(John McCann/M&G)
With 10 December celebrated as International Human Rights Day, it is important to emphasise that whistleblowers are human rights defenders because they expose wrongdoing and corruption.
The victims of corruption are the poor who do not receive their socioeconomic rights such as housing, water, food, education, health, or a safe environment because state funds are diverted into the pockets of the politicians. The language of “service delivery” cannot divert the truth that the people are being denied their rights. Once, in our history, the denial of rights was a rallying cry. Often this is not because of funding shortages but because of pure greed arising out of power.
Non-disclosure agreements are commonly found in the private sector where the competitive advantage of a business is protected when an employee leaves that operation. The argument is that trade and other secrets of that company should not make their way into another company undertaking a similar business. That would lead to a loss of profits or possible closure. When employees leave that business, they are gagged from revealing information gleaned during the period of employment.
This practice has made its way into most organs of state that mimic corporate practice without the risks involved. Our Constitution provides in section 41(1)(c) the following: “All spheres of government and all organs of state within each sphere must provide effective, transparent, accountable and coherent government for the Republic as a whole”. These provisions apply to all government departments in all the ministries, provinces, municipalities, public hospitals, state-owned enterprises and higher education institutions. But recent reports at the Zondo state capture commission confirm that this effective, transparent, accountable and coherent government appears to be, at best, merely aspirational and not the reality of South Africa’s lived experience.
I would like to argue that non-disclosure agreements in all organs of state are incongruent with our Constitution because they deny transparency and obscure accountability in many state-owned enterprises. This creates fertile ground for corruption. Non-disclosure agreements actively discourage whistleblowing under a clause that purports to protect the institutional reputation. When a settlement is reached, after a dispute between the employer and a whistleblower (not always under the umbrella of the Protected Disclosures Act or PDA), non-disclosure clauses are attached to that agreement, which effectively prevents any wrongdoing from leaking out into the public domain. I propose that any amended PDA address this shortcoming.
We also need to consider whose reputation is being protected. Often that would be the leader of that institution and not the institution itself. Unlike the private sector, which raises its own capital, these organs of state are funded or guaranteed funding by the taxpayers. So where is the risk? Loss-making monopolies like Eskom, Denel, and municipalities have been often recapitalised with more funds from the taxpayer. Indeed, there is no real loss of business to another because there are no competitors. Therefore, the argument from the private sector for the non-disclosure agreement in the public sector grows thinner. Non-disclosure agreements act as bludgeons against whistleblowers who question leaders who earn exorbitant salaries but have poor records on outputs. Non-disclosure agreements insulate the truth from entering the public domain.
Often boards of trustees or advisory members, which some organs of state are accountable to, fail in their fiduciary duties to ask the relevant questions to ensure accountability. They are handpicked individuals closely aligned with political parties, and they see their function as supporting the chosen leader without asking awkward questions. Corruption is fast-tracked when people chosen as the guardians of integrity look away. Perhaps it is time to increase the prosecutions of those who are derelict in their fiduciary duties. Indeed, I cannot recall a recent case as our criminal justice system continues to flounder.
To enforce a culture of silence over illegal acts such as assault or sexual harassment, some organs of state enter into non-disclosure agreements provided the employees leave quietly. This amounts to institutional aiding and abetting of crime which will never surface in public. Can we have a legal non-disclosure agreement when a bank robber returns stolen money? (“Here’s the money, no questions asked, just sign here.”) In settlement agreements at the Commission for Conciliation, Mediation and Arbitration, where a state organ is a party, a clause is inserted that ensures that the settlement amount is not made public, even though it is paid for by them. This protects the leadership from loss of face. How many resignations in state organs have taken place under non-disclosure agreements in which large sums of money were paid to the exiting employee?
When the whistleblower is gagged, the organ of state deals with the messenger harshly in ensuring that the truth is obscured or buried. Is it an illegal act to testify before a commission of inquiry set up by the president? Surely not. The reason executives behave in this way is that they do not have to pay the legal bills. To put an end to such reckless practices our courts should grant personal costs orders against officials who continue to litigate with taxpayers’ monies in such cases.
One expert maintains that non-disclosure agreements should be enforced only to the extent they are reasonable, or if they protect trade secrets or confidential information that makes it competitive. If these criteria are used in our courts, not many organs of state would qualify. Non-disclosure agreements in organs of state concluded by a whistleblower should be scrutinised by courts, and where they are not reasonable, they should be struck down. That might ensure that the focus is on the message revealed, and not on the messenger, therefore on the violation of human rights and not the persona of the whistleblower human rights defender.
This is an edited version of Dr Jaichand’s presentation at the Leaders for Integrity and Active Citizens Movement webinar on Whistleblowing and the Protected Disclosure Act on 8 December