Reform on the Horizon: Whistleblowers Afforded More Protection

"When people are silent, and where people are silenced, the consequences are very dangerous." - Rabbi Gideon Pogrund, Founding director of the Centre for Business Ethics at the University of Pretoria

On 29 June 2023, a discussion document proposing reforms for the whisteblower protection regime in South Africa was published. The purpose of the document is to:

1. expand the scope of the Protected Disclosures Act 26 of 2000 ("PDA") to encompass a wider range of relationships;
2. ensure that adequate resources and support are given to whistleblowers; and
3. afford the Human Rights Commission with the authority to address protected disclosures.\

The discussion document was produced following a detailed analysis of the approach to whistleblowing in a number of jurisdictions, a summary of which is set out below.

FOREIGN JURISDICTIONS

The laws which regulate whistleblowers in the United States of America are extensive and provide key protections and incentives including confidentiality assurances, financial reward and independent reporting channels. This approach ensures that whistleblowers believe they are empowered and safe.

In the United Kingdom, the Public Interest Disclosure Act does not include a reward or incentive provision due to, amongst others, the legal costs associated with the system and the view that incentives will not achieve an open reporting culture and may result in trivial issues being reported.

The Public Servant's Disclosure Protection Act only extends to public servants in Canada and, as a result, Canada has faced challenges relating to the insufficient protection of other categories of whistleblowers from significant financial, professional, and health-related consequences.

Whilst New Zealand's Protected Disclosures Act focuses only on the employer-employee relationship, the scope of protection extends to volunteer workers, homeworkers, defence force members and former employees.

In Australia (Victoria) the Protected Disclosure Act affords varied measures of protection to all sectors of society, including confidentiality of the whistleblower's identity, immunity from liability in respect of civil, criminal and disciplinary action, and protection from defamation, damages and the imposition of penalties.

The Whistleblower Protection Act is the governing piece of legislation in Namibia. The protections offered to individuals extend beyond the employment relationship and provision is made for anonymous disclosures as well as rewards. Whistleblowers are also protected from any detrimental action taken against them, including harassment, harm to persons or property, intimidation, or negative employment consequences.

In Uganda, the Whistleblower's Protection Act affords protection to any person who makes a disclosure of impropriety under the relevant legislation. Provision is also made for rewards of 5% of the net liquidated sum of money recovered based on that disclosure.

Tanzania is governed by the Whisteblower and Witness Protect Act which requires disclosures to be made to a competent authority, who is not permitted to disclose the whistleblower's identity. Disclosures will not be protected where they are likely to cause prejudice to, amongst others Tanzania's sovereignty and integrity.

The Whisteblower Act, which is applicable in Ghana, provides that protected disclosures are required to be made in good faith and with reasonable cause. Provision is also made for the establishment of a fund to reward whistleblowers.

Kenya has not yet enacted whistleblower legislation but recently introduced the Whistleblower Protection Bill which similarly proposes that a fund be established to provide financial support to whistleblowers.

PROPOSED AMENDMENTS TO CURRENT PROVISIONS OF THE PDA

The following amendments have been proposed:

• replace the definition of "occupational detriment" with "detrimental action" in order to extend the nature and scope of the relationship beyond that of employer-employee;
• shift the burden of proof from the whistleblower to those responsible for the detrimental action;
• reduce the investigation completion time to 3 months;
• require the employer to pay the employee's interim legal costs in respect of a claim for detrimental action; and.
• hold those institutions and individuals which do not take action when disclosures are made accountable in the form of imprisonment or a fine.

PROPOSED NEW PROVISIONS IN THE PDA

The following new provisions have been proposed:

• identity of the whistleblower must be kept confidential unless consent is provided or exposing their identity is essential for an effective investigation or to prevent a serious risk;
• persons that use force, coercion, threats or intimidation to deter disclosure commit an offence;
• persons that become aware of a disclosure and fail to act commit an offence;
• render any agreement that aims to contract out of the PDA as being unlawful;
• permit anonymous oral or written disclosures;
• provide legal assistance to whistleblowers;
• create a fund to assist whistleblowers;
• provide for the appointment of a "whisteblower champion" who oversees the entity's policies;
• empower the Human Rights Commission to attend to complaints relating to detrimental action; and
• offer state protection to whistleblowers and their families where their lives or property are endangered.

The public has until 15 August 2023 to comment on the proposed reforms to the PDA. Comments must be emailed to whistleblowingreforms@justice.gov.za.

Authors: Jacqui Reed and Chelsea Richard.