The government has unveiled sweeping reforms aimed at strengthening protections for whistleblowers, acknowledging that the fear of reprisals, financial ruin and even death has kept many from exposing corruption.

Justice and Constitutional Development Minister Mamamloko Kubayi released the Protected Disclosures Bill for public comment on Thursday, calling it an important intervention to protect individuals coming forward with information about wrongdoing.

Speaking at a media briefing in Pretoria, Kubayi said the government has called the briefing to present the Protected Disclosures Bill to the people of South Africa.

The proposed law stems primarily from the findings of the Judicial Commission of Inquiry into allegations of state capture, commonly known as the Zondo Commission, as well as recommendations from the National Anti-Corruption Advisory Council (NACAC).

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Whistleblowers are at risk

Kubayi painted a clear picture of the risks facing whistleblowers, noting that existing laws fail to adequately protect them.

He said, “Despite current laws being in place, there have been many cases of whistle-blowers suffering occupational harm, including suspension and dismissal. In some cases, dismissals are used to punish employees, delaying the payment of benefits, and tragically, some whistle-blowers have lost their lives.”

He cited high-profile cases including Babita Deokaran, Martha Ngoye, Athol Williams and Mpho Mafole as examples of individuals who had to suffer for exposing corruption.

The minister said many whistleblowers often have to go through complex legal processes without support, losing their livelihoods and assets.

plugging loopholes in current law

The bill aims to address weaknesses identified by the Zondo Commission and NACAC, including unclear reporting processes, weak safeguards and a lack of coordinated systems.

“This Bill seeks to address these shortcomings by introducing a stronger and more comprehensive framework to protect whistleblowers.

“The aim is to ensure that individuals coming forward have a safe reporting channel, are protected from retaliation, are supported throughout the process, and have their disclosures handled efficiently by appropriately competent individuals and institutions,” Kubayi said.

Major protections introduced

Among its key reforms, the Bill introduces:

· Clear definition of disclosure, tortious action and commercial loss in clauses 1, 2 and 3.

The minister explained that disclosure is information exposing inappropriate conduct in the public or private sector. Harmful action is action that results in unfair discrimination, action that threatens or violates the legal rights of the person making the disclosure or the person concerned, action that amounts to bullying or harassment, including conduct that causes personal harm or injury, or causes loss or damage to property or livelihood.

· This sections 19 to 23 outline mechanisms to protect the confidentiality of disclosures and disclosers.

“The Bill prohibits disclosing the identity of the person making the disclosure or any information which could lead to his or her identity without his or her consent, except where it is strictly necessary to deal with the disclosure. It also provides for limited access to information in in-camera court proceedings and redaction of identifying details in legal processes. Any breach of these privacy provisions constitutes a criminal offence,” the minister said.

· Clause 22 of the Bill provides for protection under the Witness Protection Act, 1998.

It extends, where necessary, formal state safeguards for disclosers and related persons, including access to safeguards programs such as transfer, identity protection and safeguards.

· It provides legal aid to those making disclosures in section 23.

Where a discloser cannot afford legal representation, a court or tribunal may refer the case to Legal Aid South Africa, which must provide legal aid at the State's expense where otherwise there would be substantial injustice.

· The Bill introduces a grievance mechanism in sections 24 to 26.

This mechanism is overseen by a retired judge nominated by the President in consultation with the Chief Justice. It allows disclosers or concerned persons to file complaints where disclosures are not made properly, where there is retaliation, or where confidentiality is threatened, and empowers a judge to investigate and refer cases for appropriate action.

· Furthermore, the Bill considers violation of law as a crime.

These include suppressing or suppressing evidence during an investigation, unlawful disclosure of information or the identity of the discloser, and subjecting the discloser to commercial harm or harmful action. These offenses carry severe penalties, including fines and imprisonment of up to 10 or 15 years, depending on the nature of the offence.

Kubayi said, “So, we are saying that those who willfully violate this law, as we propose, will face consequences and a maximum sentence of 15 years. This shows the seriousness of how we want to protect whistleblowers in this regard.”

The Bill also places the legal burden on employers to prove that any action taken against whistleblowers is not connected to their disclosure.

The Minister further explained that a disclosure is a protected disclosure if it is made to the following persons or institutions:

· Every employer, including both private and public sectors. All employers are required to develop procedures for receiving and managing disclosures, including the designation of an official responsible for handling such disclosures.

· A legal practitioner or legal advisor.

· Member of the cabinet, executive council of the province or city council.

· Institutions such as the Public Protector, the South African Human Rights Commission, the Commission on Gender Equality, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Public Service Commission and the Auditor General.

Faster reporting and accountability

To improve efficiency, the proposed law introduces strict timelines:

  • The disclosure must be acknowledged within five days.
  • Decisions taken within ten days.
  • The investigation was completed within 12 months.

A central database will be created to track disclosures and ensure accountability, although no personal information of whistleblowers will be stored.

Incentives and Financial Assistance

In a significant change, the bill opens the door to financial assistance and possible incentives for whistleblowers.

Responding to questions, Kubayi confirmed that support mechanisms would be strengthened through the expansion of the witness protection system.

“Yes, the existing law does not provide witness protection to protect whistleblowers, and that's why this bill, especially once it's approved, gives that mandate, it becomes an expanded mandate for the witness protection unit,” she said.

He said the aim is to build on existing systems rather than creating new ones.

“We don't want to reinvent the wheel. We don't want to change what already exists, but add to it,” he said.

On incentives, Kubayi said the government is cautious about adopting a direct cash reward model but is open to public proposals.

“For example, we can work together with partners in the private sector. If let's say a whistleblower is fired from their job during an investigation, the banks don't repossess their cars, the banks don't repossess their houses… So there are a number of incentive mechanisms we can put in place to incentivize and protect the whistleblower rather than just paying the individual in cash.”

He said that although minimum financial assistance is being proposed, comprehensive models including international practices will be considered during the public consultation.

extended protection beyond testimony

Kubayi explained that the bill proposes to provide witness protection to whistleblowers even before they testify in formal proceedings, a significant change from the current system.

However, he stressed that the bill is not yet law and is subject to public input and parliamentary approval.

The minister said, “This is a bill that will still have to go through public participation… So, currently, the proposals I mentioned here are found in the new bill; they have not been implemented yet.”