South Africa’s transition to democratic rule has been characterized by high levels of crime, including wide-spread corruption. In response to this challenge and to engender transparency, a legal framework was established under which the whistle blowing policy was introduced.
The legislations which contain provisions for the protection of whistleblowers in South Africa include:
- The Constitution of the Republic of South Africa 1996: As the foundation for other laws, it provides for equality before the law, that everyone has a right to equal protection and benefit from the law; it also guarantees freedom of expression, including freedom to receive or impart information and ideas, and the right to fair labour practices. Pursuant to Section 32 of the Constitution, every person has the right to any information held by a person and needed for exercising or protecting a right.
- The Labour Relations Act of 1995: Sections 186 (2)(d) and 187(1)(h) of this Act define acts which constitute unfair labour practices and unfair dismissal. Section 191 provides remedies for the unfair labour practices and dismissal, and empowers an employee to refer a dispute concerning an unfair labour practice, if the employee has suffered occupational detriment by an employer on account, or partly on account, of having made a protected disclosure.
- The Companies Act of 2008: Section 159 of this Act protects a whistleblower from any civil, criminal or administrative liability for a disclosure made in compliance with the Act. This provision is applicable to all profit and non-profit companies registered pursuant to this Act.
- The Protection Against Harassment Act of 2011: This seeks to protect against all forms of harassment, and can be availed to a whistleblower since a citizen can get a protection order against a person harassing them under the hand of a Magistrate. This Act provides protection against stalking, sexual harassment, and any form *of* communication to the whistleblower which constitutes harassment.
- The Protected Disclosures Act (PDA), 2000 (as amended, 2017): Also known as the Whistleblowing Act, it is the primary legislation on whistleblowing in South Africa. The PDA is applicable to both public and private sectors with the primary aim of protecting employees from being subjected to reprisal in the form of occupational detriment which includes:
(i) being subjected to any disciplinary action;
(ii) being dismissed, suspended, demoted, harassed or intimidated;
(iii) being transferred against his or her will;
(iv) being refused transfer or promotion;
(v) being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage;
(vi)being refused a reference or being provided with an adverse reference, from his or her employer;
(vii) being denied appointment to any employment, profession or office;
(viii) being threatened with any of the actions above; or
(ix) being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security], for having made a protected disclosure.
The PDA is applicable whether or not the information disclosed is confidential, it extends to malpractices occurring overseas.
The Amendment Act extends the protection from just employees to former employees and persons who were employed on temporary contracts, and people who were deployed to posts in a different organisation by their respective employers. The scope of a reportable disclosure was also broadened to include a likely or actual breach.
Any employee, whose rights under the PDA has been breached, is entitled to approach any court with jurisdiction for redress or the Commission for Conciliation, Mediation and Arbitration. The PDA provides for financial compensation, and the right to request for and obtain a transfer to a more favorable workspace.
South Africa’s whistleblowing policy clearly is one of the most developed, detailed and comprehensive legislations in the world as it contains provisions protecting whistleblowers against employment-related reprisals, expressly provides for civil and criminal liabilities and applies to both the public and private sectors.
- Protected Disclosure’s Act No. 26 of 2000, South Africa
- G20 Anti-Corruption Action Plan, ‘Protection of Whistleblowers: Study on Whistleblower Protection Frameworks, Compendium of Best Practices and Guiding Principles for Legislation’.
- Public Service Commission, ‘Whistle-blowing’ p.2, <https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.pmg.org.za/docs/2002/appendces/020515/pda.pdf&ved=2ahUKEwi3683lka7yAhX56OAKHRZSBdoQFnoECAQQAQ&usg=AOvVaw3_sGnjYIarqb-mEs7J>
- Corruption Watch, The Whistleblower’s Handbook