The legislation applicable to whistleblower protection in South Africa, including inter alia the Protected Disclosures Act 26 of 2000 (PDA) and the Labour Relations Act 66 of 1995 (LRA), requires consideration. The main function of the PDA is to provide procedures for employees, both in the private and public sectors, to adopt when someone makes a disclosure regarding unlawful or irregular conduct by employers.

The decision whether to blow the whistle is significantly influenced by the legal protection afforded to a person in the aftermath. Whistleblowers face the risk of reputational and financial ruin, as well as damage to future employment prospects. Accordingly, the PDA and the LRA, as the primary pieces of legislation in the context of whistleblowing, operate in tandem, with the PDA providing legislative protection for employees against them being subjected to an “occupational detriment” as a consequence of making a protected disclosure.

Protected disclosure

To be classified as a protected disclosure in terms of the PDA, the disclosure must contain all four of the 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 provides that employees have the right not to be unfairly dismissed or to be subjected to unfair labour practices, which includes an occupational detriment as envisioned by the PDA. Effectively, this allows an employee who has made a protected disclosure to approach a court of competent jurisdiction if they have been dismissed or subjected to an occupational detriment as a result of this disclosure. The courts are then empowered to make any order which is “just and equitable in the circumstances” where an occupational detriment has occurred. However, in a 2021 case study it was shown that out of the 33 whistleblower cases brought under the PDA, only seven were successful, and the remaining 25 applicants failed.

While there are clear attempts by existing legislation to protect whistleblowers, the discussion paper acknowledges that each piece of legislation provides varying degrees of protection, and thus reform is necessary. In fact, the deficiency in legislative protection against whistleblowers was highlighted during the Zondo Commission, where it was found that the PDA does not provide a sufficient guarantee of protection, nor is it proactive in providing physical protection to whistleblowers.

This is evident in the case of the late Babita Deokaran who was murdered in 2021 after reporting corruption in the Gauteng Department of Health.

Proposed reforms

In this regard, and on the back of a comparative analysis with whistleblower legislation in the US, Australia and Ghana, among other countries, the discussion paper has proposed a number of amendments to the PDA and related legislation, with protective measures including state protection to whistleblowers and family members where their lives or property are endangered and the inclusion of “whistleblower” in the definition of a witness in terms of the Witness Protection Act 112 of 1998. The paper has further proposed the establishment of funding mechanisms to cover whistleblowers’ legal costs, as well as compensation for whistleblowers who have been dismissed or face financial detriment as a result of their bone fide disclosures.

In the context of employment law specifically, the discussion paper recommends the replacement of “occupational detriment” in the definitions under the PDA with “detrimental action” to extend protection to persons who are not employees, but who have nevertheless made a protected disclosure in terms of the PDA. This would have the effect of extending the scope of the PDA to protect whistleblowers who do not fall within an employer and employee relationship.

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.

These proposed amendments serve as added protection to whistleblowers who suffer harm as a result of disclosures. However, if they are given effect to, employers would be prudent to revise existing policies and disciplinary procedures to ensure compliance with the amended provisions of the PDA in due course.

The paper is open for public comment until Tuesday 15 August 2023.