Sameera Casmod | sameerac@radioislam.co.za
19 July 2023 | 10:25 CAT
2 min read

LEGAL LINKUP

In response to the experiences faced by whistleblowers in South Africa, the Department of Justice has taken a significant step towards reforming the country’s Whistleblower Protection Act. The proposed changes seek to extend protection beyond the traditional employer-employee relationship, providing greater safeguards for individuals who expose wrongdoing. As part of this process, the Department of Justice has invited public comments on the proposed reforms, open until August 15, 2023.

In a radio interview this morning with Radio Islam International, Jacqui Reed, Senior Associate of International Law from Herbert Smith Freehills, shed light on the importance of these reforms and how they aim to offer enhanced protection to whistleblowers.

Explaining the essence of the proposed reforms, Reed said, “The Act currently deals with circumstances where an employer and an employee, where that relationship exists and where the employee then blows the whistle in relation to certain conducts.”  The proposed reforms seek to broaden its scope by expanding protection to encompass various types of relationships. Reed said that the Act aims to provide coverage to individuals who report wrongdoing in various contexts, not just within the confines of an employment setting.

One of the significant proposed reforms highlighted by Reed is the shift in the burden of proof, as she stated, “In addition to that, there’s also the burden of proof that’s now been moved from the employee to the person or from the individual to the person who conducts the detrimental action. So there are some additional protections that have been provided for in the Act in order to ensure greater protection.”

The proposed reforms introduce the concept of “detrimental action” instead of solely referring to “occupational detriment”. This shift aims to protect whistleblowers in situations where they may face negative consequences for exposing misconduct, irrespective of their specific professional arrangements.

This change intends to alleviate the pressure on whistleblowers, making it easier for them to come forward without fearing retaliation. Furthermore, the Act also allows for anonymous claims and allegations, safeguarding the identity of the whistleblower while evaluating the validity of the disclosures.

Reed also shed light on the lessons that can be drawn from other countries’ successful whistleblower protection systems, “So what they did in the proposed reforms is they looked at a variety of other jurisdictions where whistleblowing regimes are more effective. So it seems that the US has done very well in relation to protected disclosures. They have a variety of other protections available, such as a reward system.”

By studying the practices adopted by countries like the US and others in Europe, the proposed reforms attempt to create a comprehensive framework that addresses the shortcomings of the current system and strengthens whistleblower protection in South Africa.

While the proposed reforms offer hope for improved whistleblower protection in South Africa, the issue of ensuring the safety of whistleblowers remains paramount. The reforms not only seek to protect the individuals but also propose changes to the Whistleblowers Act, linked to the Protected Disclosures Act, which may further enhance protection.

With the public comment period open until August 15, 2023, the proposed reforms have garnered attention and support. The political will to strengthen whistleblower protection suggests that the reforms could be fast-tracked, offering much-needed relief to those who risk their lives to expose corruption and misconduct.

As South Africa moves forward with this vital reform process, the nation takes a step towards creating a safer environment for whistleblowers, encouraging them to play a crucial role in safeguarding the integrity of its institutions.

Listen to the full interview on Sabaahul Muslim with Moulana Sulaimaan Ravat here.