The country has put forward a Bill that would significantly bolster the safeguards afforded to whistleblowers as it acknowledges several deficiencies under the current law.
South Africa yesterday (9 April) unveiled its Protected Disclosures Bill as it plots a revamp of its whistleblower legislation. Key changes include enhanced confidentiality mechanisms, jail sentences for unlawfully revealing a whistleblower’s identity, financial incentives for disclosers and better legal support.
Minister of Justice and Constitutional Development, Mmamoloko Kubayi, described the proposed legislation as an “important Bill” which follows the findings of the Judicial Commission of Inquiry into Allegations of State Capture – known as the Zondo Commission – as well as recommendations of the National Anti-Corruption Advisory Council (NACAC).
Current flaws and lost lives
The Zondo Commission found that the country’s 2000 Protected Disclosures Act (PDA) fails to provide a clear-cut procedure for disclosers – namely private and public sector employees – and does not sufficiently guarantee that the disclosures will be protected. Furthermore, it is not proactive in providing physical protection and offers no incentives to the discloser.
“While the current legislation exists, there have been numerous instances of whistleblowers suffering occupational detriment, including suspension and dismissal,” Kubayi said in a statement, adding: “In some cases, dismissals are used to punish employees, payouts of benefits are delayed, and tragically, some whistleblowers have lost their lives.” This includes Babita Deokaran, who was murdered in 2021 after reporting corruption at the Gauteng Department of Health.
In addition, when pursuing legal recourse, many whistleblowers are left to navigate complex processes without adequate institutional support, Kubayi noted.
She continued: “Our government has made fighting corruption a priority. Practically, corruption networks are becoming increasingly sophisticated, making it harder for law enforcement to detect instances of corruption. Hence, whistleblowing is crucial in exposing these corruption networks. 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.”
Key amendments
The Bill – which has partly drawn from the international best practices of jurisdictions such as the UK, Australia, Canada, Kenya and Uganda – seeks to tackle these shortcomings by proposing several crucial reforms.
These include introducing clear definitions of a disclosure, detrimental action (such as unfair discrimination or action that threatens or violates the legal rights of the whistleblower) and occupational detriment.
The Bill, which is currently open for public comment, also provides for protection under the Witness Protection Act, and mechanisms to protect the confidentiality of disclosures and disclosers. These include forbidding the disclosure of a whistleblower’s identity or any information that may lead to their identification without their consent – except where strictly necessary for purposes of handling the disclosure – and providing restricted access to information, in camera court proceedings and the redaction of identifying details in legal processes.
Legal boost
Disclosers would also receive legal assistance under the revamp. In situations where the whistleblower cannot afford legal representation, a court or tribunal can refer the matter to Legal Aid South Africa, which must provide legal assistance at state expense where substantial injustice would otherwise occur.
Whistleblowers and related persons would also be able to submit complaints where disclosures are not properly handled or retaliation occurs, or where confidentiality is threatened. This reform would empower a judge to investigate and refer matters for appropriate action.
Violations of the legislation – such as the concealment of evidence during an investigation, the unlawful disclosure of information or the identity of a discloser, and subjecting a whistleblower to occupational detriment or detrimental action – would be deemed a criminal offence, with the penalties including fines and imprisonment of up to 15 years.
To incentivise whistleblowing, the Bill also recommends financial awards in certain cases where disclosures lead to successful enforcement outcomes, while the establishment of a central database for disclosures to improve coordination and prevent duplication of investigations would also be introduced.
Revocation of protections could also be imposed in limited circumstances, including where a whistleblower has participated in the wrongdoing, made intentionally false statements or provided information to avoid disciplinary action.
Must be more than a ‘box-ticking exercise’
Non-profit organisation Corruption Watch (CW), which works to fight corruption in South Africa, welcomed the Bill and hoped that the key reforms are “more than a box-ticking exercise merely to satisfy bureaucratic requirements, rules or appearances”.
CW lawyer Nkululeko Conco said in a statement: “We are pleased that the financial burden of making disclosures has been considered, and legal assistance as well as an award has been proposed, but these areas require further consideration.”
He added: “Various aspects of the Bill need clarifying, such as the effect of revocation of protection which may expose purported whistleblowers to reprisals, how the Bill interacts with other legislation which includes the protection of whistleblowers (such as the Companies Act), and how the independence and integrity of both the central database and complaints mechanism will be tested.”
Comments on the Bill must be submitted by 14 May 2026.
In January, South Africa proposed revisions to its financial crime legislation and relaxed its energy competition regulations.