New laws to tackle corruption and protect whistleblowers in South Africa

The Department of Justice and Correctional Services is working on new laws that will help protect whistleblowers.

The department has published a new discussion document that proposes several key reforms to South Africa’s current protections offered

Following the release of the recommendations from the Commission of Inquiry into Allegations of State Capture, Corruption, and Fraud in the Public Sector, President Cyril Ramaphosa said that whistleblowers play a key role in the battle against corruption.

“The Commission identified whistle-blowing as an essential weapon in the fight against corruption. The actions of whistleblowers have played a vital role in exposing many of the activities that were part of state capture,” the President said.

“Whistleblowers need to be encouraged to report instances of fraud and corruption and need to be protected from victimisation, prejudice, or harm.”

According to the Afrobarometer, anti-corruption measures require that whistleblowers and ordinary citizens feel safe to speak on the matter.

However, most South Africans think they cannot blow the whistle, with 72% of respondents fearing relation or other negative consequences.

A quarter of respondents said that they could report on corruption without fear, whilst 4% said that they did not know or refused to answer:

There has also been a growing call to overhaul the existing legislation that protects whistleblowers following the assassination of Tembisa Hospital whistleblower Babita Deokaran in 2021.

In response, the Department of Justice and Correctional Services has released proposed reforms to whistleblowing legislation for public comment.

Current laws

Fiona Leppen and Kerah Hamilton from Cliffe Dekker Hofmeyr said that South Africa’s current whistleblower protection, including the Protected Disclosures Act of 2000 (PDA) and the Labour Relations Act 66 of 1995 (LRA), requires consideration.

The PDA’s main role is to provide procedures for employees in the private and public sectors to disclose unlawful and irregular conduct by other employers.

The PDA gives legislative protection for employees against being subjected to “occupational detriment” due to making a protected disclosure.

A protected disclosure in terms of the PDA requires the four following elements:

1. There must be a disclosure of information.
2. It must be information regarding any conduct of an employer or an employee of the employer.
3. It must be made by an employee (or shop steward).
4. The employee must have reason to believe that the information concerned shows or tends to show one or more of the improprieties listed in the PDA.

Section 185 of the LRA states that an employee may not be unfairly dismissed or subjected to unfair labour practices, including occupational determined as per the PDA.

This, in essence, allows an employee who made a protected disclosure to approach the appropriate court if they have been fired or suffered occupational detriment due to the disclosure.

The court is then allowed to make any order that is “just and equitable in the circumstances” where an occupational detriment has occurred.

That being said, in 2021, only seven of 33 whistleblower cases brought under the PDA succeeded.

The new discussion paper acknowledges this deficiency in the current laws.

“It has been highlighted that while the PDA is well intended, it is deficient in many important respects … The PDA does not provide a clear-cut procedure for the whistleblower to follow when blowing the whistle, and it does not sufficiently guarantee that the disclosures will be protected,” the paper said.

“Furthermore, it is not proactive in providing physical protection, it offers no incentives to the whistleblower, and it does not ensure that all such information finds its way to a destination with specialised skills in receiving, investigating, and utilising such information effectively.”

New recommendations

Following a comparative analysis of whistleblower legislation in the US, Australia, Ghana and other countries, the discussion paper has proposed numerous amendments to the current whistleblower legislation.

This includes protective measures, such as state protection for whistleblowers and family members where their lives or property are endangered.

Moreover, “whistleblower” is also proposed to be included in the definition of a witness in terms of the Witness Protection Act of 1998.

The paper also proposed the introduction of funding mechanisms to cover whistleblowers’ legal fees and payment for those who were fired or faced financial detriment following their authentic disclosures.

The discussion paper also recommends the replacement of the term “occupational detriment” in the PDA with “detrimental action,” which will extend protection to those who have made a protected disclosure but are not employees. Leppen and Hamilton said that this would expand the scope to protect whistleblowers.

“A further noteworthy proposal is the addition to section 3 of the PDA, which would place a reverse onus on employers to show with satisfactory evidence that where an employee was dismissed or suffered a “detrimental action”, that this was due to another justifiable reason not related to whistleblowing,” the experts said.

Public comments for the discussion paper are due by 15 August 2023.

The document can be found below:

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