SOUTH AFRICA: CHIEF JUSTICE ZONDO’S RECOMMENDATIONS REGARDING ‘WHISTLE-BLOWERS’

By Neli Seng,Ashleigh Graham,Luway Mongie Tuesday, October 18, 2022
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Whistle-blowers play an important role, not only in exposing misconduct and criminal conduct, but also in providing evidence for effective investigations.

Whistle-blowers, particularly in South Africa, have been instrumental in exposing corruption in state-owned entities. Their importance has been reaffirmed by the recommendations made by Chief Justice Zondo in his report following the State Capture enquiry. These include a recommendation for the establishment of an independent agency against corruption in public procurement. The recommended mandate for this agency includes the establishment of a council to be responsible for formulating structures to incentivise whistle-blowers to make reports about illicit activities, and be granted additional protections.  

This recommendation would, if implemented, increase the protections available to whistle-blowers. In the recent past, the detriment suffered by those who ‘blew the whistle’ and exposed instances of mass corruption, particularly in the context of state-owned entities and state departments, has been reported in the media.  In one such instance, a whistle-blower who exposed a multi-million Rand corruption scheme relating to a national department was assassinated. Such a deplorable outcome highlights the need to intensify the protection of whistle-blowers.

It is therefore important that employers, particularly in the context of investigations, and those conducting investigations, familiarise themselves with the existing law as well as their obligations relating to the protection of whistle-blowers, and ensure compliance.

We answer some questions frequently asked by clients in this article.

What is important to note when completing an investigation instigated as a consequence of a ‘whistle-blower’ report?

The Protected Disclosures Act 26 of 2000 (PDA) is the primary piece of legislation dealing with whistleblowing in South Africa. One of the objects of the PDA is to protect an employee or a worker as defined in the Act from suffering ‘occupational detriment’ as a result of having made a ‘protected disclosure’.

Section 1 of the PDA defines the ‘employees’ or ‘workers’ to whom the PDA applies; and sections 5 to 9 of the PDA set out the criteria to be met in order for a disclosure to be considered a ‘protected disclosure’.

Briefly stated, such a disclosure would include a disclosure of information by an employee or worker, regarding the conduct of the employer or another employee or worker, who has reason to believe that the information shows or tends to show, inter alia, that a criminal offence has been or is likely to be committed. There are other defined examples for ‘disclosures’ in section 1 of the PDA.

‘Occupational detriment’ includes, inter alia, being subject to disciplinary action or being discriminated against, suspended, demoted, harassed or intimidated.

When must the provisions of the PDA be considered in the context of investigations?

Generally speaking, in instances where:

  • an employer company is investigating allegations that arose as a result of a protected disclosure (as defined by the PDA);
  • an employer company needs to engage with and manage employees or workers who have made protected disclosures;
  • when reports are made on employers’ whistle-blowing policies in the context of ‘anti-bribery and corruption’ due diligence work undertaken by legal teams.

The PDA has recently been amended to include the following legal requirements. These tend to be overlooked, which poses a risk to employers in ensuring that they are compliant in the context of an investigation:

  • Section 3B of the PDA requires the employer to provide feedback to an employee who has made a protected disclosure in instances where the identity of the employee is known. This section further provides inter alia that:
    • The employer must decide within 21 days of receiving the protected disclosure whether it will investigate the matter or refer the matter to another person or body.
    • The employer must then inform the employee or worker who made the disclosure in writing of the decision to investigate the matter, or not to investigate the matter (and provide reasons for the decision), or to refer the disclosure to another person or body.
    • If the employer is unable to decide whether or not a matter should be investigated within 21 days, the employer must inform the employee or worker who made the disclosure in writing that it is unable to take the decision within 21 days and, at regular intervals of no more than two months at a time, inform the employee that the decision is still pending. However, the employer must decide within six months of the protected disclosure having been made whether or not to investigate the protected disclosure.
    • The employer must inform the employee or worker of the outcome of any investigations prompted by his or her protected disclosure.

The PDA is in line with international best practices and employers should ensure that they comply. However, there are currently no penalties for non-compliance other than action that may be taken by an employee in terms of the Labour Relations Act, which would apply where an employee is subjected to an ‘occupational detriment’ as a result of having made a protected disclosure.  This may change in the future, should the President choose to implement the recommendations made by Chief Justice Zondo. It is advisable that employers ensure they exercise good practice at all times, remain abreast of all developments and remain compliant at all times.

Why is it beneficial to obtain legal advice in the context of an investigation?

Generally speaking, reports into investigations that are undertaken by legal firms are privileged. In addition, the services provided can extend to include advice on employers’ obligations when taking legal action on the recommendations.