Silencing The Canary - An Attack On Whistleblowers

The assassination of Gauteng Health employee, Babita Deokaran, has become a stark reminder of the danger and plight faced by whistleblowers on a daily basis in South Africa. Despite the widespread outrage caused by the assassination, retaliation against whistleblowers continues to garner headlines in South Africa. Examples include Armand Swart, who was shot 23 times outside his workplace shortly after his employer had reported price gauging of approximately 4,650% to state-owned rail company Transnet, and most recently the death of Pamela Mabini, community activist and a whistleblower in the Timothy Omotoso rape case, who was gunned down outside her home in the Eastern Cape.

Whistleblowers play a fundamental role in the promotion of accountability in both the public and the private sector. Former Chief Justice Raymond Zondo described whistleblowers as "the final defence against corruption and state capture." The current primary source of protection in South African law for whistleblowers is the Protected Disclosures Act No. 26 of 2000 ("PDA"), as amended. Over the past two years there has been much debate on the appropriateness and effectiveness of the current legislation. There appears to be consensus that the legislation falls significantly short on destigmatising whistleblowing and in the protection of whistleblowers, which in turn discourages persons from coming forward with information at their disposal. Case examples point to the fact that, aside of the glaring threat to one's life, whistleblowers face many other challenges, including the loss of employment, disciplinary action taken against them, financial difficulties and psychosocial struggles.

The current provisions of the PDA regarding the protection of whistleblowers include the following:

Protecting employees from being subjected to an occupational detriment on account of them having made a protected disclosure. An occupational detriment refers to disciplinary action, dismissal, transfer, refusing promotion or any other similar act that will have an adverse effect on the employee's continued security of employment.

Current proposed amendments to the PDA include:

• Expanded protections to include protection for contractors and volunteers. This will allow protection for whistleblowers who fall outside of the traditional employment relationship.
• Application of new measures to safeguard and enforce confidentiality and where appropriate to allow for the consideration of anonymous reporting.
• Consideration of the creation of a fund to support whistleblowers. The proposed new Act will establish a fund from which good faith whistleblowers can draw and provide a framework for legal immunity for whistleblowers.
• The appointment of a retired judge as a whistleblower protector. This will entail the establishment of an institution, led by said retired judge, which will be charged with: certifying a whistleblower's status; carrying out any risk assessment and making any necessary referrals based on these assessments; assisting whistleblowers to obtain interdicts in the case of retaliation; instructing institutions to take protective actions in favour of whistleblowers; providing financial assistance to whistleblowers in financial distress; and conducting research in order to make policy recommendations on whistleblower protections. This recommendation is spearheaded by the National Anti-Corruption Advisory Council ("NACAC") and was published in their final report to the president in August 2025.

Regarding confidentiality, proposed reforms to whistleblower protection include prescribing clear policies and procedures for reporting suspicions of bribery and related offences confidentially. Confidential whistleblowing allows a whistleblower to provide information about wrongdoing to a designated person or organisation, while keeping their identity confidential within that group. This contrasts with anonymous whistleblowing, where the identity of the whistleblower is not known at all by the designated group. Some academics have recommended holding those responsible for breaches of whistleblower confidentiality criminally and/or civilly liable. However, this does pose a challenge for investigators as the disclosure of a whistleblower's identity will likely be required during criminal investigations and prosecutions. Hence, the need to financially support whistleblowers in order to provide them with the means to acquire adequate legal and personal protection services.

Financial support should entail reasonable compensation to whistleblowers for legal expenses, loss of employment, and any other damage suffered as a result of the impact of retaliation. Add to the above the recommendation of the Judicial Commission of Inquiry into allegations of State Capture, Corruption and Fraud in the Public Sector that government incentivise whistleblowers in cases where money has been recovered. The topic raises emotive debates as to whether a financial incentive for whistleblowing will open the flood gates to unfounded and fictitious "whistleblowing". Nevertheless, several countries around the world have successfully introduced incentive mechanisms in order to encourage those with information of wrongdoing to come forward.

One such example, is the United States of America, which has in place whistleblower incentive programmes to encourage the reporting of tax fraud and securities violations. Since the inception of the Dodd-Frank Act in the US, whistleblowers who report tax fraud and securities violations to the Internal Revenue Service ("IRS") and the Securities and Exchange Commission ("SEC") are offered financial reward from recovered funds and are protected against retaliation from their employer. This programme allows for the reward of individuals with 15% to 30% of recovered fines for the reporting of original information leading to successful enforcement actions. On 5 May 2023, the SEC announced the largest ever award made to a whistleblower, in the amount of USD279 million. The information and assistance provided by the whistleblower led to various successful enforcement actions. As per the Dodd-Frank Act, the SEC is legally mandated to protect the confidentiality of whistleblowers and did not disclose any information that could reveal the whistleblower's identity.

However, the US Supreme Court clarified in the case of Digital Realty Trust v. Somers that the Dodd-Frank Act's anti-retaliation protections only cover whistleblowers when potential securities violations are reported to the SEC and not internally within an organisation. This decision means that whistleblowers who make use of their employer's internal reporting mechanisms are not afforded the protections offered under the Dodd-Frank Act. The decision has been widely criticised by whistleblower activist groups within the US as it discourages whistleblowers from firstly raising their concerns internally, and also leaves those who choose to do so, vulnerable to retaliation. The case of Digital Realty Trust v. Somers highlights the complexity and challenges faced globally in shaping and developing whistleblower protections.

In South Africa, the PDA aims to protect employees who make disclosures in "good faith" from facing an occupational detriment. The requirement of "good faith" suggests that the disclosure should be made with honest intentions and without the intention of personal gain or of smearing the implicated party. Any proposed legislation creating a financial incentive for whistleblowers will need to take the above principle into consideration and clearly outline the requirements to be met in order to be certified as a whistleblower and subsequently awarded compensation for such actions.

Research indicates that when a person considers raising irregularities and wrongdoing, they will often weigh-up the potential detrimental effects of speaking out against their own conscience and the positive results that may follow from their actions. Bold action is required to address the continued attacks on whistleblowers across the country. At this moment in time, many South Africans do not believe that the positive outcomes, resultant from them blowing the whistle, outweigh the negative ramifications and occupational detriments that often follow.

To strengthen accountability and protect those who speak out, urgent steps must be taken to implement the recommendations of the State Capture Commission and NACAC. Confidentiality is key to addressing fears of physical harm, while financial incentives, particularly where whistleblowing leads to the recovery of public funds, may help mitigate the professional consequences of doing the right thing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.