Justice and Constitutional Development releases proposed reforms to whistleblowing legislation for public comments

29 June 2023

The Department of recommendations on reforming the whistleblowing legislative landscape have been made available for public comment by the Minister of Justice and Correctional Services, Mr Ronald Lamola.

The recommendations are based on thorough research and comparative analysis of Whistleblower systems in various countries worldwide, including the United States, the United Kingdom, New Zealand, Canada, and Australia, all of which have established frameworks.

The Department also evaluated Whistleblower systems in five African nations - Uganda, Namibia, Kenya, Tanzania, and Ghana - to ensure a comprehensive evaluation. The selection of these countries was strategically diverse, enabling us to explore the universal aspects of the Whistleblower phenomenon comprehensively.

The research and recommendations follow President Cyril Ramaphosa's response to the Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector on 24 October 2022.

Where the President said:

"The Commission identified whistle-blowing as an essential weapon in the fight against corruption.

The actions of whistleblowers have played a vital role in exposing many of the activities that were part of state capture.

Whistleblowers need to be encouraged to report instances of fraud and corruption and need to be protected from victimisation, prejudice, or harm.

The Department of Justice is reviewing the Protected Disclosures Act and Witness Protection Act to give effect to the Commission's recommendations on the protection of whistleblowers.

This will ensure, among other things, that whistleblowers receive the protections afforded by the UN Convention Against Corruption and that whistleblowers have immunity from criminal or civil action arising from honest disclosures."

Whilst government continues to acknowledge the bravery of whistleblowers who speak up to ensure justice is served. Unfortunately, there are strong trends of retaliation from those who want to silence them. As such, whistleblowing is a complicated and often risky position to take.

The document covers both whistleblower and witness protection. The study aimed to evaluate the current legislation on protected disclosures and witness protection in South Africa, looking out for any gaps or shortcomings in the system.

It is divided into three parts, examining the legal framework, procedures and practices, and resources available to support whistleblowers.

The discussion document proposes several measures to enhance the protection of whistleblowers. These include expanding the scope of the Protected Disclosures Act to cover more than just the employer-employee relationship, establishing a fund to support whistleblowers, and granting greater authority to the South African Human Rights Commission in handling protected disclosures. These changes could positively impact promoting transparency and accountability in various sectors.

Furthermore, the discussion document recommends that whistleblowers be offered the necessary legal and emotional assistance to help them navigate the complicated legal system and deal with the emotional challenges that come with it. These recommendations are designed to create a comforting and supportive environment for whistleblowers, encourage accountability and transparency, and inspire more people to speak up against fraud and corruption in our society.

The release of this discussion document is a positive step forward, coming shortly after the celebration of World Whistle-blower Day, 23 June by Transparency International.

Minister Ronald Lamola echoes the sentiment that robust whistleblower protection laws and public scrutiny are crucial in protecting citizens and institutions from corruption.

With the ability to come forward and report cases to their employer, authorities, or civil society, individuals are empowered to prevent or expose potential corruption. By creating a culture of transparency and accountability, we can build a brighter future for all.

As the process unfolds, the Minister is actively collaborating with various stakeholders to establish a provisional framework to implement some of the proposed recommendations and offer support to whistleblowers who have suffered retaliation. The process is being addressed with urgency and care to ensure that those brave enough to speak up are protected and their concerns are taken seriously.

The document can be accessed on the departmental website as follows: https://www.justice.gov.za/legislation/invitations/invites.htm

Comments can be sent to: [email protected]

For the attention of:

Adv Thobeka Nkabinde

Branch Legislative Development and Legal Services

The deadline for comments is 15 August 2023.

Issued by Chrispin Phiri, Spokesperson : Ministry of Justice and Correctional Services, 29 June 2023