Revisiting Financial Services Sector Transparency through Whistleblowing: The Case of South Africa and Switzerland

1 See generally for a detailed analysis of the role of ineffective enforcement of financial markets regulation in the financial crisis, Majority and Minority Staff Wall Street and the Financial Crisis: Anatomy of a Financial Collapse (13 April 2011, report before the Permanent Subcommittee on Investigations of the Committee on Homeland Security and Governmental Affairs of the US Senate), available at: <http://www.gpo.gov/fdsys/pkg/CHRG-112shrg57323/html/CHRG-112shrg57323.htm> (last accessed 29 November 2016); Jackson, KT “The scandal beneath the financial crisis: Getting a view from a moral-cultural mental model” 33/2 Harvard Journal of Law & Public Policy (2010) 735 ; S Deakin “Corporate governance and financial crisis in the long run” (Centre for Business Research, University of Cambridge, working paper no 417), available at: <http://www.cbr.cam.ac.uk/fileadmin/user_upload/centre-for-business-research/downloads/working-papers/wp417.pdf> (last accessed 30 December 2016); J Winter “The financial crisis: Does good corporate governance matter and how to achieve it?” (DSF policy paper no 14, August 2011), available at: <http://www.dsf.nl/wp-content/uploads/2014/10/DSF-Policy-Paper-No-14-The-Financial-Crisis-Does-Good-Corporate-Governance-Matter-and-How-to-Achieve-it-Aug-2011.pdf> (last accessed 30 December 2016).

2 Avgouleas, E Governance of Global Financial Markets: The Law, the Economics, the Politics (2012, Cambridge University Press); Lin, TCW “The new financial industry” (2014) 65/3 Alabama Law Review 567 ; Ahdieh, RB “The visible hand: Coordination functions of the regulatory state” (2010) 95 Minnesota Law Review 578 ; Schwartz, C “G20 financial regulatory reforms and Australia” (2013) RBA Bulletin 77 ; Kawai, M and Prasad, ES Financial Market Regulation and Reforms in Emerging Markets (2011, Brookings Institution Press and Asian Development Bank Institute); Botha, E and Makina, D “Financial regulation and supervision: Theory and practice in South Africa” (2011) 10/11 International Business & Economics Research Journal 27 ; Alford, D “Supervisory colleges: The global financial crisis and improving international supervisory coordination” (2010) 24 Emory International Law Review 57 .

3 See Perks, S and Smith, EE “Employee perceptions regarding whistle blowing in the workplace: A South African perspective” (2008) 6/2 SA Journal of Human Resource Management 15 ; Rossouw, D Organization Ethics in Africa (2nd ed, 2002, Oxford University Press); AE Hofmeister “Whistleblowing: A suitable instrument to improve public corporate governance?”, available at: <http://www.sgvw.ch/wp-content/uploads/11_hofmeister.pdf> (last accessed 30 December 2016).

4 See for example M Bouvard, P Chaigneau and A de Motta “Transparency in the financial system: Rollover risk and crises” (Financial Markets Group discussion paper 700, February 2012), available at: <http://www.lse.ac.uk/fmg/workingpapers/discussionpapers/fmgdps/dp700.pdf> (last accessed 29 November 2016); Engelen, E, Ertürk, I, Froud, J, Johal, S, Leaver, A, Moran, M, Nilsson, A and Williams, K After the Great Complacence: Financial Crisis and the Politics of Reform (2011, Oxford University Press); Hudson, A The Law of Finance (1st ed, 2009, Sweet and Maxwell) at 846; S Maijoor “Market transparency: Does it prevent crisis?” (European Securities and Markets Authority FMA Supervision Conference, Vienna, 29 September 2011), available at: <https:// www.esma.europa.eu/sites/default/files/library/2015/11/2011_322.pdf> (last accessed 30 December 2016); Transparency International “The role of transparency in financial services reform” (presentation to Group of Experts on Banking Issues, Brussels, 1 June 2011), available at: <http://www.transparencyinternational.eu/wp-content/uploads/2012/08/2011-07-08-GEBI_position_paper_final_080711.pdf> (last accessed 29 November 2016).

5 Lastra, RM and Wood, G “The crisis of 2007–09: Nature, causes, and reactions” (2010) 13/3 Journal of International Economic Law 531 at 543.

6 Dworkin, TM “US whistleblowing: A decade of progress?” in Lewis, DB (ed) A Global Approach to Public Interest Disclosure: What Can we Learn from Existing Whistleblowing Legislation and Research? (2010, Edward Elgar Publishing) 36.

7 See for instance Rohde, L “Lessons from the last financial crisis and the future role of institutional investors” (2011) 1 OECD Journal: Financial Market Trends 1 ; Nazareth, AL and Tahyar, ME “Transparency and confidentiality in the post financial crisis world: Where to strike the balance?” (2011) 1 Harvard Business Law Review 146 ; AG Haldane “Rethinking the financial network” (speech at the Financial Student Association, Amsterdam, 28 April 2009), available at: <http://www.bankofengland.co.uk/archive/Documents/historicpubs/speeches/2009/speech386.pdf> (last accessed 29 November 2016); G Feuerberg “Greed, lack of transparency caused financial crisis, says Greenberger” (6 November 2012) Epoch Times; Transparency International “Greed, reckless behaviour and the financial crisis: A timeline” (18 October 2012), available at: <http://www.transparency.org/news/feature/greed_reckless_behaviour_and_the_financial_crisis_a_timeline> (last accessed 29 November 2016).

8 Brummer, C Soft Law and Global Financial System: Rule Making in the 21st Century (2012, Cambridge University Press) at 1. Also R Kuttner Financial Regulation after the Fall (Demos, The Future of Regulation Report Series, 2009), available at: <https://www.yumpu.com/en/document/view/25236323/kuttner-robert-quotfinancial-regulation-after-the-fallquot-damos> (last accessed 30 December 2016).

9 See for instance Hofmeister “Whistleblowing”, above at note 3.

10 Lin “The new financial industry”, above at note 2 at 591.

11 Before the financial crisis, reliance on risk-based regulation entailed the use of meta-regulation, where firms were given wider discretion to act according to their own interests. The rationale for this approach was an assumption that a “command and control” environment would be counterproductive, seeing as firms were better placed and able to recognize those systems and controls that were required to be put in place, established or adapted. Ultimately, this had the unintended consequence of putting regulators out of touch with financial market issues. A major criticism of involving the regulated in developing policies aimed at meeting the regulators' objectives is that it amounted to a renunciation of the regulatory agencies' enforcement duties. See for instance: Akinbami, F “Is meta-regulation all it's cracked up to be? The case of UK financial regulation” (2012) Journal of Banking Regulation 1 ; C McCarthy “Risk-based regulation: The FSA's experience” (speech delivered at ASIC Summer School, Sydney, 13 February 2006), available at: <http://www.fsa.gov.uk/library/communication/speeches/2006/0213_cm.shtml> (last accessed 29 November 2016); Avgouleas Governance, above at note 2 at xxii and following and 476; European Commission “Corporate governance in financial institutions: Lessons to be drawn from the current financial crisis, best practices” (Commission staff working document, 2 June 2010), available at: <http://ec.europa.eu/internal_market/company/docs/modern/sec2010_669_en.pdf> (last accessed 29 November 2016). See also: A Johnson “Banking & finance: Challenges of compliance in Nigeria” (August 2008), available at: <http://www.financialnigeria.com/development/developmentreport_category_item_detailp.aspx?item=254&categoryid=3> (last accessed 2 July 2014); P Tucker “Regulatory reform, stability, and central banking” (Hutchins Center on Fiscal and Monetary Policy working paper, 16 January 2014), available at: <http://www.brookings.edu/~/media/research/files/papers/2014/01/16%20regulatory%20reform%20stability%20central%20banking%20tucker/16%20regulatory%20reform%20stability%20central%20banking%20tucker.pdf> (last accessed 29 November 2016).

12 See generally Hofmeister “Whistleblowing”, above at note 3.

13 Lin “The new financial industry” above at note 2 at 591. See also: Fleischer, V “Regulatory arbitrage” (2010) 89 Texas Law Review 227 ; Greene, EF and Broomfield, EL “Promoting risk mitigation, not migration: A comparative analysis of shadow banking reforms by the FSB, USA and EU” (2013) 8/6 Capital Markets Law Journal 14 .

14 Judge Easterbrook in Wilkow v Forbes, Inc 241 F.3d 552 at 557 (7th cir 2001). See also Bakan, J The Corporation: The Pathological Pursuit of Profit and Power (2005, Free Press).

15 Jernberg, DV “Whistle-blower programmes: The counsel-assisted option” (2004) 25/148 Corporate Board 7 ; Miethe, TD Whistleblowing at Work: Tough Choices in Exposing Fraud, Waste, and Abuse on the Job (1998, Westview Press); Near, JP and Miceli, MP “Wrongdoing, whistle-blowing, and retaliation in the US government: What have researchers learned from the Merit Systems Protection Board (MSPB) survey results” (2008) 28 Review of Public Personnel Administration 263 .

16 See A Carvajal and J Elliott “The challenge of enforcement in securities markets: Mission impossible?” (International Monetary Fund working paper WP/09/168, August 2009), available at: <http://www.imf.org/external/pubs/ft/wp/2009/wp09168.pdf> (last accessed 30 November 2016); Lin “The new financial industry”, above at note 2 at 567; M Maremont and D Solomon “Behind SEC's failings: Caution, tight budget, ‘90s exuberance”, available at: <http://www.wsj.com/articles/SB107223513870781900> (last accessed 29 December 2016); D Leonard “Outmanned, outgunned, and on a roll” (23 April 2012) Business Week at 60.

17 See for instance Carr, I and Lewis, D “Combating corruption through employment law and whistleblower protection” (2010) 39/1 Industrial Law Journal 52 .

18 See generally Lambsdorff, JG The Institutional Economics of Corruption and Reform. Theory, Evidence and Policy (2007, Cambridge University Press).

19 This assertion is premised on the understanding that financial crime is often accompanied by warning signs that are known to potential whistleblowers who could alert the relevant authorities to the wrongdoing. See generally Securities Enforcement Committee “SEC adopts rules to establish whistleblower program” (25 May 2011), available at: <https:// www.sec.gov/news/press/2011/2011-116.htm> (last accessed 30 December 2016); S Lyon “Understanding the new SEC whistle blower program: Breaking down the largest whistleblowing rewards in US history” (27 September 2012), available at: <https://www.nerdwallet.com/blog/investing/understanding-sec-whistleblower-program-breaking-largest-whistleblowing-rewards-history/> (last accessed 30 December 2016).

20 Hofmeister “Whistleblowing?” above at note 3; Latimer, P “Whistleblowing in the financial services sector” (2002) 21 University of Tasmania Law Review 39 . The Organisation for Economic Co-operation and Development (OECD) defines transparency as “an environment in which the objectives of policy, its legal, institutional, and economic framework, policy decisions and their rationale, data and information related to monetary and financial policies, and the terms of agencies' accountability, are provided to the public in a comprehensible, accessible, and timely manner.” See OECD “Glossary of statistical terms”, available at: <http://stats.oecd.org/glossary/detail.asp?ID=4474> (last accessed 30 November 2016).

21 See generally Young, MA Banking Secrecy and Offshore Financial Centres: Money Laundering and Offshore Banking (2013, Routledge) at 139 ; Chong, YY Investment Risk Management (2004, John Wiley & Sons) at 54.

22 See International Organization of Securities Commissions “Objectives and principles of securities regulation”, para 4, available at: <http://www.iosco.org/library/pubdocs/pdf/IOSCOPD323.pdf> (last accessed 30 November 2016).

23 Miceli, MP, Near, JP and Dworkin, TM Whistle-blowing in Organizations (2008, Routledge), Introduction; Kaptein, M “From inaction to external whistleblowing: The influence of the ethical culture of organizations on employee responses to observed wrongdoing” (2011) 98/3 Journal of Business Ethics 513 .

24 See generally Stewart, D Organization Ethics (1996, McGraw-Hill Companies, Inc); Perks, S and Smith, EE “Employee perceptions regarding whistle-blowing in the workplace: A South African perspective” (2008) 6/2 South African Journal of Human Rights Management 15 .

25 See International Monetary Fund (IMF) “Understanding financial interconnectedness” (4 October 2010), available at: <http://www.imf.org/external/np/pp/eng/2010/100410.pdf> (last accessed 30 November 2016); DZK Árvai and İ Ötker-Robe “Financial interlinkages and financial contagion within Europe” (IMF working paper WP/09/6, 2009); J Chan-Lau, M Espinosa, K Giesecke and J Solé “Assessing the systemic implications of financial linkages” in IMF Global Financial Stability Report (April 2009). See generally Rajan, RG Fault Lines: How Hidden Fractures Still Threaten The World Economy (2010, Princeton University Press); Reinhart, CM and Rogoff, KS This Time is Different: Eight Centuries of Financial Folly (2009, Princeton University Press); Bebchuk, LA and Spamann, H “Regulating bankers' pay” (2010) 98 Georgetown Law Journal 247 .

26 Lin “The new financial industry”, above at note 2 at 606. See also Whitehead, CK “Reframing financial regulation” (2010) Boston University Law Review 1 .

27 See for instance: Beaulier, SA et al. “Knowledge, economics, and coordination: Understanding Hayek's legal theory” (2005) 1 New York University Journal of Law & Liberty 209 at 211; Freeman, J and Rossi, J “Agency coordination in shared regulatory space” (2010) 1 Harvard Law Review 1131 ; Whitehead, CK “Destructive coordination” (2011) 96 Cornell Law Review 323 .

28 C Jordan and G Majnoni “Financial regulatory harmonization and the globalization of finance” (October 2002, World Bank), available at: <http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2002/11/22/000094946_02110804063983/Rendered/PDF/multi0page.pdf> (last accessed 30 November 2016).

29 For instance, over 36.5 billion South African Rand is held in the Swiss banking system; see Swiss National Bank “Banks in Switzerland: 2013 edition”, available at: <http://www.snb.ch/en/mmr/reference/pre_20140619_2/source/pre_20140619_2.en.pdf> (last accessed 30 December 2016). Further, according to the Federal Department of Foreign Affairs, South Africa is Switzerland's most important trading partner on the African continent; see “Bilateral relations Switzerland - South Africa”, available at: <http://www.eda.admin.ch/eda/en/home/reps/afri/vzaf/bilsaf.html> (last accessed 30 November 2016). See also “Swiss investment in SA multiplies” (5 September 2013) SouthAfrica.info, available at: <http://www.southafrica.info/news/international/switzerland-050913.htm#.U6m0mLA6mUl> (last accessed 30 November 2016). See also G Kreis Switzerland and South Africa 1948–1994: Final Report of the NFP 42+ Commissioned by the Swiss Federal Council (2007, Peter Lang).

30 See for instance L Steyn “SA banks worried about costs of economic crime” (31 January 2012) Mail & Guardian; G Hosken “World fraud champs” (19 February 2014) Times Live; PricewaterhouseCoopers “Confronting the changing face of economic crime” (PwC global economic crime survey, February 2014), available at: <http://www.pwc.co.za/en_ZA/za/assets/pdf/global-economic-crime-survey-2014.pdf> (last accessed 30 November 2016); “SA companies top fraud survey” (19 February 2014) IOL, available at: <http://www.iol.co.za/business/news/sa-companies-top-fraud-survey-1.1649572#.U6cEjDeKDmI> (last accessed 30 November 2016).

31 See generally Giovanoli, M “Switzerland” in Cranston, R (ed) European Banking Law: The Banker-Customer Relationship (1993, Lloyds of London Press) 183 at 185.

32 See for example, Meier, HB, Marthinsen, JE and Gantenbein, PA Swiss Finance: Capital Markets, Banking, and the Swiss Value Chain (2012, John Wiley & Sons); Palan, R, Murphy, R and Chavagneux, C Tax Havens: How Globalization Really Works (2010, Cornell University Press); Fasnacht, D Open Innovation in the Financial Services: Growing Through Openness, Flexibility and Customer Integration (2009, Springer); Stessens, G Money Laundering: A New International Law Enforcement Model (2000, Cambridge University Press); Hanshaw, BN The World Through Our Eyes: A Collaboration of Essays by International Students (2003, iUniverse).

33 Finkelstein, KH The Tax Haven Guide Book (1996, Big Island Media Corp) at 6.

34 See Church, CH and Head, RC A Concise History of Switzerland (2013, Cambridge University Press); Collardi, BFJ Private Banking: Building a Culture of Excellence (2012, John Wiley & Sons); Barber, H Secrets of Swiss Banking: An Owners Manual to Quietly Building a Fortune (2008, John Wiley & Sons). For instance, at the G20 summit in London on 20 April 2009, countries such as the United Kingdom, France, the USA and Germany outlined their support for laws aimed at the modification of banking secrecy laws; they have since implemented structures that support whistleblowing. In this regard, see generally Rettig, CP and Keneally, K “The last, best chance to disclose foreign financial accounts and assets: The 2011 offshore voluntary disclosure program and beyond!” (2011) Journal of Tax Practice & Procedure 33 . See also Cantley, BG “The UBS case: The US attack on Swiss banking sovereignty” (2007) Brigham Young University International Law & Management Review 1 .

35 See Hofmeister “Whistleblowing”, above at note 3.

36 See generally Hanson, JA, Honohan, P and Majnoni, G Globalization and National Financial Systems (2003, World Bank Publications) at 2.

37 See for instance: Lewis, D and Uys, T “Protecting whistleblowers at work: A comparison of the impact of British and South African legislation” (2007) 49/3 Managerial Law 76 ; Kaptein, M “From inaction to external whistleblowing: The influence of the ethical culture of organizations on employee responses to observed wrongdoing” (2011) 98/3 Journal of Business Ethics 513 .

38 Near, JP and Miceli, MP “Organizational dissidence: The case of whistle-blowing” (1985) 4/1 Journal of Business Ethics 1 ; French, PA Ethics in Government (1993, Prentice Hall); Lewis and Uys, ibid; Gottschalk, P White-Collar Crime: Detection, Prevention and Strategy in Business Enterprises (2010, Universal-Publishers) at 104.

39 Dasgupta, S and Kesharwan, A “Whistleblowing: A survey of literature” (2010) 9/4 Journal of Corporate Governance 57 ; Miceli, MP, Near, JP and Dworkin, TM Whistle-Blowing in Organizations (2013, Psychology Press), chap 1; Dworkin, TM and Baucus, MS “Internal vs external whistleblowers: A comparison of whistleblowing processes” (1998) 17/12 Journal of Business Ethics 1281 .

40 Davis, M “Some paradoxes of whistleblowing” (1996) 15/1 Business and Professional Ethics Journal 3 .

41 See for instance: Gottschalk White-Collar Crime, above at note 38; Lewis and Uys “Protecting whistleblowers”, above at note 37; Bowman, JS and Menzel, DC Teaching Ethics and Values in Public Administration Programs: Innovations, Strategies, and Issues (1998, SUNY Press) 198 .

42 Bromley, DG “Linking social structure and the exit process in religious organisations: Defectors, whistle-blowers and apostates” (1998) 37/1 Journal for the Scientific Study of Religion 145 at 150. See also for instance: Lewis and Uys, ibid; Kaptein “From inaction”, above at note 37; Near and Miceli “Organizational dissidence”, above at note 38; French Ethics in Government, above at note 38; Gottschalk White-Collar Crime, id at 104; Dasgupta and Kesharwan “Whistleblowing”, above at note 39; Miceli, Near and Dworkin Whistle-Blowing in Organizations, above at note 39; Dworkin and Baucus “Internal vs external”, above at note 39; Davis, M “Some paradoxes of whistleblowing” (1996) 15/1 Business and Professional Ethics Journal 3 .

43 Near, JP and Miceli, MP “Whistle-blowing: Myth and reality” (1996) 22/3 Journal of Management 507 .

44 National Whistleblower Center “Whistleblowers still the best at detecting fraud”, available at: <http://www.whistleblowers.org/index.php?option=com_content&task=view&id=102> (last accessed 30 November 2016). See also PwC “Confronting the changing face”, above at note 30.

45 Zhuang, J, Thomas, S and Miller, DL “Examining culture's effect on whistle-blowing and peer reporting” (2005) 44/4 Business & Society 462 .

46 C Shaw “Fighting fraud: A new European study suggests fraud is wide-spread” (June 2002) CMA Magazine 53.

47 See generally Rapp, GC “Beyond protection: Invigorating incentives for Sarbanes-Oxley corporate and securities fraud whistleblowers” (2007) 87 Boston University Law Review 91 .

48 Reed, Q and Fontana, A “Corruption and illicit financial flows: The limits and possibilities of current approaches” (2011) U4 Brief 1 .

49 Rachagan, S and Kuppusamy, K “Encouraging whistle blowing to improve corporate governance? A Malaysian initiative” (2013) 115/2 Journal of Business Ethics 367 .

50 Brown, AJ (ed) Whistleblowing in the Australian Public Sector: Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations (2008, ANU E Press).

51 It should be noted that this article is confined to the regulation of whistleblowing in the private sector; as such it does not consider other conventions and acts that regulate whistleblowing in the public sector, such as sec 159 of the Companies Act 2008, the Reporting of Public Entities Act 93 of 1992, the Corruption Act 94 of 1992, the Public Services Act 103 of 1994 and the Audit Act 122 of 1992. In addition, South Africa is a signatory to and has ratified a number of international agreements in which it has agreed to adopt whistleblowing in a bid to fight corruption and foster accountability and transparency in the management of public affairs and socio-economic development on the continent. These include the African Union Convention on Preventing and Combating Corruption, 2003, the OECD Convention on combating Bribery of Foreign Public Officials in International Business Transactions, as well as the Southern African Development Community Protocol against Corruption.

52 Sec 4(1) provides: “Any employee who has been subjected, is subject or may be subjected, to an occupational detriment in breach of section 3, may - (a) approach any court having jurisdiction, including the Labour Court … for appropriate relief; or (b) pursue any other process allowed or prescribed by any law.” Further, sec 4(2) provides: “For the purposes of the Labour Relations Act, 1995, including the consideration of any matter emanating from this Act by the Labour Court - (a) any dismissal in breach of section 3 is deemed to be an automatically unfair dismissal as contemplated in section 187 of that Act … (b) any other occupational detriment in breach of section 3 is deemed to be an unfair labour practice.” Sec 4(3) further states: “Any employee who has made a protected disclosure and who reasonably believes that he or she may be adversely affected on account of having made that disclosure, must, at his or her request and if reasonably possible or practicable, be transferred from the post or position occupied by him or her at the time of the disclosure to another post or position in the same division or another division of his or her employer or, where the person making the disclosure is employed by an organ of state, to another organ of state.” And, according to sec 4(4): “The terms and conditions of employment of a person transferred in terms of subsection (2) may not, without his or her written consent, be less favourable than the terms and conditions applicable to him or her immediately before his or her transfer.”

53 See generally P Martin “The status of whistleblowing in South Africa: Taking stock” (June 2010), available at: <http://www.advocacyaid.com/images/stories/rrdownloads/ODAC_Whistleblowing_Report.pdf> (last accessed 30 November 2016); Dehn, G and Calland, R Whistleblowing Around the World: Law, Culture & Practice (2004, Public Concern at Work).

54 For more information, visit Whistle Blowers at: <http://www.whistleblowing.co.za/> (last accessed 30 November 2016).

55 See for instance the Swiss Code of Obligations, arts 716(2) and 717(1). For a discussion of duties see: Campbell, D and Campbell, C International Liability of Corporate Directors (2nd ed, 2013, Juris Publications); Garbarski, AM La Responsabilité Civile et Pénale des Organes Dirigeants de Sociétés Anonymes [Civil and criminal liability of the governing bodies of public limited companies] (2006, Schulthess Juristische Media Juridiques SA) 135 .

56 See generally Homburger “Whistleblowing systems under data protection law” (9 January 2008), available at: <http://www.homburger.ch/fileadmin/publications/WSDAPROL_01.pdf> (last accessed 30 November 2016).

57 See Keller, WL and Darby, TJ International Labor and Employment Laws, vol IIA J (3rd ed, 2008, Darby).

58 Ueli Sommer, Walder Wyss & Partners Ltd “Switzerland” at 42–48, available at: <http://www.walderwyss.com/publications/973.pdf> (last accessed 30 November 2016).

59 Honegger, PC “Swiss banking secrecy” (1990) Butterworths Journal of International Banking and Financial Law 334 ; Bauen, M and Rouilller, N Swiss Banking: An Introduction for Bank Customers and their Advisors (2013, Schulthess Juristische Medien AG); Guldimann, B Inside Swiss Banking (2010, Beat Guldimann).

60 See Moser, M “Switzerland: New exceptions to bank secrecy laws aimed at money laundering and organized crime” (1995) 27 Case Western Reserve Journal of International Law 324 .

61 An apt illustration of the ambit of art 47 is made by the conviction of Rudolf Elmer, a Swiss ex-banker, for giving data to WikiLeaks. See “Convicted whistleblower banker arrested on new charges” (20 January 2011) France 24, available at: <http://www.france24.com/en/20110119-whistleblower-swiss-banker-arrested-new-charges-after-sentencing-elmer-wikileaks/#./?&_suid=140775600394401884355464697095> (last accessed 30 November 2016). Further, see “Swiss bank secrecy: A whistleblower's woes” (19 July 2014) The Economist, available at: <http://www.economist.com/blogs/schumpeter/2014/07/swiss-bank-secrecy> (last accessed 30 December 2016). See also V Oberti and K Laske “A major scandal brews after Spain arrests HSBC whistleblower Falciani” (24 July 2012) Mediapart, available at: <http://www.mediapart.fr/journal/international/240712/major-scandal-brews-after-spain-arrests-hsbc-whistleblower-falciani> (last accessed 30 November 2016).

62 Loi sur les Banques [Banking Act] 8 November 1934, RS 952.0, art 47; Nobel, P Swiss Financial Law in the International Context (2002, Stämpfli); Nobel, P Swiss Financial Law and International Standards (2002, Kluwer Law International).

63 See Krauskopf, L “Comments on Switzerland's insider trading, money laundering, and banking secrecy laws” (1991) 9 International Tax & Business Law 277 .

64 Grassi, PS and Calvarese, D “The duty of confidentiality of banks in Switzerland: Where it stands and where it goes. Recent developments and experience the Swiss assistance to, and cooperation with the Italian authorities in the investigation of corruption among civil servants in Italy (the ‘clean hands' investigation): How much is too much?” (1995) 7 Pace International Law Review 329 at 340.

65 Krauskopf “Comments on Switzerland's insider trading”, above at note 63.

66 The Swiss Federal Supreme Court has interpreted business secrets as encompassing “any data of economic life, provided there is a legitimate interest in keeping the secret … [and] the term may also include relations and transactions of private economy concerning property and income”: id at 293.

67 Swiss Criminal Code, 21 December 1937, RS 311.0, art 273.

68 Lauchli, UM “Swiss bank secrecy with comparative aspects to the American approach” (1998) 42 St Louis University Law Journal 865 .

69 See for instance Alfadda v Fenn 149 FRD 28 at 32 (SDNY 1993). It should be noted that the party who owns information in the bank's custody has the right to waive their right to privacy and allow disclosure. It is not the financial institution but the customer who owns the secret, so only the injured party can bring an action for the violation of art 162. See generally Krauskopf “Comments on Switzerland's insider trading”, above at note 63; Frei, L “Swiss secrecy laws and obtaining evidence from Switzerland” (1984) 18/4 The International Lawyer 789 .

70 This implied duty of the banker-customer contract is also protected under certain statutes within South Africa's financial sector. See for instance, sec 33(1)(a) of the South African Reserve Bank Act No 90 of 1989, which, inter alia, prohibits disclosure of information regarding the affairs of the bank, shareholders or customers unless compelled by law. Further, sec 14 of the Constitution of the Republic of South Africa provides for the right to personal privacy. Likewise, the Protection of Personal Information Act no 4 of 2013 promotes the protection of personal information being processed by public and private institutions, such as banks, by imposing a number of restrictions, conditions and safeguards relating to the use of such information. Under sec 8 of the Inspection of Financial Institutions Act, an inspector carrying out an inspection of a bank is obliged to preserve confidentiality unless the court, the law or the nature of an inspection compels disclosure. Banker-customer liability will be based on breach of contract; see for instance: Legogote Development Co (Pty) v Delta Trust and Finance Co (1970) 1 SA 584; Firstrand Bank Ltd v Chaucer Publications (Pty) Ltd 2008 (2) SA 592 (C); Cambanis Buildings (Pty) Ltd v Gal 1983 (2) SA 128 (N) 137 F; Kearney NO v Standard Bank of South Africa Ltd 1961 (2) SA 647 (T) 650.

71 This was reiterated in Abrahams v Burns 1914 CPD 452; GS George Consultants & Investments (Pty) Ltd and Others v Datasys (Pty) Ltd 1988 (3) SA 726 (W); Firstrand Bank, ibid. See also Stevens and Others v Investec Bank Ltd and Others (2012 / 32900) [2012] ZAGPJHC 226 (25 October 2012); Tournier v National Provincial & Union Bank of England [1924] 1 KB 461. See AB Fourie The Banker and the Law (1993, Institute of Bankers in South Africa); Hudson, A The Law of Finance (1st ed, 2009, Sweet and Maxwell); Neethling, J Neethling's Law of Personality (2nd ed, 2005, Butterworths); Ellinger, EP, Lomnicka, E and Hooley, RJA Ellinger's Modern Banking Law (5th ed, 2011, Oxford University Press); Masete, NT “The challenges in safeguarding financial privacy in South Africa” (2012) 7/3 Journal of International Commercial Law and Technology 248 ; Cranston, R Principles of Banking Law (2nd ed, 2003, Oxford University Press); Schooner, HM and Taylor, M Global Bank Regulation: Principles and Policies (2010, Academic Press).

72 See Firstrand Bank, above at note 70.

73 Ibid.

74 Hofmeister “Whistleblowing”, above at note 3 at 118.

75 See generally Diamond, WH Switzerland: Tax Exemptions and Reductions in Tax Havens of the World (2010, Matthew Bender Books); Bar, HJ The Banking System of Switzerland (5th ed, 1975, Schulthess Polygraphischer Verlag).

76 See Krauskopf “Comments on Switzerland's insider trading”, above at note 63; Victorson, EM “ United States v UBS AG: Has the United States successfully cracked the vault to Swiss Banking Secrecy?” (2011) 19 Cardozo Journal of International & Comparative Law 815 .

77 Nobel Swiss Financial Law in the International Context, above at note 62; Krauskopf, ibid. Note however that, in case of a suit between the bank and customer, the bank would be absolved from such a requirement for secrecy; see for instance Nobel Swiss Financial Law and International Standards, above at note 62 at 891.

78 Grassi and Calvarese “The duty of confidentiality”, above at note 64 at 331.

79 Bar, HJ The Banking System of Switzerland (5th ed, 1975, Schulthess Polygraphischer Verlag); Sage, TA “Between a rock and a hard place: The legal and moral juxtaposition of Switzerland's bank secrecy laws as illustrated by the revelation of Nazi-Era accounts” (1997) 21/1 Houston Journal of International Law 117 ; the Swiss Criminal Code, art 321 (violation of professional secrecy) states: “Clergymen, lawyers, defence counsels, notaries, auditors bound to professional secrecy by the [Swiss] Code of Obligations, physicians, dentists, pharmacists, midwives, and their auxiliaries who divulge a secret entrusted to them or of which they have become aware during the exercise of their profession, shall upon petition, be punished by imprisonment or by a fine …”

80 It should also be noted that the operation of these stringent banking and stock market secrecy laws is overridden by the obligation to testify and make disclosure in terms of cantonal or federal laws. See SESTA, arts 47(4) and 43(3) for instance. See also: Nobel Swiss Financial Law and International Standards, above at note 62; Krauskopf “Comments on Switzerland's insider trading”, above at note 63.

81 See for instance M Crutsinger “US, Switzerland agree to crack down on tax evaders” (20 June 2009) USA Today, available at: < http://abcnews.go.com/Business/story?id=7884864> (last accessed 29 December 2016). Furthermore, after decades of repelling international pressure, Switzerland has been forced to soften its banking secrecy laws significantly. Bilateral concessions arose mainly from collective pressure exerted by fellow OECD members (risk of blacklisting), as well as in response to US threats to indict UBS, Switzerland's biggest bank. They mainly concerned tax-related issues, but these concessions nonetheless point to the development of a new global standard built around transparency. See generally Grinberg, I “The battle over taxing offshore accounts” (2012) 304 UCLA Law Review 305 .

82 See US v UBS AG no 09-20423-CIV-GOLD/MCALILEY (SD Fla, 9 July 2009); Crutsinger, ibid. See also Stark, SA Hidden Treuhand: How Corporations and Individuals Hide Assets and Money (2009, Universal-Publishers).

83 See Cantley, BG “The UBS case: The US attack on Swiss banking sovereignty” (2011) 7 International Law & Management Review 1 ; “Brief for government of Switzerland as amici curiae supporting respondents” at 1, United States v UBS AG, no 109CV20423, 2009 WL 1612394 (SD Fla, 30 April 2009).

84 See J Manley “Swiss minister to meet Clinton ahead of UBS deadline” (20 July 2009) Reuters, available at: <http://blogs.reuters.com/financial-regulatory-forum/2009/07/20/swiss-minister-to-meet-clinton-ahead-of-ubs-deadline/> (last accessed 30 November 2016); K McCoy “US, UBS say they have a deal in tax-evasion dispute” (31 July 2009) USA Today, available at: < http://abcnews.go.com/Business/story?id=8311349> (last accessed 30 December 2016).

85 See generally Aubert, M “The limits of Swiss banking secrecy under domestic and international law” (1984) 2 International Tax & Business Law 273 .

86 Transparency International “South Africa: A mandate to tackle corruption” (6 May 2014), available at: <http://www.transparency.org/news/feature/south_africa_a_mandate_to_tackle_corruption> (last accessed 30 November 2016).

87 Steyn “SA banks worried”, above at note 30; Hosken “World fraud champs”, above at note 30; PwC “Confronting the changing face”, above at note 30; “SA companies top fraud survey”, above at note 30.

88 Martin “The status of whistleblowing”, above at note 53.

89 Id at 19. See also Dehn, G and Calland, R Whistleblowing Around the World: Law, Culture & Practice (2004, Public Concern at Work).

90 See for example: Vandekerckhove, W Whistleblowing and Organizational Social Responsibility: A Global Assessment (2012, Gower Publishing, Ltd); Arszulowicz, M and Gasparski, WW Whistleblowing: In Defense of Proper Action (2011, Transaction Publishers); Parliamentary Monitoring Group “National anti-corruption summit, and public service restructuring: Briefings” (25 May 2005), available at: <http://www.pmg.org.za/minutes/20050524-national-anti-corruption-summit-and-public-service-restructuring-briefings> (last accessed 30 November 2016).

91 Martin “The status of whistleblowing”, above at note 53.

92 See generally: Vega, MA “Beyond incentives: Making corporate whistleblowing moral in the new era of Dodd-Frank Act ‘Bounty hunting’” (2012) 45/2 Connecticut Law Review 481 ; Baer, MH “Governing corporate compliance” (2009) 50 Boston College Law Review 949 ; Arnold, TM “It's déjà vu all over again: Using bounty hunters to leverage gatekeeper duties” (2010) 45 Tulsa Law Review 419 ; Bucy, PH “‘Carrots and sticks': Post-Enron regulatory initiatives” (2004) 8 Buffalo Criminal Law Review 277 ; Cunningham, LA “Beyond liability: Rewarding effective gatekeepers” (2007) 92 Minnesota Law Review 323 .

93 Rapp, GC “Beyond protection: Invigorating incentives for Sarbanes-Oxley corporate and securities fraud whistleblowers” (2007) 87 Boston University Law Review 91 .

94 See Lewis and Uys “Protecting whistleblowers at work”, above at note 37; Culp, D “Whistleblowers: Corporate anarchists or heroes? Towards a judicial perspective” (1995) 13 Hofstra Labour & Employment Law Journal 109 .

95 Note however that, at the time of writing this article, there are growing calls for the review of these parameters, in particular the exclusion of contract and agency employees, as well as extending to whistleblowers protection against civil suits. Additional amendments being proposed include stiffer penalties, ranging from a fine to imprisonment for a period not exceeding two years, or both a fine and imprisonment for the malicious disclosure of false information. See Protected Disclosures Amendment Bill, sec 9B, available at: <http://www.justice.gov.za/legislation/bills/2015-PDAAmmBill-b40-2015.pdf> (last accessed 30 December 2016). See also Public Protector South Africa “Public Protector welcomes whistle blower protection law amendments” (1 April 2014), available at: <http://www.pprotect.org/media_gallery/2014/01042014.asp> (last accessed 30 November 2016).

96 See for instance Second National Anti-Corruption Summit “Roundtable discussion: The Protected Disclosures Act, 2000 (Act 26 of 2000)”, available at: <http://www.nacf.org.za/anti-corruption-summits/second_summit/Section6_PSC_report_Summit2_2005.pdf> (last accessed 30 December 2016).

97 For a more comprehensive discussion of the weaknesses associated with the PDA, see stakeholder comments made by the Second National Anti-Corruption Summit “Roundtable discussion”, ibid.

98 There has been a comparatively large corpus of decided cases on whistleblowing. See for instance Ngobeni v Minister of Communications and Another J08/14 [2014] ZALCJHB 96; Communication Workers Union v Mobile Telephone Networks (Pty) Ltd (2003) 24 ILJ 1670 (LC); Tshishonga v Minister of Justice and Constitutional Development and Another (JS898/04) [2006] ZALC 104 (26 December 2006); Young v Coega Development Corporation (Pty) Ltd [2009] 6 BLLR 597 (ECP) High Court; City of Tshwane Metropolitan Municipality v Engineering Council of South Africa and Another (532/08) [2009] ZASCA 151 (27 November 2009). See also CJ Auriacombe “Whistle blowing and the law in South Africa” (2005) 24/2 Politeia 197.

99 Hofmeister “Whistleblowing”, above at note 3 at 117.

100 Vandekerckhove, W “European whistleblower protection: Tiers or tears?” in Lewis, D (ed) A Global Approach to Public Interest Disclosure (2010, Edward Elgar) 15 at 20.