blowing the whistle (part ii) – it’s not the final whistle

by Marianne Mokken | December 14, 2021

Days after the publishing of the first part of this article, the news broke: Whistleblower Athol Williams has left the country fearing for his safety after testifying in front of the Zondo Commission on state capture1.

More of the same.

So, where is the system failing our whistleblowers?

The Protected Disclosure Act 26 of 2000 (“the Act”) has come under severe criticism as pointed out in my previous article. Some of the points of criticism are the following:
  1. Apart from a few circumstances, whistleblowers are required to first make the disclosure within their own organisations2.
  2. Legal protection will always be limited and a reform of society’s values and attitudes towards whistleblowing must occur3.
  3. The Act does not cover the general public when they make a disclosure4, but rather focuses only on disclosures by employees within private and public entities.

Are other countries doing any better?

Corruption is not just a problem in South Africa. According to Transparency International’s Global Corruption Barometer (GCB) – EU5 62% of participants believe that corruption in their government is a problem. Three out of ten people use their personal connections to receive public services or to get medical care. It is not just the public sector, however, that is seen as corrupt. In almost half of the countries surveyed bankers and business executives are seen as the most corrupt6.
On 16 December 2019, Directive (EU) 2019/1937 (“the Directive”) came into force for members of the European Union. Members have until 17 December 2021 to incorporate this directive into their national legislation. According to the EU Whistleblowing Monitor7 none of the member countries have been able to successfully transpose the Directive yet, even though Denmark has become the first EU member to successfully adopt whistleblowing legislation. The Czech Republic, for example, who was one of the first EU members to submit their draft legislation to their parliament was unable to complete the last step in their legislative process and will fail to meet the set December 2021 deadline. It seems that most countries will fail to meet this deadline.
Some of the features of the Directive are as follows:
  1. The Directive does not change the protection of classified information or the protection of legal and medical privilege8.
  2. The Directive also does not affect workers’ rights to consult with their trade union9.
  3. According to Article 4, the definition of whistleblower includes self-employed individuals, shareholders as well as third parties connected to a reporting person such as family members.
  4. Chapters II, III and IV provide for an initial confidential internal reporting process, external reporting as well as public disclosure as last resort. Private companies with at least 50 employees, or an annual turnover or total assets of more than €10 million will be required to have a secure and confidential internal reporting process in place.
  5. Processing of personal data is subject to the General Data Protection Regulations and processing should not be excessive10.
  6. Some of the retaliatory actions specifically prohibited are withholding training, blacklisting for a specific industry, cancellation of a license and permit, and psychiatric or medical referrals11.
  7. Section 20 provides for support for whistleblowers such as free comprehensive and independent information and advice, and legal assistance.
In Australia the Corporations Act of 2001 (“the Act”) provides for protection of whistleblowers. This act provides for anonymous reporting as well as external reporting (for example, to the Australian Securities & Investments Commission and the Australian Prudential Regulation Authority) as first instance. The definition of whistleblower is also quite comprehensive and includes:
  1. An officer (for example a director or company secretary) of a company.
  2. A current or former employee.
  3. An individual who supplies services or goods to the company;
  4. An employee of a person that supplies services or goods to the company.
  5. An individual who is an associate of the company
  6. A trustee, custodian or investment manager, or an officer or employee of a legal person who is any of the aforementioned designations, of a superannuation entity.
  7. A spouse, relative or dependent of one of the people referred to above.
As of 1 January 2020, all public companies, large private companies, and private companies that are trustees of registrable superannuation entities must have a whistleblower policy in place12. Such a policy should include, amongst others, the process to make a disclosure, to whom a disclosure can be made and legal implications for a whistleblower, etc.
The detrimental actions described by the Act include for example, damage to property and reputation, damage to your business or financial position, harassment, or intimidation, etc13.

How can the system be improved?

A few suggestions have been made14:
  1. Incentives for tax evasion whistleblowers.
  2. Establishment of specialised courts and investigative units.
  3. Providing physical security for whistleblowers and their families.
  4. Establishing an independent institution for whistle blowing reporting.
  5. A zero-tolerance approach by employers towards corruption and other irregular activities and the adoption of a “Code of Good Practice”.
The most important improvement will however be a cultural change. In an ideal world, because this seems to be a universal challenge, whistleblowing should be the norm rather than the exception.
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


  4. Botha, M & Van Heerden, A. (2014) ‘The Protected Disclosures Act 26 of 2000, the Companies Act 71 of 2008 and the Competition Act 89 of 1998 with regard to whistle-blowing protection: is there a link?’, TSAR 2014-2, pp.337-358
  5. For access to the full report visit
  6. Transparency International’s Global Corruption Barometer European Union 2021 Citizen’s Views and Experiences of Corruption p5
  8. Article 3 of the Directive.
  9. Article 3 of the Directive.
  10. Article 17 of the Directive.
  11. Article 19 of the Directive.
  12. Section 1317AI(5) of the Act
  13. Section 1317ADA of the Act


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