the public interest and appropriate safeguards have been put in place to protect the personal information of the child.


One of the consequences of this may be on the access to social media by children. Providers of social media generally require children to be over a minimum age before they can use social media, which requirement relies on the child self disclosing their age. However, children under 18 do use social media, and providers need to comply with the heightened requirements around the processing of personal data. If a complaint to the regulator were lodged in relation to a breach of information privacy by a service provider, then the Act allows for penalties to follow.


However the creation of a regulatory authority may improve the accessibility of state information for the implementation of children’s rights.


Cape Town


[1] Neethling, Potgieter, Visser (ed) (n 74) at 291

[2] Neethling, Potgieter, Visser (ed) (n 74) at 295