blowing the whistle (part I)

by Marianne Mokken | October 26, 2021

I recently came across a blog entry discussing the expected regulatory compliance and risk management trends for 20211. The usual suspects are there: data privacy (queue the sighs and rolling eyes!), the changes in our work environment due to the pandemic, risk management related to supply chain, training and then… whistleblowing.

Although the writers of the blog hail from Europe, the latter will strike a particular chord with South Africans after the news of Babita Deokaran’s murder hit the headlines in August this year. She is one of many South Africans who chose not to turn a blind eye to corruption, human rights violations, and other crimes. Corruption Watch reported in their annual report that in 2020 they received the second highest total reports of corruption in a calendar year, namely 4780 reports. 418 of these reports relate to COVID-19 of which 37% relate specifically to the Temporary Employer-Employee Relief Scheme (TERS)2.

So what protection are whistleblowers afforded in South Africa? Is an unhappy ending the expected outcome for all whistleblowers?

Our legal framework

The first line of defense for a whistle blower is the Constitution that protects our right to equal protection and benefit of the law3, and the right to freedom of expression, including the freedom to impart information4.

The Labour Relations Act, the Companies Act and the Prevention and Combating of Corrupt Activities Act also form part of the legal framework that covers whistleblowers.

The most important protection for employees and workers, however, is the Protected Disclosures Act 26 of 2000 (“PDA”). One of the objects of the PDA is 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”5. It is important to understand the scope of the various terminology used:

A disclosure can relate to any one or more of the following:

  1. A criminal offence has been, is being or is likely to be committed;
  2. A person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
  3. A miscarriage of justice has occurred, is occurring or is likely to occur;
  4. The health or safety of an individual has been, is being or is likely to be endangered;
  5. The environment has been, is being or is likely to be endangered;
  6. Unfair discrimination as contemplated in the Employment Equity Act or the Promotion of Equality and Prevention of Unfair Discrimination Act; or
  7. Any of the abovementioned has been, is being or is likely to be deliberately concealed.6

A protected disclosure is defined in the Act as a disclosure made to:

  1. Your legal advisor in the process of obtaining legal advice;
  2. Your employer;
  3. A member of Cabinet or Executive Council of a province;
  4. The Public Protector, South African Human Rights Commission, Auditor-General, etc.;
  5. Any other person under circumstances as described in the Act.7

And occupation detriment is defined as:

  1. Any disciplinary action;
  2. Dismissal, suspension, demotion, harassment or intimidation;
  3. Transfer against his/her will;
  4. Refusal of transfer or promotion;
  5. Where a term or condition of employment or retirement is changed to his/her disadvantage;
  6. Refusal of a reference or provided with an adverse reference;
  7. Denial of appointment to employment, profession or office;
  8. Facing a civil claim for the alleged breach of a duty of confidentiality or a confidentiality agreement specifically related to a criminal offence or non-compliance with the law;
  9. A threat to do any of the abovementioned;
  10. Being otherwise adversely affected in relation to employment, profession, or office.8

The PDA places certain obligations on the person or body that the employee or worker makes a disclosure to9. Section 3B requires amongst others that receipt of the disclosure must be acknowledged, the employee or worker must be informed whether the matter will be investigated or not, or referred to another person or body, and the employee or worker must be informed of the outcome of the investigation.

The PDA has been criticized as giving inadequate protection to whistleblowers. A whistleblower policy is, for example, not mandated by the PDA as in other parts of the world. The question therefore arises whether an employer should have a whistle blower policy in place to address these matters and set out a detailed process for employees and workers to make a disclosure. There are a few advantages of having such a policy in place:

  1. It strengthens the protection offered by legislation to whistleblowers and educates employees considering turning whistleblower.
  2. It indicates to employees in a clear manner that the employer sees wrongdoing in a serious light and is committed to rectifying it.
  3. Possible regulatory action or reputational damage can be avoided where disclosures are made and addressed timeously.
  4. It can protect the employer where false or malicious allegations are made.
Above all the private and public sector should send a clear message to foreign investors that corruption will no longer be tolerated. And whistleblowers should be seen as real-life superheroes, because after all not all superheroes wear capes.

Who can I speak to if I want to blow the whistle?

Corruption Watch
Tel: 0800 023 456

Whistle Blowers

The National Anti-Corruption Hotline (NACH)
Tel: 0800 701 701


  3. Section 9(1) of the Constitution of the Republic of South Africa, 108 of 1996
  4. Section 16(1)(b) of the Constitution of the Republic of South Africa, 108 of 1996
  5. Section 2(1)(a) of the PDA
  6. Section 1 of the PDA
  7. Section 1 of the PDA
  8. Section 1 of the PDA
  9. Annexure A to the Regulations Relating to Protected Disclosures, 2018 contains a list of persons/bodies to whom disclosures can be made and when.


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