Protecting whistleblowers is essential to combat and prevent corruption. However, whistleblowing carries extreme personal and professional risks. The assassinations of Babita Deokaran, Moses Phakoe, and more recently, the murder of Pamela Mabini illustrate this.

With regard to whistleblowers, the State Capture Commission’s recommendations included (1) improving physical protection, (2) enhancing confidentiality, (3) increasing protection from retaliation and intimidation, (4) improving protection when giving evidence, and (5) enhancing civil and criminal immunities.

Whistleblowing in the municipal context

In terms of current law, a whistleblower is entitled to protection only if they make a protected disclosure. The Protected Disclosures Act 26 of 2000 (PDA) defines this as a disclosure made against one’s employer (this includes any administrative municipal official or a councillor) regarding criminal activities, threats to occupational health and safety, miscarriages of justice, environmental harm, or unfair discrimination. The National Environmental Management Act 107 of 1998 extends protection to disclosures about environmental risks made to a relevant authority.

However, these legal provisions leave many individuals, including municipal officials, vulnerable when they report misconduct. Several laws—such as the Prevention and Combating of Corrupt Activities Act 12 of 2004, the Municipal Finance Management Act 56 of 2003, and the Municipal Systems Act 32 of 2000—impose a legal duty on municipal officials to disclose specific activities. Yet, the PDA is unclear whether any person doing so can claim protection against retaliation. Without any protection municipal officials will be reluctant fulfil these reporting obligations, and fewer and fewer qualified persons would be willing to serve as municipal officials.

Furthermore residents, consumers, activists, journalists, and other stakeholders who report misconduct in municipalities cannot claim whistleblower protection. Additionally, there are no legal provisions ensuring the safety of whistleblowers’ families, who are often targeted to intimidate the discloser into altering or withdrawing their report.

Developments

Over the past two years, two steps have taken place toward improving whistleblower protection. They are the release of the Discussion Document on Proposed Reforms for the Whistleblower Protection Regime in South Africa in 2023, and publication of the Constitution Twenty-First Amendment Bill in 2024.

Discussion document on proposed reforms for the whistleblower protection regime in South Africa

The Discussion Document on Proposed Reforms for the Whistleblower Protection Regime in South Africa proposes several important changes, starting with expanded definitions. The definition of public disclosure will be broadened to cover reports related to failures to fulfil legal obligations or the commission of disciplinary offenses. Additionally, the definition of detriment will now include discrimination, intimidation, harassment, personal harm or injury, damage to property, and any interference with business or livelihood. A prohibition is created against committing any detrimental act toward a whistleblower or any act that threatens, or has the potential to threaten, a whistleblower into changing or withholding a disclosure.

Confidentiality measures

To strengthen confidentiality, receivers must “use their best endeavours” to protect a whistleblower’s identity. Disclosures may only be shared under the following circumstances:

• When the whistleblower gives consent,
• If the report is crucial for another investigation,
• To prevent a serious threat to health and safety,
• To uphold the principles of natural justice, or
• As part of a law enforcement investigation.

If the report is shared with a third party, the whistleblower must be notified afterwards. Additionally, whistleblowers must receive feedback within three months whether their report will be investigated. Failure by a receiver to take appropriate action upon receiving a disclosure will constitute an offence.

Complaints of retaliation

The South African Human Rights Commission (SAHRC) is designated as the primary body responsible for investigating complaints of retaliation. The SAHRC must handle these cases promptly. If a case of retaliation is made, the SAHRC will refer the matter to the appropriate forum to make such a determination. A presumption is created in favour of the whistleblower, meaning any act of retaliation will be assumed to be a direct consequence of the whistleblower’s report. Those found guilty of retaliation, may be held personally liable for damages and compensation to the whistleblower.

Additional protections

The Discussion Document makes further proposals. First, agreements—such as non-disclosure agreements (NDAs), restraints of trade, or other contracts—that prevent protected disclosures will be deemed invalid. This ensures that whistleblowers cannot be legally silenced through contractual obligations. Second, whistleblowers may receive legal and physical protection. The Minister may recommend that the Legal Aid Board provide legal assistance to a whistleblower. Additionally, whistleblowers can request state protection, and the government must then provide what it considers to be adequate security. Finally, proactive measures are recommended to support whistleblowing. These include appointing a whistleblower champion, establishing internal reporting channels, developing training programs, and compiling annual reports on the effectiveness of whistleblowing mechanisms. The proposed amendments also suggest creating a dedicated fund to support whistleblowers.

Commentary

While the proposed changes are a step forward, they are not ambitious enough. The definition of a protected disclosure should be expanded to include issues such as: public health and safety, state security, public interest and risks to the continued operation of any state institution (such as municipalities).

The proposed reforms do not include a clear definition of a whistleblower. Such a definition is crucial to clarify whether an employment relationship is necessary between the discloser and the subject of the report. In the municipal context, for example, what protections apply to consumers or stakeholders reporting municipal misconduct? Similarly, are municipal officials, who have a duty to disclose information, eligible for protection if they face retaliation?

Another concern is that the reforms do not address whether the family of a whistleblower can claim compensation if the state fails to protect a whistleblower who was their breadwinner.

Confidentiality measures remain inadequate. The responsibility should rest on the receiving institution to ensure reports are securely stored and kept confidential. It is insufficient to merely require those responsible to use their “best efforts” to protect the disclosure, instead, this should be changed to “all efforts”. When reports are submitted electronically, secure systems—such as blockchain technology—should be implemented to safeguard data. Furthermore, there is no clear penalty for receivers who fail to maintain confidentiality.

The proposed reforms also state that the receiver does not need to keep the discloser’s identity confidential under certain circumstances or if the discloser consents. This should refer to informed consent instead. The reforms also fail to specify to whom the information may be released once these conditions are met. It would be advisable to limit access to both the disclosure and the discloser’s identity in all circumstances. Parliament should provide clarity on this matter.

Lastly, under the current proposal, the discloser is only informed after their information has been released. A better approach would be to notify the discloser before any such disclosure takes place.

Constitution Twenty-First Amendment Bill [GG 50528 of 19 April 2024]

The Constitution Twenty-First Amendment Bill proposes the establishment of the Anti-Corruption Commission (ACC) as a new Chapter 9 institution. The ACC will have the authority to prosecute criminal cases involving serious corruption and high-level organised crime. The Bill tasks Parliament with defining what qualifies as "serious corruption" and "high-level organised crime." In addition to prosecuting such cases, the ACC will be responsible for preventing, combating, and investigating these offenses. Any individual will be able to submit information related to corruption or organised crime to the ACC. Furthermore, all organs of state must report annually to the ACC on the measures they have taken to combat corruption and organised crime. Reports compiled by the ACC and submitted to Parliament will be made publicly available.

Commentary

The Amendment, in its current form, does not enhance whistleblower protection. Parliament should consider appointing the ACC, rather than the SAHRC, as the primary body responsible for enforcing and coordinating whistleblower protection laws in South Africa. The ACC will have broad powers to investigate and prosecute cases of retaliation, and is likely to have access to trained law enforcement and other resources needed to provide effective physical protection for whistleblowers.

Conclusion

The Discussion Document and the Amendment are a starting point to discuss the improvement of whistle blower protection. However, the two initiatives occur in separate silos. Integrating them would be beneficial, as whistleblowing and anti-corruption are closely connected.

The result of the reforms must reflect the reality of whistleblowers in South Africa. For example, nothing in the proposed reforms suggests that intelligent technologies were considered. When reports are made through electronic devices, different risks are involved as opposed to when they are made in hard copy reports. It is encouraged that government specifically reaches out to past whistleblowers and their families to contribute to the development of the legislative changes to improve whistleblower protection in South Africa.   

By  Dr Johandri Wright, Post-doctoral Research Fellow