The parlous state of whistleblower protection in SA

Almost every day in South Africa there’s a new media report about corruption or maladministration in government departments or private companies. Most of these cases are brought to light by whistleblowers who help prevent illegal activity, but they literally risk their lives when they expose the hidden truths.

The South African legal framework for whistleblower protection is centered on the Protected Disclosures Act, 26 of 2000 (PDA) and the 2017 Amendment Act, but Ntokozo Ndlovu, a candidate legal practitioner at Rupert Candy Attorneys Inc., says the Act is flawed because of limitations it includes. Section 2(1)(a) of the amended Act states: “The objects of this Act are to protect an employee or worker, whether in the private or the public sector, from being subjected to an occupational detriment on account of having made a protected disclosure.”

“The Act provides protection for those that fall within a workplace relationship, and this is the first limitation. Preventing corruption is in everyone’s best interest, but this mindset prevents anyone from outside blowing the whistle,” Ndlovu clarified. “Moreover, when employees blow the whistle, they are removed from the organisation and, in many cases, harassed with legal action. Once they are removed, many have their lives irrevocably changed, and some are even assassinated.”

“Over the past 19 months, our firm has represented three whistleblowers who exposed corruption and maladministration at Daybreak Farms, a state-owned company in the poultry and manufacturing sector,” shared Rupert Candy, a director at Rupert Candy Attorneys Inc. “These individuals faced a barrage of legal processes which were designed to break their spirit. Despite this, the whistleblowers – with the assistance of the insurers whom we act for, and ourselves – were able to ward off numerous civil processes and ensure the withdrawal of criminal charges against them. The company now has a new board which is considering whether to withdraw the ill-advised litigation.”

Candy believes that whistle-blowers are not provided with the protection they deserve. “The Act only protects ‘occupational detriment’ which is work-related detriment and fails to expand into what whistleblowers face, namely, threats, intimidation, bullying, harassment, economic disadvantage, and legal costs. The PDA does not forbid legal action to be taken against someone for making a protected disclosure, nor does it stipulate any sanctions or repercussions for retaliatory actions,” he said.

Many other countries face similar issues, but Ndlovu notes that some comparative legislation offers greater protection. “In Ghana, section 17(1) of the Whistleblower Act 2006 (Act 720) provides whistleblowers with the ability to request and be given police protection if they are afraid for their safety. It further provides a statutory right to legal assistance, and a right of action in the High Court for victimisation,” she highlighted. “In South Africa we have laws in place that are especially unfriendly to whistleblowers who, in many instances, have no experience understanding or interpreting the law.”

Candy and Ndlovu believe the government could address shortcomings in the Act by: Expanding the list of people whom the whistleblower may disclose to in the Act; providing free counselling; offering financial support; offering legal advice; making people aware there are services provided for whistleblowing; educating society about whistleblowing to remove the stigma; making those who receive the information from whistleblowers legally responsible for ensuring confidentiality and providing protection to whistleblowers; and allowing the media to be a place of refuge for whistleblowers.

“It is time for political, commercial and civil society leaders to exert more pressure in favour of a system that normalises speaking out and provides enough protection for those who come forward with information,” said Candy.

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