South Africa – Whistleblowing Protection

This report is designed to provide an overview of whistleblowing law in South Africa in order to establish best practice legislation.

Legislation particularly aimed at protecting whistleblowers in South Africa has evolved over a number of years and exists today through the Constitution of the Republic of South Africa, the Public Disclosure Act 26 of 2000, the Promotion of Access to Information Act 2 of 2000, the Labour Relations Act 66 of 1995 and the Companies Act 71 of 2008. In addition, there is a body of jurisprudence developed by the Labour, High and Supreme Courts of South Africa.

In order to create an accessible overview, the following report is divided into four main sections:

Background

South Africa is a “society marked by high levels of poverty, continued extreme inequality, high rates of unemployment and job losses and social unrest.”1

Corruption has increased over recent years and Transparency International’s 2009 Corruption Perceptions Index places South Africa as the 64th most corrupt country out of 182 countries.2 Any country falling below a rating of 5 on a scale of 0-10 is regarded as having unacceptably high rates of corruption. South Africa has slipped from a score of 5.1 in 2007 to 4.1 in 2011.

An ISS survey shows that the poor are especially vulnerable to petty corruption and concludes that their inability to access services because they cannot pay bribes further deepens the socio-economic divisions in South African society and the alienation of the poor from the democratic process.3

This is recognised in South Africa’s Public Service Anti-Corruption Strategy:

Diversion of resources from their intended purposes distorts the formulation of public policy and the provision of services. This is as a result of bribe-extraction for delivery of services, poor quality of services and poor access to services. Petty corruption and bribes have a particular impact on the poor. Public programmes such as access to land, health services and the legal system are negated if bribe paying determines the allocation of these priorities and services. It has the effect of benefiting a few at the expense of the many and reinforces existing social and economic inequalities. This in turn undermines the credibility of government and public institutions.4

According to Martin, the following is a brief history of whistleblowing protection in South Africa:

“The policy history of whistleblowing protection has been complex in South Africa. It has gone through a protracted period of development. It initially started as part of a bigger open democracy initiative when it was located in the Open Democracy Bill. It was however not to remain in the Bill. It was subsequently located in the [Public Disclosure Act] PDA where it has been whittled down to a domain of regulation applicable to the workplace, more specifically to the relationship between the employer and employee. Since the enactment of the PDA there has been an ongoing process of review of the PDA and whistleblowing. South Africa is on the cusp of seeing the expansion of the scope of protection for certain whistleblowers associated with companies through a pending amendment to the Companies Act. It however remains limited in scope in the public sector domain. The extent and nature of these limitations have been the subject matter of an in-depth review by the South African Law Reform Commission (SALRC). The SALRC has developed an extensive body of recommendations to address the limitations of the PDA, but these recommendations are in stasis with no clear indication from the authorities as to the pace and the way forward towards a more vigorous culture of transparency in South Africa.”5

Legislation

Constitution of the Republic of South Africa6

The South African constitution is widely regarded as the most progressive constitution in the world. This was a result of the negotiations carried out with an awareness of the injustices of the country’s non-democratic past.

The preamble reveals that the constitution was adopted to:

“Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights [and to] lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.”

In relation to protection for whistleblowers, section 9.1 reads:

Everyone is equal before the law and has the right to equal protection and benefit of the law.

In addition, section 16.1 b) provides:

Everyone has the right to freedom of expression, which includes freedom to receive or impart information or ideas.

Also, section 23.1 states:

Everyone has the right to fair labour practices.

Public Disclosure Act (PDA)7

Vision and objectives of the Act

According to the preamble, the PDA aims to:

Create a culture which will facilitate the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner by providing comprehensive statutory guidelines for the disclosure of such information and protection against any reprisals as a result of such disclosures [and] promote the eradication of criminal and other irregular conduct in organs of state and private bodies.

In addition, the Labour Court of South Africa summed up the envisaged role of the PDA in a 2006 judgment:

The PDA … affirms the democratic values of human dignity, equality and freedom. In this respect its constitutional underpinning is not confined to particular sections of the Constitution such as free speech or rights to personal security, privacy and property. Although each of these rights can be invoked by whistle-blowers, the analysis in this case is from the perspective of the overarching objective of affirming values of democracy, of which the particular rights form a part. Democracy embraces accountability as one of its core values. Accountability, dignity and equality are the main themes flowing through the analysis that follows.8

The stated objectives of the Act are:

  1. To protect an employee, whether in the private or the public sector, from being subjected to an occupational detriment on account of having made a protected disclosure;

  2. To provide for certain remedies in connection with any occupational detriment suffered on account of having made a protected disclosure, and

  3. To provide for procedures in terms of which an employee can, in a responsible manner, disclose information regarding improprieties by his or her employer.

Definitions according to the Act

‘Employee’ is defined as:

Any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any person who in any manner assists in carrying on or conducting the business of an employer.9

‘Employer’ is defined as:

Any person who employs or provides work for any other person and who remunerates or expressly or tacitly undertakes to remunerate that other person; or who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business including any person acting on behalf or on.10

‘Disclosure’ is defined as:

Any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show one or 5 more of the following:

  1. That a criminal offence has been committed, is being committed or is likely to be committed;

  2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;

  3. that a miscarriage of justice has occurred, is occurring or is likely to occur;

  4. that the health or safety of an individual has been, is being or is likely to be endangered;

  5. that the environment has been, is being or is likely to be damaged;

  6. unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No, 4 of 2000); or

  7. that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be deliberately concealed.11

In conclusion, the definitions provided by the PDA exclude protection for agency workers (part-time and temporary workers), volunteers, job seekers, former employees, trade union representatives and suppliers of goods and services to the organisation concerned unless they can prove that they are employees under section 200A of the Labour Relations Act:

  1. Until the contrary is proved, a person, who works for or renders services to any other person, is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:

    1. the manner in which the person works is subject to the control or direction of another person;

    2. the person’s hours of work are subject to the control or direction of another person

    3. in the case of a person who works for an organisation, the person forms part of that organisation;

    4. the person has worked for that other person for an average of at least 40 hours per month over the last three months;

    5. the person is economically dependent on the other person for whom he or she works or renders services;

    6. the person is provided with tools of trade or work equipment by the other person; or

    7. the person only works for or renders services to one person.

In conclusion, PDA excludes significant groups of people who may have knowledge of wrongdoing by or within an organisation who are at risk of significant harmful retribution by the organisation if they were to blow the whistle. This limitation of the scope of the PDA thus undermines one of the express objectives of the Act, namely promoting the eradication of unlawful and irregular conduct within organisations.

When disclosure is protected

According to section 1.9, a protected disclosure means:

A disclosure made to

  1. a Legal adviser in accordance with section 5;

  2. an employer in accordance with section 6;

  3. a member of Cabinet or of the Executive Council of a province in accordance with section 7;

  4. a person or body in accordance with section 8; or

  5. any other person or body in accordance with section 9, but does not include a disclosure —

    1. in respect of which the employee concerned commits an otience by making that disclosure; or

    2. made by a legal adviser to whom the information concerned was disclosed in the course of obtaining legal advice in accordance with section 5.

The Labour Court, in the case of Radebe and another v Mashoff Premier of the Free State Province and Others,12 indicated that this means that for a disclosure to be protected by the PDA, the employee/applicant must show that the disclosure exhibits all of the following elements. If one is absent, it is not a protected disclosure in terms of the PDA:

  1. There must be a disclosure of information.

  2. It must be information regarding any conduct of an employer or an employee of the employer.

  3. It must be made by an employee (or shop steward).

  4. The employee must have reason to believe that the information concerned shows, or tends to show one or more of the improprieties listed under the definition for ‘disclosure’ (a-g) above.

Regarding the type of information that is protected by the PDA, the Supreme Court of Appeal ruled in a case where the Tshwane Municipality sought to argue that a letter written by Mr Weyers to the Engineering Council and others in which he alleged that incompetent people were about to be appointed as systems operators did not constitute information as the allegation was based on a subjective opinion rather than a fact or similar form of information.13 The Court stated:

A further difficulty with this approach to the nature of information under the PDA is that its narrow and parsimonious construction of the word is inconsistent with the broad purposes of the Act, which seeks to encourage whistleblowers in the interests of accountable and transparent governance in both the public and the private sector. That engages an important constitutional value and it is by now well established in our jurisprudence that such values must be given full weight in interpreting legislation. A narrow construction is inconsistent with that approach. On the construction contended for by Mr Pauw the threat of disciplinary action can be held as a sword of Damocles over the heads of employees to prevent them from expressing honestly held opinions to those entitled to know of those opinions. A culture of silence rather than one of openness would prevail. The purpose of the PDA is precisely the opposite.14

The Supreme Court Appeal found that an opinion does qualify as information that may legitimately found a protected disclosure about an irregularity, provided it is premised on facts. The Supreme Court of Appeal held that “the state of a man’s mind is as much a fact as the state of his digestion… [And] an opinion often relates to a fact the existence of which can only be determined by considering the views of a suitably qualified expert.”15

Disclosure to the media

Regarding disclosures to the media, The Labour Court in the matter of Tshishonga V Minister of Justice and Constitutional Development and Another16 sought to balance the competing rights of the employer and the whistleblower by specifying that the following requirement must be met before disclosures to the media will be protected17:

  1. The disclosure must be made in good faith. This goes to the motive behind the disclosure. Was it in good faith or was there an ulterior motive. In the case of mixed motives, one has to ask what the dominant motive was.

  2. It must be based on a reasonable belief that the information is substantially true.

  3. It may not result in personal gain. That is to say, the employee may not gain a commercial or material benefit or advantage as a quid pro quo for the disclosure.

    Conditions 1-3 must be interpreted narrowly and in favour of the employee so as not to defeat the objects of the PDA of eliminating crime, promoting accountable governance and protecting employees against reprisals.

  4. The disclosure must meet one or more of the four conditions set out in Section 9 (2) of the Act. That is the employee must, at the time of the disclosure, have believed that he or she would suffer an occupational detriment if the disclosure were made to the employer; the employee must have reason to believe that relevant evidence will be concealed or destroyed; the employee previously made a disclosure to his or her employer but no action was taken; the impropriety is of an exceptionally serious nature.

  5. It must be reasonable to make the disclosure and reasonableness must be assessed against the criteria in Section 9 (3). Section 9 (3) provides that the reasonableness or otherwise of making a general disclosure must be determined by the following factors:

    1. the identity of the person to whom the disclosure is made

    2. the seriousness of the impropriety

    3. whether the impropriety is continuing or is likely to occur in the future

    4. whether the disclosure is made in breach of a duty of confidentiality

    5. any action the employer has taken or might reasonably be expected to take in response to the disclosure that was first made to the employer. The Tshishonga judgment ruled that a disclosure to the media, if preceded by a disclosure to the employer or a regulatory body, will only be protected if either the employer or regulatory body had taken no action in response to the complaint.

    6. were there any internal disclosure procedures available to the employee and did he or she take them.

    7. is the disclosure in the public interest. The Labour Court in the Tshishonga matter held that a disclosure to the media will not be protected unless it is in the public interest.

Harm the employee is protected from

According to section 3, “[n]o employee may be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure.”

Section 2.6 states that “occupational detriment”, in relation to the working environment of an employee, means:

  1. being subjected to any disciplinary action;

  2. being dismissed, suspended, demoted, harassed or intimidated;

  3. being transferred against his or her will;

  4. being refused transfer or promotion;

  5. being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage;

  6. being refused a reference. or being provided with an adverse reference, from his or her employer;

  7. being denied appointment to any employment, profession or office;

  8. being threatened with any of the actions referred to paragraphs (a) to (g) above; or

  9. being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security.

With regards to disciplinary action, Martin states that “the employee is entitled to apply to the High Court to interdict the employer from proceeding with the disciplinary inquiry and ask the High Court to decide on the protected disclosure. If the High Court finds that the disclosure is protected, then as in the case of the Tshwane municipality, the employer will not be entitled to institute disciplinary proceedings and will be interdicted from doing so. The High Court enjoys exclusive jurisdiction in respect of this prior decision and in respect of granting an interdict as it is entirely a PDA issue and not a labour issue at all.”18

To successfully apply for an interdict (injunction), the applicants must show19:

  1. A prima facie right.

  2. Irreparable harm, or reasonable apprehension of the harm if the interdict is not granted.

  3. No adequate alternative remedy.

If there is an evident nexus between the making of the disclosure and the occupational detriment, the employee is entitled to protection, remedial action and compensation.20

Relief for wrongful occupational detriments

Section 4.2 of the PDA states:

For the purposes of the Labour Relations Act, 1995, including the consideration of any matter emanating from this Act by the Labour Court —

  1. any dismissal in breach of section 3 is deemed to be an automatically unfair dismissal as contemplated in section 187 of that Act, and the dispute about such a dismissal must follow the procedure set out in Chapter VIII of that Act; and

  2. any other occupational detriment in breach of section 3 is deemed to be an unfair labour practice as contemplated in Part B of Schedule 7 to that Act, and the dispute about such an unfair labour practice must follow the procedure set out in that Part: Provided that if the matter fails to be resolved through conciliation, it may be referred to the Labour Court for adjudication.

The permitted relief in cases of unfair dismissal is reinstatement and/or the payment of compensation for non-patrimonial losses up to a maximum of the equivalent of 24 months’ salary, plus any patrimonial losses suffered.21

In the case of an unfair labour practice, the revision of the conduct and /or compensation for non-patrimonial loss up to a maximum equivalent to 12 month’s salary, plus any patrimonial losses.22

According to the Tshishonga case,23 the following are aggravating factors which will count against the employer organisation in the assessment of the amount of compensation for an ‘occupational detriment’24:

  1. A failure by the employer to investigate the disclosure and subsequent retaliation.

  2. The more serious the nature of the occupational detriment, the greater the compensation that will be awarded.

  3. The level of risk that the employee takes in making the disclosure.

  4. The longer the dispute endures, the greater the stress on an employee, which ought to result in higher compensation.

  5. The conduct of the employer in resolving / not resolving the dispute. If the dispute is unduly protracted by the employer, this is to be seen as a continuation of the retaliation against the respondent.

  6. A failure on the part of the employer organisation to testify or offer any explanation if the matter goes to arbitration or court aggravates the claim against them.

  7. Additional insults to and ill-treatment and impairment of the respondent’s dignity are elements of ‘occupational detriment’ which must be taken into account in determining compensation.

A claim for damages in terms of the PDA is limited as it is capped in accordance with the maximum awards that may be made for either automatically unfair dismissal or an unfair labour practice in terms of the Labour Relations Act: damages may not exceed the equivalent of 12 months’ salary for an occupational detriment that amounts to an unfair labour practice and 24 months for an automatically unfair dismissal.

Burden of proof

As stated above, good faith is a requirement for any disclosure in order to be protected. In addition, the Labour Court in Tshishonga v Minister of Justice and Constitutional Development and Another25 stated that when a disclosure is made to the Public Protector and the Auditor-General and general, it also requires an employee to “reasonably believe” that the information is “substantially true” to be protected.

According to the Labour Court in the Tshishonga case, the burden of proof lies with the employer. Therefore, an allegation of lack of good faith must be pleaded and proved by the employer.

The employee bears only the minimal onus of showing a nexus between the making of the disclosure and the occupational detriment according to Communication Workers Union v Mobile Telephone Networks (Pty) Ltd.26 Once this has ben shown to exist, there is a presumption in favor of the employee according to Section 4(2) (a) and (b) of the PDA that any occupational detriment in breach of Section 3 is deemed to be either an unfair dismissal or an unfair labor practice and the matter must proceed through the prescribed labor procedures.

Jurisdiction

According to section 4.1 of the PDA,

Any employee who has been subjected, is subject or may be subjected, to an occupational detriment in breach of section 3, may —

  1. approach any court having jurisdiction, including the Labour Court established by section 15 I of the Labour Relations Act, 1995 (Act No. 66 of 1995), 50 for appropriate relief or

  2. pursue any other process allowed or prescribed by any law.

Although the PDA expressly provides that an employee may approach any court having jurisdiction, this generous jurisdiction used to be limited in the past to the Commission for Conciliation, Mediation and Arbitration (CCMA),27 in so far as it had jurisdiction, and the Labor Court.28 This was largely because the primary cause of action used to be framed as a question of the fairness of the dismissal (or any other relevant detriment), rather than whether the disclosure was one protected by the PDA.

However, the Supreme Court of Appeal (SCA), in the case of City of Tshwane Metropolitan Municipality v Engineering Council of South Africa and another, recently rejected such a limitation of the jurisdiction.29 Instead, the SCA endorsed the earlier decision by the Eastern Cape High Court in Young V Coega DevelopmentCorporations (Pty) Ltd and decided that the High Court has concurrent jurisdiction in matters involving “occupational detriment” in terms of the PDA.

Companies Act30

The Companies Act extends protection for whistleblowers in the private sector, but only for those functioning within ‘companies’.

A ‘company’ is defined according to section 1 as:

[A] juristic person incorporated in terms of this Act, or a juristic person that, immediately before the effective date —

  1. was registered in terms of the —

    1. Companies Act, 1973 (Act No. 61 of 1973), other than as an external company as defined in that Act; or

    2. Close Corporations Act, 1984 (Act No. 69 of 1984), if it has subsequently been converted in terms of Schedule 2;

  2. was in existence and recognised as an ‘existing company’ in terms of the Companies Act, 1973 (Act No. 61 of 1973); or

  3. was deregistered in terms of the Companies Act, 1973 (Act No. 61 of 1973), and has subsequently been re-registered in terms of this Act.

The Companies Act includes a specific protection for whistleblowers through its section 159:

  1. To the extent that this section creates any right of, or establishes any protection for, an employee, as defined in the Protected Disclosures Act, 2000 (Act No. 26 of 2000) —

    1. that right or protection is in addition to, and not in substitution for, any right or protection established by that Act; and

    2. that Act applies to a disclosure contemplated in this section by an employee, as defined in that Act, irrespective whether that Act would otherwise apply to that disclosure.

  2. Any provision of a company’s Memorandum of Incorporation or rules, or an agreement, is void to the extent that it is inconsistent with, or purports to limit, set aside or negate the effect of this section.

  3. This section applies to any disclosure of information by a person contemplated in subsection (4) if —

    1. it is made in good faith to the Commission, the Companies Tribunal, the Panel, a regulatory authority, an exchange, a legal adviser, a director, prescribed officer, company secretary, auditor, board or committee of the company concerned; and

    2. the person making the disclosure reasonably believed at the time of the disclosure that the information showed or tended to show that a company or external company, or a director or prescribed officer of a company acting in that capacity, has —

      1. contravened this Act, or a law mentioned in Schedule 4;

      2. failed or is failing to comply with any statutory obligation to which the company is subject;

      3. engaged in conduct that has endangered or is likely to endanger the health or safety of any individual, or damage the environment;

      4. unfairly discriminated, or condoned unfair discrimination, against any person, as contemplated in section 9 of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000); or

      5. contravened any other legislation in a manner that could expose the company to an actual or contingent risk of liability, or is inherently prejudicial to the interests of the company.

  4. A shareholder, director, company secretary, prescribed officer or employee of a company, a registered trade union that represents employees of the company or another representative of the employees of that company, a supplier of goods or services to a company, or an employee of such a supplier, who makes a disclosure contemplated in this section —

    1. has qualified privilege in respect of the disclosure; and

    2. is immune from any civil, criminal or administrative liability for that disclosure.

  5. A person contemplated in subsection (4) is entitled to compensation from another person for any damages suffered if the first person is entitled to make, or has made, a disclosure contemplated in this section and, because of that possible or actual disclosure, the second person —

    1. engages in conduct with the intent to cause detriment to the first person, and the conduct causes such detriment; or

    2. directly or indirectly makes an express or implied threat, whether conditional or unconditional, to cause any detriment to the first person or to another person, and —

      1. intends the first person to fear that the threat will be carried out; or

      2. is reckless as to causing the first person to fear that the threat will be carried out, irrespective of whether the first person actually feared that the threat would be carried out.

  6. Any conduct or threat contemplated in subsection (5) is presumed to have occurred as a result of a possible or actual disclosure that a person is entitled to make, or has made, unless the person who engaged in the conduct or made the threat can show satisfactory evidence in support of another reason for engaging in the conduct or making the threat.

  7. A public company and state-owned company must directly or indirectly —

    1. establish and maintain a system to receive disclosures contemplated in this section confidentially, and act on them; and

    2. routinely publicise the availability of that system to the categories of persons contemplated in subsection (4).

An analysis of section 159 shows that the Companies Act expands the number of recipients to include both recipients within and outside of the company as there is no obligation or onus on whistleblowers to disclose to internal recipients before disclosing externally to specified external recipients. Also, protection for whistleblowers include employees within not-for profit companies registered in terms of the act. However, the act excludes foreign companies as defined in the Companies Act No 61 of 1973, that is to say, “a company or other association of persons incorporated outside of the Republic of South Africa which … has established a place of business in the Republic.”

What is positive with the Companies Act is that it imposes a number of positive obligations on certain companies, not just to refrain from taking adverse action against a whistleblower, but in fact to facilitate, encourage and act on disclosures made. Designated companies are also required to publicise the procedures to the protected class of whistleblowers, and when they receive any disclosures, they are required to investigate disclosures and notify employees of the outcomes of such investigations.

However, this expanded obligation of creating an organisational culture of disclosure is imposed only on “public” and “state-owned” companies.31 The pre-fixes “public” and “state-owned” do not appear in the general protection clauses of the whistleblowing provision of the Companies Act which seeks to protect disclosures about a company (not specified as a public or state-owned company) in terms of Section 159(3).

As Martin puts it, “[t]he express inclusion of the pre-fixes “public” and “state-owned” in relation to the obligation on companies to take pro-active steps creates the risk that this provision will be interpreted restrictively so as not to apply to non-profit companies and state-owned enterprises that are not registered as companies in terms of the Companies Act.”32

It is also worth noticing that the Companies Act expands the kind of protection that is available for whistleblowers beyond protection from occupational detriment through section 159.4, which provides that whistleblowers who make a protected disclosure are “immune from any civil, criminal or administrative liability for that disclosure”.

Labour Relations Act (LRA)33

The LRA protects whistleblowers through its sections 186 (2)(d) and 187(1)(h).

Section 186(2)(d)

  1. ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving —

    1. an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.34

Section 187(1)(h)

  1. A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if the reason for the dismissal is —

    1. a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.35

Following this it is clear that the protection for whistleblowers afforded by the PDA becomes effective before the protection afforded by the LRA is applicable.

Promotion of Access to Information Act (PAIA)36

PAIA allows citizens to request information from government and private bodies. The preamble to PAIA consciously places itself at the centre of a culture of transparency and accountability. The preamble states that PAIA aims to:

  1. Foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information,

  2. Actively promote a society in which people in South Africa have effective access to information to more fully exercise and protect their rights.

According to section 9, the objectives of PAIA are to “give effect to the right of everyone to access information held by both public and private entities and to regulate the procedures for applying for information from these bodies.”

Possible introduction of the ‘Secrecy Bill’37

The Protection of State Information Bill (the ‘Secrecy Bill’) is a highly controversial piece of proposed legislation in South Africa in order to replace the 1982 Act. The bill aims to regulate classification, protection and dissemination of state information, weighing state interests against transparency and freedom of expression and should this bill be enacted into law, it has been stated that it will “represent ‘a retreat towards the secrecy that characterized South Africa before its democratic transition.’”38

The bill was written up to protect state information, however, it also includes clauses which criminalise whistle blowing, potentially cover up corruption and rid South Africans of their right to information and freedom of expression.

Espionage and hostile activity offences which punish the communication of classified information are punishable by jail terms ranging from three years to 25 years, and are considered by critics to be so broad that they could apply to legitimate whistleblowers and anyone else exposing classified information in the public domain.

Section 36 Espionage offences

  1. It is an offence punishable on conviction by imprisonment for a period not less than 15 years but not exceeding 25 years —

    1. to unlawfully and intentionally communicate, deliver or make available state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state; or

    2. to unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state.

  2. It is an offence punishable on conviction by imprisonment for a period not less than 10 years but not exceeding 15 years —

    1. to unlawfully and intentionally communicate, deliver or make available state information classified secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state; or

    2. to unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified secret which the person knows or ought reasonably to have known would directly benefit a foreign state.

  3. It is an offence punishable on conviction by imprisonment for a period not less than three years but not exceeding five years —

    1. to unlawfully and intentionally communicate, deliver or make available state information classified confidential which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state; or

    2. to unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified confidential which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state.

  4. If a court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in this section, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence.

Section 38 Hostile Activity Offences

  1. It is an offence punishable on conviction by imprisonment for a period not exceeding 20 years for any person to —

    1. unlawfully and intentionally communicate, deliver or make available state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a non state actor engaged in hostile activity or prejudice the national security of the Republic; or

    2. unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a non state actor engaged in hostile activity or prejudice the national security of the Republic.

  2. It is an offence punishable on conviction by imprisonment for a period not exceeding 15 years for any person to —

    1. unlawfully and intentionally communicate, deliver or make available state information classified secret which the person knows or ought reasonably to have known would directly or indirectly benefit a non state actor engaged in hostile activity or prejudice the national security of the Republic; or

    2. unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified secret which the person knows or ought reasonably to have known would directly or indirectly benefit a non state actor engaged in hostile activity or prejudice the national security of the Republic .

  3. It is an offence punishable on conviction by imprisonment for a period not exceeding five years for any person to —

    1. unlawfully and intentionally communicate, deliver or make available state information classified confidential which the person knows or ought reasonably to have known would directly or indirectly benefit a non state actor engaged in hostile activity or prejudice the national security of the Republic; or

    2. unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified confidential which the person knows or ought reasonably to have known would directly or indirectly benefit a non state actor engaged in hostile activity or prejudice the national security of the Republic.

In addition, the Right to Know Campaign (R2K)39 states that problems include:

  • It criminalises citizens instead of holding to account civil servants who are responsible for keeping secrets.

  • A whistleblower, journalist or activist disclosing classified information with the purpose of revealing corruption or other criminal activity can still be prosecuted under the “espionage” and related offences clauses to avoid them invoking the limited public interest defence.

  • Persons in possession of classified state information face draconian jail terms of up to 25 years.

  • The bill’s procedure to apply for the declassification of information conflicts with PAIA, while the newly created Classification Review Panel is not sufficiently independent: “The simple possession of classified information appears to be illegal even pending a request for declassification and access.”

  • Information classified under apartheid law and policies that may be counter to the constitution remain classified, pending a review for which no time limit is set.

The National Assembly voted in the Protection of Information Bill on 22 November 2012 with 229 votes. The Bill will now go to National Council of Provinces and then back to the National Assembly before the president signs it and it gets gazetted.

Implementation

A 2008 study sought to establish if, and how many South Africans are blowing the whistle. The study defined “whistle-blowing” as the disclosure of wrongdoing in the workplace by a person to their boss or to other people. The results showed a statistical decrease in whistleblowing. One in five, or 21.7% of respondents indicated that they had blown the whistle. 78.3% said that they had not done so. This number has decreased, rather than increased, since 2007. Given the increase in corruption, and more importantly, in the perceived level of corruption amongst the public in South Africa, we should be seeing an increase in the rate of whistleblowing.40 In summary, the statistics that are available tend to show that the current framework is not adequate to meet the challenges of growing corruption and fear of retribution in South Africa.

Gaps

  • No consolidated and comprehensive whistleblowing framework in South Africa; different laws applying differently to public and private entities; different levels of protection for different categories of whistleblowers.

  • No public body dedicated to whistleblowing. Hence, no monitoring or reviewing of whistleblowing legislation, no promoting of public awareness and acceptance and no data on the prevalence of whistleblowing.

  • Big lack of implementation of existing legislation.

  • The protective scope provided for in the PDA is too narrow.

  • PDA does not contain an obligation for companies to take proactive steps to facilitate whistleblowing nor to investigate claims by whistleblowers.

  • No existing guidance for companies with regards to the Companies Act.

  • According to the Companies Act different obligations for “public”/“state-owned” companies and other companies.

  • Neither the PDA nor the Companies Act provides a safe alternative to silence for the general public or “citizen whistleblowers”. This is especially troublesome as “an unacceptably high number of, often the most vulnerable citizens, are victims of corruption within both the public and private sectors.”41


1 Martin, The Status of Whistleblowing in South Africa, June 2010, p. 16. Retrieved at: http://www.opendemocracy.org.za/wp-content/uploads/2010/10/ODAC_Whistleblowing_Report_web.pdf

2 Transparency International website. Retrieved at: http://cpi.transparency.org/cpi2011/results/#CountryResults

3 Van Vuuren H, 2004, Small Bribes, Big Challenge: Extent and nature of petty corruption in South Africa, SA Crime Quarterly, No 9, September 2004, p. 16.

4 Department of Public Service and Administration, January 2002, p. 10. Retrieved at: http://www.home-affairs.gov.za/PDF/Public%20Service%20Anti-corruption%20Strategy-1.pdf

5 Martin, p. 19.

6 Retrieved at: http://www.info.gov.za/documents/constitution/1996/a108-96.pdf

7 Retrieved at: http://www.home-affairs.gov.za/PDF/Protected%20Disclosures%20Act.pdf

8 Tshishonga v Minister of Justice and Constitutional Development and another (JS898/04) [2006] ZALC 104 (26 December 2006).

9 Section 1.2.

10 Section 1.3.

11 Section 1.1.

12 (2528/2006) [2006] ZALC, paras 53 and 60 (Saflii).

13 Tshishonga v Minister of Justice and Constitutional Development and another (JS898/04) [2006] ZALC 104 (26 December 2006).

14 Page 28-29, para 42.

15 Page 28, para 41.

16 JS898/04) [2006] ZALC 104 (26 December 2006).

17 The following summary is taken from Martin, pp. 46 f.

18 Martin, p. 57.

19 Young v Coega Development Corporation (Pty) ltd [2009] 6 BLLR 597 (ECP) High Court.

20 Communication Workers Union v Mobile Telephone Networks (Pty) Ltd (2003) 24 ILJ 1670 (LC).

21 See the Minister for Justice and Constitutional Development and another v Tshishonga (JA 6/07) ZALAC (2 June 2009) and the Labour Relations Act, section 194.4.

22 Ibid.

23 Ibid.

24 Summary taken from Martin, p. 56 f.

25 (JS898/04) [2006] ZALC 104 (26 December 2006).

26 (2003) 24 ILJ 1670 (LC).

27 According to the CCMA website, the CCMA is “a dispute resolution body established in terms of the Labour Relations Act, 66 of 1995 (LRA). It is an independent body, does not belong to and is not controlled by any political party, trade union or business.”

28 Martin, p. 52.

29 (532/08) [2009] ZASCA 151 (27 November 2009)

30 Retrieved at: http://www.info.gov.za/view/DownloadFileAction?id=98894

31 Section 159.7.

32 Martin, p. 63.

33 Retrieved at: https://www.labour.gov.za/legislation/acts/labour-relations/labour-relations-act

34 As amended by the Labour Relations Amendment Act 2002, retrieved at: http://www.westerncape.gov.za/Text/2004/10/lra_amend.pdf

35 Ibid.

36 Retrieved at: http://www.info.gov.za/view/DownloadFileAction?id=68186

37 Retrieved at: http://www.r2k.org.za/billsandacts/1.1.%20Protection%20of%20State%20Information%20Bill.pdf

38 See http://www.sapen.co.za/sa-news/97-pen-expresses-concern-over-secrecy-bill-passed-in-south-african-national-assembly

39 The campaign website: www.r2k.org.za

40 Martin, p. 102.

41 Van Vuuren, Small Bribes, Big Challenge: Extent and nature of petty corruption in South Africa, SA Crime Quarterly, No 9, September 2004, p. 11.