Whistleblowing in South Africa Explained

Whistleblowing is the act of reporting misconduct or illegal activities by an organization or individual. In South Africa, whistleblowing is an important tool for combating corruption and promoting transparency and accountability. However, whistleblowers may face retaliation or other negative consequences for speaking out. In this article, we will provide a comprehensive guide to whistleblowing in South Africa, including what it is, the legal protections available to whistleblowers and how to blow the whistle safely and effectively.

What is a Whistleblower?

A whistleblower is a person (who is also usually an employee) who exposes an activity and/or information within a private, public or government organization that is deemed illegal, immoral, illicit, unsafe, fraud and/or an abuse of taxpayer funds.

In South Africa, whistleblowers are afforded protection in terms of the Constitution, the Protection Disclosures Act (“PDA”), combined with s159 of the Companies Act, the Labour Relations Act and the Protection Against Harassment Act.

Whistleblowing Legal Framework

The Constitution is the supreme law of South Africa and as such, contains the overarching protections for whistle blowers. In addition to the Constitution, whistleblowers are afforded protection in terms of the Protected Disclosures Act (“PDA”); the Labour Relations Act (“LRA”); the Companies Act; and the Protection Against Harassment Act.

Protected Disclosures Act (“PDA”)

The PDA’s main purpose is to protect whistleblowers who make a ‘protected disclosure’ from being subjected to ‘occupational detriment’ in their work environment.

Notably, not all disclosures are covered by the PDA. For a disclosure to fall within the ambit of the PDA, the disclosure must: (1) be made in good faith; (2) contain information about an "impropriety" (e.g. criminal offence, fail to comply with a legal obligation, unfair discrimination is taking place, etc.); and (3) be made to the right person as set out in the PDA. It is important to note that a disclosure made in terms of the PDA need not be factually accurate, but must be made in good faith and the person making such disclosure must reasonably believe that the information disclosed is substantially true and not make the disclosure for the purposes of personal gain.

If a protected disclosure is made and the person is subject to ‘occupation detriment’, then the PDA affords such a person certain relief in the circumstances.

The concept of ‘occupational detriment’ includes, inter alia, conduct like any disciplinary action (e.g. demotion, suspension or dismissal), harassment, intimidation, being transferred against one’s will, being refused a transfer or promotion, being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security of a whilstleblower.

Notably, the PDA places an obligation on employers to ensure that PDA policies are put in place at the workplace. Many employers are unaware of the provisions of the PDA and their obligations to comply with same.

The Labour Relations Act (“LRA”)

The LRA also offers some protection to whistleblowers e.g. unfair labour practice and unfair dismissal and which empowers an employee to refer a dispute concerning an unfair labour practice, if the employee has suffered occupational detriment by an employer who has breached the PDA.

The Companies Act

Section 159 of the Companies Act extends whistleblowing protection to the likes of directors, prescribed officers, company secretaries, auditors, boards or committees of the company concerned and protects them as whistleblowers in this context against any civil, criminal or administrative liability for a disclosure made in terms of the Companies Act.

Notably, Section 159 of the Companies Act requires public companies and state-owned companies to establish and maintain a system to receive disclosures (contemplated in that section) confidentially and to routinely publicise the availability of that system to persons who are entitled to make disclosures in terms thereof.

The Protection Against Harassment Act

The Protection Against Harassment Act applies when whistleblowers get harassed as a result of whistleblowing and enables such persons to get protection orders against a person harassing them. Harassment in the context is defined as "directly or indirectly engaging in conduct that the harasser knows or ought to know causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person".

Employer’s Whistleblowing Obligations

It is critical for employers to engage with and understand the PDA and to ensure statutory compliance therewith. Employer’s are obligated to take all necessary steps to ensure that employees who make disclosures are protected from any reprisals as a result of such disclosure/s and imposing a duty to inform the employee or worker etc. pursuant to a disclosure/s being made. There are also certain prescribed time periods that have to be complied with when am employee makes a protected disclosure.

Blowing the Whistle Safely and Effectively

Whistleblowing can be risky and it is important to take steps to protect yourself if you choose to blow the whistle. Some tips for blowing the whistle safely and effectively include the following:

1. Gather evidence: Before blowing the whistle, gather as much evidence as possible to support your claims. This evidence can include emails, documents and witness statements.

2. Report internally first: In many cases, it is advisable to report the misconduct internally first, before reporting it externally. This gives the organization an opportunity to address the issue before it becomes public.

3. Report to the right person: When reporting the misconduct, report it to the right person or authority, such as a supervisor or government agency.

4. Protect your identity: If you are concerned about retaliation, consider reporting the misconduct anonymously or using a whistleblower hotline.

Conclusion

Whistleblowing is an important tool for combating corruption and promoting transparency and accountability in South Africa. By understanding what whistleblowing is, the legal protections available to whistleblowers, and how to blow the whistle safely and effectively, you can help to expose wrongdoing and make a positive difference in your organization and society as a whole. If you would like to find out more, please contact our offices as our attorneys have extensive experience in this regard.

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