Justice and Constitutional Development Minister Mmamoloko Kubayi this morning briefed media on the release of the Protected Disclosure Bill. This piece of legislation arises largely from the recommendations of the Zondo commission and the National Anti-Corruption Advisory Council, both of whom found the existing framework to be inadequate in several key aspects – these include the absence of clear procedures for handling disclosures, insufficient protection for whistle-blowers, limited support mechanisms for disclosures, and a lack of coordinated systems to ensure that disclosures are effectively received and acted upon, among others.
The bill, which has long been anticipated, seeks to address these shortcomings by introducing a strengthened and more comprehensive framework for the protection of disclosers, said Kubayi. Besides the two sources already mentioned, it draws from international best practice and key international instruments to ensure alignment with global standards and frameworks.
In addition, in August 2023 interested organisations and individuals, who had been calling for a long time for enhanced whistle-blower protection, submitted comments on the DoJ discussion paper titled Proposed Reforms for Whistleblower Protection Regime in South Africa. In its submission, Corruption Watch (CW) said that any changes to the whistle-blower protection legislative regime must acknowledge whistle-blowers as the focal point, and the objective to ensure their broadest possible protection should be a foundational principle of the legislation and the starting point for the drafting of any definitions.
“Corruption Watch welcomes the Protected Disclosures Bill,” said CW attorney Nkululeko Conco. “Blowing the whistle (or making a protected disclosure) is central to countering corruption and improving transparency, but it has also proven to be fatal in too many instances.”
The new legislation aims to adapt the existing regime to be more effective in dealing with corruption and its consequences and implications. “Practically, corruption networks are becoming increasingly sophisticated, making it harder for law enforcement to detect instances of corruption,” said Kubayi. “Hence, whistle-blowing is crucial in exposing these corruption networks and we remain convinced that without strong and credible protection mechanisms, individuals will be discouraged from coming forward, thereby weakening accountability and undermining our collective efforts to combat corruption.”
The minister outlined the challenges whistle-blowers often face when exposing corruption, including suffering occupational detriment, including suspensions and dismissals. In some cases, employees are punished for reporting wrongdoing, in the form of dismissals, delays to benefit payouts, and in too many cases, by losing their lives.
“Furthermore, when pursuing legal recourse, many whistle-blowers are left to navigate complex processes without adequate institutional support, often while having lost their livelihoods and properties such as their homes and vehicles,” she added.
After public comments and suggestions have been incorporated, the bill will go to Cabinet for approval and then begin the lengthy journey through Parliament. Kubayi emphasised that the DoJ wants the legislature to fast-track the bill and bring it into force as soon as possible.
“We trust that the public involvement process results in more robust whistle-blower protection and support,” commented Conco. “The enhanced protections in the bill could be further strengthened to respond to the harsh reality faced by whistle-blowers and consolidate the fragmented approach to whistle-blowing which is articulated in various pieces of legislation.”
Important reforms
The revamped legislation is designed not only to protect disclosures and disclosers, but also to promote a culture of accountability and transparency across both the public and private sectors, Kubayi asserted. Accordingly, all employers, whether in the public or private sector, are required to develop procedures for receiving and managing disclosures, she said. This includes the designation of an official responsible for handling such disclosures.
Alongside these protections, the bill also provides for the revocation of protection in limited circumstances, such as where a discloser has participated in the wrongdoing, intentionally made false statements, or made disclosures to avoid disciplinary action. “We do not want the bill to be abused where you find that somebody has been part of corrupt activities and when they learn they are about to be busted then they want to become protected as whistle-blowers. We say in that regard the protection falls off.”
Other notable changes include:
- Clear definitions of a disclosure, detrimental action and occupational detriment in clause 1. A disclosure is information revealing improper conduct in the public or private sector. Detrimental action is action resulting in unfair discrimination, action that threatens or violates the legal rights of a person disclosing or a related person, action that amounts to intimidation or harassment, including conduct that causes personal harm or injury, or leads to loss of, or damage to, property or livelihood. Occupational detriment includes, among others, being transferred against one’s will or being refused transfer or promotion, being subjected to any civil claim for the alleged breach of a duty of confidentiality or a confidentiality agreement, or being threatened with these and other actions described in the clause.
- The bill outlines mechanisms to protect the confidentiality of disclosures and disclosers in clauses 19 to 23. This covers any disclosure that may lead to identification without consent, except where strictly necessary for purposes of handling the disclosure. It further provides for restricted access to information, in camera court proceedings, and the redaction of identifying details in legal processes. Any breach of these confidentiality provisions constitutes a criminal offence.
- It provides for protection under the Witness Protection Act, 1998 in clause 22. This extends formal state protection measures to disclosers and related persons where necessary, including access to protection programmes such as relocation, identity protection and security measures. “We’re not establishing a unit or proposing to establish a new unit but expanding the mandate of witness protection to include that of whistle-blowers,” said Kubayi.
- It provides for legal assistance to disclosers in clause 23. Where a discloser cannot afford legal representation, a court or tribunal may refer the matter to Legal Aid South Africa, which must provide legal assistance at state expense where substantial injustice would otherwise occur. “This expands on the mandate of Legal Aid to be particularly able to represent whistle-blowers who are taken through legal processes.”
- It introduces a complaints mechanism in clauses 24 to 26. This mechanism is overseen by a retired judge designated by the president in consultation with the chief justice. It allows disclosers or related persons to lodge complaints where disclosures are not properly handled, where retaliation occurs, or where confidentiality is threatened, and empowers the judge to investigate and refer matters for appropriate action.
- The bill criminalises breaches of the legislation. These include the suppression or concealment of evidence during an investigation, the unlawful disclosure of information or the identity of a discloser, and subjecting a discloser to occupational detriment or detrimental action. These offences attract serious penalties, including fines and imprisonment of up to 10 or 15 years depending on the nature of the offence.
The bill further provides for the establishment of a central database for disclosures, to improve coordination and prevent duplication of investigations. “No personal information will be stored on the database, so it’s tracking of a disclosure and related information for the purposes of tracking, but not who actually disclosed,” Kubayi said.
Disclosures must be acknowledged within five days, decisions taken within 10 days, and investigations completed within 12 months, subject to limited extensions. These actions will be monitored via the central database, enhancing accountability and ensuring compliance with the set timelines.
