“I do think the most valuable way both of rewarding and protecting whistle-blowers is to make of them seriously high-profile characters.”
These are the words of Corruption Watch’s former executive director David Lewis, speaking in early March at a webinar hosted by the Mail & Guardian and titled Amend South Africa’s legislation to include rewards for whistle-blowers.
Andreas Stargard of Africa-focused law firm Primerio International moderated the event, which also featured high-profile whistle-blowers Glynnis Breytenbach and Athol Williams, as well as Mary Inman, an attorney with the London branch of law firm Constantine Cannon, which represents whistle-blowers.
“The topic is particularly timely in light of the proposed and potentially upcoming legislation in various countries, including South Africa, regarding the disclosure and potential compensation of whistle-blowers and the protection, most importantly, of whistle-blowers after their information has been revealed,” said Stargard.
Lewis’s comment was made in the context of the ways in which South Africa can offer better protection to whistle-blowers than it does now. While acknowledging that sometimes there is a good reason for a whistle-blower to hide their identity, he emphasised that by making them “celebrated members of the community, near-untouchables, if you like”, that same high-profile position would protect them.
The activist has years of working with whistle-blowers under his belt, as Corruption Watch’s model is based on whistle-blowing and the reports the organisation receives determine the focus of its work, depending on what burning issue is occupying the minds of reporters at a particular moment.
“The likes of Cynthia Stimpel, Bianca Goodson, if they had national honours hung around the neck by the president at a public ceremony, and were treated with the same reverence our cricket captain is treated, in the same way our sports teams are greeted and revered, then I think they would enter the realm of those who are pretty much untouchable.”
For Breytenbach and Williams, the consequences have already been severe. The latter fled his home country towards the end of last year after blowing the whistle in 2019 on consulting firm Bain & Company, whose willingness to assist with restructuring (read: destabilising) certain state-owned agencies, such as the South African Revenue Service, was a major factor in the ruinous state capture that South Africa now grapples with.
In 2012 Breytenbach exposed the National Prosecuting Authority’s (NPA) refusal to prosecute two incidents, one of which was fraud and corruption charges against ex-crime intelligence head Richard Mdluli. She was suspended and although a disciplinary hearing acquitted her of wrongdoing and she successfully challenged her suspension, she later resigned from the NPA and joined the opposition DA as a member of Parliament.
No protection for whistle-blowers in SA
“Bain was involved in two big wrongdoings. The one big wrongdoing was its involvement … in state capture in South Africa. The second wrongdoing was its cover-up of its involvement in state capture,” said Williams, adding that while he did not witness the first, he was “a first-hand witness to the attempts to cover it up.”
After his disclosure, he discovered the hard way that in South Africa there is no protection for whistle-blowers, particularly public interest whistle-blowers. For 30 months now, he said, he has had no income and no support from the very government whose interests he protected.
“I’ve written e-mail after e-mail to the Presidency, appealing for support, appealing for physical protection. And I don’t even get replies to my e-mails. I’ve communicated with big business in South Africa, the big business associations, and they offer no support.”
To add insult to injury, he said, Bain continues to deny its involvement and in fact, still operates in the country, while the South African government and corporate sectors continue to ostracise whistle-blowers. “Not just neutral disinterest, but it’s been active. I’m actively discredited in the media and actively discredited in business circles.”
Living now in the UK on a temporary visa, and facing the possibility that he could be told to leave at any time, he describes his life as ‘tenuous’.
Breytenbach lamented the fact that Williams had not approached her. “I’m sorry that you’ve had that experience. And I want to tell you that if you’d contacted me, I would have helped you so I’m sorry that you didn’t.”
She added that her offer was still open should Williams want to take it up.
“I didn’t know where to turn,” he said. “There is no website to turn to. There’s no number to turn to. In fact, I did make contact with David Lewis’s office, but my timing was off because at the time I was going to meet Dave the Zondo commission already contacted me, so I cancelled the meeting.”
He could not even find a willing lawyer, Williams added. “Even after contacting some of the big law firms in South Africa and telling them of the 39 parties I implicate, not a single one of them would offer me any assistance.”
“You don’t have to worry about your tenuous existence,” Breytenbach said to him dryly, “because once you’ve told your story there’s no longer an incentive to kill you.”
This statement may sound humorous on the surface, but it is starkly indicative of the very real trials and dangers facing those who seek to expose corruption, especially on a grand scale. The corrupt have everything to lose and so, tragically, do whistle-blowers. We need only think back to the violent death of Babita Deokaran in August 2021 to realise this. And indeed, none of the participants laughed, or even smiled.
Despite these risks, many courageous people are still prepared to come forward with information on corruption, and being responsible for exposing much corruption that would otherwise remain secret, they are one of the most important weapons in this ongoing fight – so they should be treated as a valuable resource.
While whistle-blowing should be encouraged and incentivised, said Breytenbach, great care must be taken over how this is done. “Otherwise you’ll spend all your time on a wild goose chase, all in the hope of people receiving some kind of reward particularly if it’s financial.”
She is not in favour of buying information, she added. “Many people come to me … but they want money for their story. In my life I’ve never paid for information and I don’t intend to start now. So I’m very wary of financial incentives for whistle-blowers.”
In terms of protection for whistle-blowers, she said, the Protected Disclosures Act goes some way towards assisting whistle-blowers, but South Africa does not have a very sophisticated witness protection programme, and it has no whistle-blower programme.
“We don’t have sufficient money to resource the police and prosecution authorities to prosecute the matters that whistle-blowers bring to us. We certainly have no money to set up a sophisticated witness protection or whistle-blower protection programme. And that is always going to be a problem.”
Whistle-blower or plea-bargainer?
There are two kinds of whistle-blowers, said Breytenbach – one who is not necessarily complicit, and one who is complicit. “For instance, in the Bosasa matter Angelo Agrizzi likes to call himself a whistle-blower. I don’t regard him as such – he’s spilling the beans in the hope of getting himself either no jail time, or less jail time. He’s not doing it out of the goodness of his heart.”
It’s important to distinguish between those two types of whistle-blowers, she said. The whistle-blowers who should be incentivised and protected are those who do the right thing and are not necessarily complicit. “We want to make it worth their while but not necessarily with a financial reward. We need to protect them, and we need to build a legislative framework that does that. We have talked about strengthening the framework of whistle-blowing legislation – I’m not sure if we’ll get around to this year in Parliament, but quite likely next year – to make it easier for people to come forward, to offer them some form of protection or at least to prevent victimisation.”
Lewis agreed with this opinion. “I’m pleased that Glynnis has introduced the distinction between what is blowing the whistle and what is effectively plea-bargaining. These are people who’ve got to be thought about in very different ways.”
He did feel that incentives could be valuable, but cautioned that they could also be a moral hazard that entices people to blow the whistle to get revenge on their enemies or to primarily for the reward, while not providing particularly valuable or even truthful information. “This would waste a lot of investigative and prosecutorial time, so there are difficulties with financial incentives but I think it is something worth considering.”
Another valuable reward for any whistle-blower, Lewis added, is for them to see that their efforts have not been in vain. “There is nothing that demoralises whistle-blowers more, after they’ve taken the risks and provided the information, than when nothing gets done … if there is such a thing as a licence to do business, a company like Bain and indeed, a company like McKinsey should be denied a licence to operate.”
Those two aspects are the greatest incentives, Lewis said – to elevate whistle-blowers so they are held in the reverence they deserve, which is in the power of the government and the president to do, and to act decisively on the information that they provide.
The way forward
South Africa’s Public Disclosures Act is a retrospective tool, said Inman, and while it is a very important one, as whistle-blowers need protection against retaliation or future blacklisting or worse, it essentially only looks in the rear-view mirror. It is, therefore, just one of the pillars that should support whistle-blowers. The other two are empowering and rewarding.
She stressed that whistle-blowers “need to be empowered to bring the information forward to regulators who can act on it. Rewarding whistle-blowers is important, but so is the creation of an office of the whistle-blower inside an agency that clearly signposts, to a whistle-blower like Athol, who they should go to, how they should give that information, and do so safely. And – I have to disagree with David here – to be able to do so confidentially. A lot of whistle-blowers should just be able to serve as essentially confidential informants who are bringing that information to an agency.”
Inman was sceptical of the concern that offering financial rewards to whistle-blowers would prompt them to “bypass internal reporting mechanisms, because the carrot is so enticing.”
In her experience, she said, most clients do not report merely for the money, but try to report internally first before ever going external. “They don’t want to destroy their careers … I think that’s really important to know. It’s just not the case that there’s a parade of malicious, avaricious whistle-blowers. It’s not what we have seen. It’s not been borne out in the United States.”
This is partly because US legislation prevents the reporting of petty crimes in this context. For instance, to bring information to the office of the whistle-blower in the Internal Revenue Service, that must involve tax violations in excess of $2-million. This condition does not apply in South Africa.
Following on from this, and speaking to Breytenbach’s point of funding and resourcing prosecutions, she said: “If we open the doors or create an office of the whistle-blower, for instance, in South Africa’s Competition Commission, how are they going to keep up with the flood of tips? They’re going to get rid of ones that are just not eligible.”
She recommended that South Africa try to institute one of these programmes in the revenue service or Competition Commission. “When we empower whistle-blowers to bring the information forward, you will see that it’s a force multiplier and you’re going to start getting an enormous number of tips that actually help you do your jobs. Whistle-blowers help supercharge enforcement … so the money that you generate by giving tips that actually help create a roadmap and opportunities for serious enforcement, that money can go back and defend the very programme. I would say try it and see what happens.”
