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WHISTLE BLOWING and WHISTLE BLOWER PROTECTION in the SOUTH AFRICAN PUBLIC SECTOR by NATASJA HOLTZHAUSEN Submitted in Accordance

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WHISTLE BLOWING and WHISTLE BLOWER PROTECTION in the SOUTH AFRICAN PUBLIC SECTOR by NATASJA HOLTZHAUSEN Submitted in Accordance View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Unisa Institutional Repository WHISTLE BLOWING AND WHISTLE BLOWER PROTECTION IN THE SOUTH AFRICAN PUBLIC SECTOR by NATASJA HOLTZHAUSEN Submitted in accordance with the requirements for the degree of DOCTOR OF LITERATURE AND PHILOSOPHY in the subject PUBLIC ADMINISTRATION at the UNIVERSITY OF SOUTH AFRICA PROMOTER: PROF CJ AURIACOMBE JOINT PROMOTER: PROF EC STRÖH JUNE 2007 DECLARATION Student number: 3511-240-9 I declare that WHISTLE BLOWING AND WHISTLE BLOWER PROTECTION IN THE SOUTH AFRICAN PUBLIC SECTOR is my own work and that all the sources that I have used or quoted have been indicated and acknowledged by means of complete references. ……………………………………… ………………………….. SIGNATURE DATE MS NATASJA HOLTZHAUSEN ii ACKNOWLEDGEMENTS When one starts with this process, nothing can prepare one for the magnitude of completing a thesis. The never ending hours and sifting through countless sources and interviews are only made bearable by the knowledge that this time will come to an end. I would be ungrateful if I were not to express my appreciation to the various individuals who were part of this journey: • Professor Christelle Auriacombe for her dedication, constant support and specialist knowledge on whistle blowing and research. I could not have asked for a better promoter and mentor. • Professor Eddie Ströh for his technical excellence, kindness and patience. • Mrs H Napaai (subject librarian) for the innumerable searches and the gathering of material. • Ms Leona Labuschagne for the outstanding language editing. • The Research Committee of the Faculty of Humanities, Tshwane University of Technology for financial support. • The numerous public officials for their interest, support and advice. They all contributed in various selfless ways toward the completion of this thesis. Most of all I would like to thank them for their knowledge and for sharing their experiences, opinions and views with me. • I am indebted to all the academics and colleagues who helped me and for making suggestions. Thank you for every article, report and book that contributed to the completion of this work. • Professor Gerda van Dijk and Dr Riana Stone, friends and colleagues. Thank you for being there in the end to pull it all together. • Professor Tina Uys who graciously agreed that I could explore her research. • My friends, who enrich my life. Thank you for understanding when I acted like a recluse to complete this study. • My father, Pieter Holtzhausen, for his faith in me. iii • My sister, Tania Holtzhausen, without whom I would not have survived. Her constant love, unfailing support and motivation made the stress endurable and the long hours worthwhile. • Caela and Tao for their love and understanding. • The Lord for His love and presence and for giving me the ability to complete this study. • My mother, Marésa Holtzhausen, for always believing in me. • All the whistle blowers – may you become protected disclosurers! iv DEDICATION To my mother, Marésa Holtzhausen (1947-2005): for giving me life, love, support, courage… I miss you greatly and know you share in this. v SUMMARY The objective of this study was mainly to describe, analyse and evaluate the determinants of the phenomenon of whistle blowing that influences the protection of employees making authorised and/or unauthorised disclosures. It was also a purpose of the study to evaluate the specific role of the Protected Disclosures Act 2000 (Act 26 of 2000) (PDA) in fulfilling its mandate to protect authorised disclosures on wrongdoing in public and private sector organisations. The PDA seeks to combat crime and corruption through the disclosing of wrongdoing. The intention is to create a culture which will facilitate the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner, by providing comprehensive statutory guidelines through the PDA for the disclosure of such information, and protection against any retaliation as a result of such disclosures. An important aspect that this study dealt with was the provision, as a prerequisite to the PDA to be implemented successfully, that individual members of the private and public sectors have to act responsibly and in good faith in making disclosures in order to be protected by the PDA. In order to provide clarity on the conceptualisation of whistle blowing, the study explored the conceptual knowledge of the variables influencing the determinants of whistle blowing and the whistle blower through the application of a literature study of the concept and theories of ethics, values, morals, loyalty, trust and whistle blowing, in order to describe and analyse the variables influencing the whistle blower, the whistle blowing process, the characteristics of whistle blowers and the strategies and procedures employed to blow the whistle in an organisation. The study explored the organisational determinants influencing a whistle blower's decision to blow the whistle in the social context of an organisation in order to determine the vi influence of organisational culture and organisational trust as internal social factors that may facilitate the effective management of whistle blowing resulting in no whistle blowing taking place. The study objectives, appropriate conclusions and proposals are addressed based on the role that the PDA, the ethical determinants of the work environment, the determinants influencing the individual whistle blower and the organisational determinants influencing effective whistle blowing, can fulfil, in order to serve as a mechanism to combat corruption. KEY TERMS Authorised disclosures; Code of conduct; Corruption; Ethics; Good faith; Morality; Organisational culture; Organisational trust; Organisational wrongdoing; Trust; Unauthorised disclosures; Values; Whistle blower; Whistle blowing; Whistle blowing policy. vii WHISTLE BLOWING AND WHISTLE BLOWER PROTECTION IN THE SOUTH AFRICAN PUBLIC SECTOR TABLE OF CONTENTS CHAPTER ONE GENERAL INTRODUCTION 1.1 Introduction………………………………………………………........ 1 1.2 Background and rationale for the study………………………........ 1 1.3 Motivation for the study…..………………………………………….. 8 1.4 Significance of the study……..……………………………………… 9 1.5 Statement of the problem and research question…..…………….. 11 1.6 Research problems/questions…………………………….…..……. 13 1.7 Hypothetical points of departure………………………………..…... 14 1.8 Approach to the study………………………………………………... 15 1.9 Research objectives………………………………………….………. 19 1.10 Research method and literature information gathering…………... 20 1.10.1 Research method…………………………………………………….. 20 1.10.1.1 Gathering of information……………….…………………………….. 22 1.10.1.2 Literature study…………………………………………………..…… 23 1.10.1.3 Interviews……………………………………………………………... 23 1.11 Terminology……………………………………….………………….. 24 1.11.1 Community…………………………………………..………………... 24 1.11.2 Corruption………………………………………………….………….. 24 1.11.3 Dilemma…………………………………………………..…………... 25 1.11.4 Disclosure……………………………….…………………..………... 25 1.11.5 Ethics……………………………………….………………..………... 25 1.11.6 Governance………………………………….……………………….. 25 1.11.7 Government……………………………………….………………….. 26 1.11.8 Organisational wrongdoing………..……………….……………….. 26 1.11.9 Public Administration………………...………………….…………… 26 1.11.10 Public sector………………………………………………….……….. 26 1.11.11 Public service…………………………...………………………..…… 26 1.11.12 Values…………………………………….…………………………… 27 1.11.13 Whistle blower……………………………..…………………………. 27 viii 1.11.14 Whistle blowing…………………..…………………………………… 27 1.12 Overview of chapters……………..………………………………….. 27 CHAPTER TWO LEGISLATIVE MEASURES FOR FACILITATING PROTECTED AUTHORISED DISCLOSURES ON WRONGDOING 2.1 Introduction………………………………….………………………... 30 2.2 Background and rationale for whistle blower protection legislation……………………………………..……………………….. 32 2.2.1 Disclosure of information……………………..……………………… 33 2.2.2 Perceived organisational wrongdoing………..…………………….. 34 2.2.2.1 The disclosurer…………………………………..…………………… 34 2.2.2.2 Wrongdoing……………………………………….…………......…… 35 2.2.2.3 Peer reporting……………………………………..………………….. 36 2.2.2.4 Reporting to the proper persons…………………..………………... 36 2.2.2.5 In whose interest should the disclosure be?................................. 38 2.3 Legislative measures to combat corruption and facilitate whistle blowing -the Protected Disclosures Act 2000 (Act 26 of 2000)……………………………………………………..……............ 38 2.3.1 The purpose of the Protected Disclosures Act 2000 (Act 26 of 2000)…………………………………………………….……........ … 41 2.3.2 A theoretical scouting of the Protected Disclosures Act 2000 (Act 26 of 2000)…………………………………………..…………... 43 2.3.3 Concepts and definitions relating to the Protected Disclosures Act 2000 (Act 26 of 2000)………………………………..………….. 45 2.3.4 Objectives and application of the Protected Disclosures Act 2000 (Act 26 of 2000)……………………………………..……........ 50 2.3.5 Employee making protected disclosure not to be subjected to occupational detriment……………………………………..……..…. 51 2.3.6 Legal remedies………………………………………………....…….. 52 2.3.7 Protected disclosure to a legal adviser…………………….….…... 56 2.3.8 Protected disclosure to an employer………………………..……... 56 ix 2.3.9 Protected disclosure to a member of cabinet or executive council………….......................................………………………..... 59 2.3.10 Protected disclosure to certain persons or bodies……………...... 60 2.3.11 General protected disclosure…………………..…………………… 61 2.3.12 Regulations…………………………………………...………………. 64 2.4 Other legislative measures concerned with whistle blowing…...... 66 2.4.1
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