Public officials who disregard the law should be held accountable, says law firm Webber Wentzel employment and employee benefits practice partner Nick Robb.

He was speaking at a seminar held in Sandton on Thursday where the law firm reflected on two cases that recently made headlines in South Africa – the South African Broadcasting Corporation (SABC) censorship case and the State-owned airline South African Airways (SAA) case, which saw its treasurer Cynthia Stimpel suspended. 
  
Robb said that SABC COO Hlaudi Motsoeneng was given poor advice when he introduced the censorship regulations.

The SABC fired journalists who criticised the State broadcaster’s decision to ban the airing of footage of violent protests. The public broadcaster argued that it had taken the decision to maintain public order as the TV images could encourage others to join in violent protests.

The Independent Communications Authority of South Africa ruled that the policy was unlawful and ordered the SABC to do away with it.

Webber Wentzel senior associate in employment and employee benefits Brett Abraham highlighted whistleblowing in the workplace and gave the example of The Protected Disclosures Act 2000 and other litigations in relation to the case involving SAA and the Organisation Undoing Tax Abuse (OUTA).

In July, SAA suspended Stimpel for misconduct as "she had acted in contravention of SAA’s code of conduct". The airline denied that its decision to suspend her had to do with media reports suggesting she had allegedly objected to SAA’s decision to award a tender to “boutique” financier BnP Capital.

Stimpel’s case was taken on by Outa, under its crowd-funded whistleblower protection programme, which aims to defend whistleblowers against any victimisation tactics that may be implemented by the State and others.

“The conduct of this litigation and the factual matrix of the litigation will be used as a case study. The media attention garnered by the litigation should be seen as the catalyst for the employers to be reminded of the principles of protected disclosures, as well as the consequences that may arise when dealing with them,” stated Abraham. 

A disclosure is any good faith disclosure of information regarding any conduct of an employer made by any employee who has reason to believe that the information shows or tends to show the commission or likely commission of a criminal offence, a person’s failure or likely failure to uphold any legal obligation to which that person is subject, unfair discrimination or the endangerment of the health or safety of an individual.

He further stated that a disclosure becomes a protected disclosure when a disclosure is made to a legal adviser, an employer in accordance with any procedure prescribed, to a member of Cabinet or the executive council, the Public Protector or the Auditor General.

“A disclosure made to the South Africa Police Service, a trade union, an NGO like Outa, a news agency or a religious adviser will not be a protected disclosure unless it is made in circumstances that render it a general protected disclosure”.

Furthermore, Abraham said management’s role in dealing with protected disclosures was important.

“Organisations can ensure a healthy culture of transparency and protect whistleblowers’ careers by promptly and appropriately investigating any disclosure made by an employee to establish the veracity of such disclosure.

“It could be achieved through adoption and application of internal policies, training and awareness, and by the use of external services like ethics hotline services.”