Civil society welcomes draft whistleblower Bill, but warns that serious risks remain

South Africa has failed to protect its whistleblowers. For decades, whistleblowers have been left jobless, isolated and ostracised, facing the full fury of the powerful interests they seek to denounce.

This is precisely what former Chief Justice Raymond Zondo sought to correct in his recommendations following the 2018 State Capture Commission. Zondo found South Africa’s primary legislation protecting whistleblowers, the Protected Disclosures Act (PDA), wholly insufficient in practice. This sentiment was not new and has been echoed by whistleblowers, civil society, and academia ever since.

Heeding Zondo’s call, in April the Department of Justice and Constitutional Development (DOJ) released the new Protected Disclosures Bill, open for public comment until 14 May. However, we cannot afford to mistake ambition for arrival — not when whistleblowing in South Africa continues to mean putting your life at risk.

As such, the Legal Resources Centre, the Platform to Protect Whistleblowers in Africa and Open Secrets have developed a collective position paper endorsed by the Civil Society Working Group on State Capture (CSWG). The paper provides critical insight into reforms needed to strengthen whistleblower protection in South Africa that go beyond the current proposals in the new Bill, ensuring stronger protection, better support mechanisms, and incentives to encourage reporting.

Whistleblowers must, foremost, be granted clear and explicitly stated legal rights as per the rights enshrined in the South African Constitution, including access to secure reporting channels, confidentiality, protection from retaliation, and the timely investigation of disclosures. While the new Bill addresses each of these aspects, it does so with varying degrees of success.

The proposed Bill fails to effectively widen the scope of protection outside of the workplace and continues to define disclosures as a reporting of improper conduct by an employee or employer, while also offering the Labour Court as the primary source of recourse for victimisation, thus leaving whistleblowers who are not in a contractual relationship effectively unprotected from victimisation.

‘Detrimental action’

The Bill also introduces the concept of “detrimental action”, which broadly includes unfair discrimination, threats to or violations of a whistleblower’s legal rights, harassment, personal harm, injury, or loss of damage to property or livelihood. It does not define retaliation or criminalise specific actions as retaliative. We commend this approach for its responsiveness to the many forms retaliation may take. However, best practice requires that detrimental action be interpreted to cover any act or omission, materialised or at risk of materialising, to the detriment of the reporting person’s human rights and personal, professional, labour, psychosocial, family or patrimonial interests.

The Bill shifts the evidentiary burden so that once a whistleblower shows they made a protected disclosure and suffered a detriment linked to it, the onus lies on the accused to demonstrate that their actions were unrelated to the whistleblowing. However, the whistleblower must first show that they made a protected disclosure and that they suffered a detriment linked to it, thus negating the shift. In essence, the onus still lies on them.

Similarly, requiring whistleblowers to act in “good faith” limits protection for whistleblowers while undermining the purpose of protecting disclosures in the first place. If a disclosure is truthful and ultimately exposes wrongdoing, it makes little sense to strip protection based on the subjective intention of its source. Good faith requirements for protection ought to be removed altogether, replaced with a standard based on reasonable belief in the truth of the disclosure.

The Bill expands reporting channels to include persons outside of the employer or government, potentially including civil society organisations, the media, and other trusted institutions. However, thresholds to approach these persons are unnecessarily high, making the process difficult for citizen whistleblowers and should be removed.

Culture of accountability

A welcome addition is the requirement that private companies establish internal whistleblowing systems, train staff to handle disclosures responsibly, and conduct investigations into the alleged improper conduct. This is a meaningful step toward embedding a culture of accountability in the private sector.

The Bill offers clear timeframes to report back to whistleblowers on investigations into their disclosures and introduces a central database to monitor both disclosures and investigations. However, the practical implementation of such a database presents significant challenges.

The director-general and persons designated by them are responsible for its management, yet disclosures can be made to a myriad of people, including those outside of the Department of Justice’s (DoJ’s) remit, such as legal advisers, Cabinet members, and Chapter 9 institutions such as the Public Protector and South African Human Rights Commission. It is therefore questionable whether the DoJ is best placed to manage a database with such far-reaching scope while ensuring whistleblowers’ confidentiality — particularly for those exposing public sector wrongdoing.

While we applaud the ambitious timeframes proposed for handling disclosures — such as five days from the receipt of disclosure to conduct a preliminary investigation — the persons and entities carrying out investigations must be subject to rigorous oversight. Importantly, however, the Bill does not provide timeframes for when an investigation must be concluded — in sensitive cases, delays cost lives.

An independent body, like a whistleblowing regulatory authority, is therefore the only credible answer for both the management of the database and oversight of the investigative entities. Such a body should be overseen by a retired judge as per the recommendations of the National Anti-Corruption Advisory Council and the Zondo Commission. This body would provide advice, monitor investigations and offer legal, financial and psychosocial support. It would safeguard whistleblowers’ identities, coordinate protection measures, and conduct public awareness campaigns. Critically, it must be independent, properly resourced, and accountable to Parliament to ensure effective oversight.

Legal support

The Bill also seeks to provide legal support via Legal Aid South Africa, but this raises questions around the capacity of Legal Aid SA, which is notoriously under-resourced and faces serious budgetary and capacity issues. Additionally, the means test for assistance from Legal Aid would further jeopardise whistleblowers, as most whistleblowers fall outside the parameters of access for the Legal Aid system.

Effective whistleblower protection requires practical support, like physical protection, relocation assistance, financial support and compensation for legal and related costs. While the Bill does provide for reparations and for awards where disclosures lead to recovery of funds, public sector whistleblowers are excluded from accessing rewards, which presents a significant oversight given South Africa’s history of State Capture. And reparations are only accessible through the Labour Court, leaving whistleblowers who fall outside the traditional labour relationship out to dry.

Critically, the Bill proposes that protection may be revoked for several reasons, which is not standard in international best practices and may deter potential whistleblowers. At the core of this lies the position that a whistleblower’s rights are given to them. We believe that whistleblower rights come into effect as soon as a disclosure is made. If the opposite were true, it would create confusion as to when the conditions have been met for a disclosure to be considered protected. As such, this section should be removed in its entirety.

The Protected Disclosures Bill is not an abstraction for lawyers; it is inherently personal and affects all South Africans. Most whistleblowers do not set out to become whistleblowers. They are procurement officers who notice the numbers do not add up, nurses who see essential supplies disappear, or accountants who stumble on payments that should not exist. They are ordinary people who find themselves in an extraordinary position.

We urge you to participate in the consultation process to help shape stronger whistleblower protections, to strengthen democracy, and to promote a culture of accountability and transparency. Because the next person to see something and say something may be you, and if that happens, you will want to know that the law is ready to protect you. DM

Claire Rankin is an attorney at the LRC. She heads up their State Capture and Beyond Team, and also works across their Education, Land and GBV focus areas. Luthando Vilakazi is a lawyer in the Open Secrets legal team. Roshnee Narrandes is the regional director of PPLAAF-SA, an organisation that provides support to whistleblowers in SADC.

The Position Paper is available on all three organisations’ websites.