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South Africa

Whistleblower protection and reporting channels in South Africa

Table of contents
  1.  Is there a law on whistleblowing in your country?
  2. Does local law require private entities to establish a whistleblowing system? (If so, which private entities?)
  3. What legal risks does an entity face for not establishing a reporting channel?
  4. Are there any mandatory requirements for establishing a reporting channel under local labour law?
  5. Does local law require employee involvement when establishing a whistleblowing system?
  6. Does local law prohibit employees from disclosing irregularities/misconduct externally, e.g. to the public?
  7. Is there legal whistleblower protection aimed at preventing discrimination against or dismissal of a whistleblower (as employee) under local labour law?
  8. Are there any mandatory requirements and/or accompanying measures under local data protection law?
  9. Does local law prohibit a group of entities from different jurisdictions from setting up a joint whistleblowing system?
South Africa
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1. Is there a law on whistleblowing in your country?

Yes. The Protected Disclosures Act No 26 of 2000 (“PDA”) is the key piece of legislation governing whistleblowing in South Africa. In addition, Section 159 of the Companies Act No 71 of 2008 also contains provisions dealing with the protection of whistleblowers.

2. Does local law require private entities to establish a whistleblowing system? (If so, which private entities?)

Yes. The PDA requires that every employer establishes internal procedures for receiving and dealing with improprieties. Therefore, both private and public entities are required to establish a whistleblowing system

There are currently no sanctions or legal risks for an entity without a whistleblowing system. However, if a whistleblower publicly discloses information, the company will inevitably suffer a loss of reputation.

4. Are there any mandatory requirements for establishing a reporting channel under local labour law?

No.

5. Does local law require employee involvement when establishing a whistleblowing system?

No.

6. Does local law prohibit employees from disclosing irregularities/misconduct externally, e.g. to the public?

No. The PDA makes provision for employees to disclose irregularities/misconduct to external persons/bodies.

Yes. The dismissal of an employee for making what is termed a ‘protected disclosure’ (i.e. whistleblowing irregular conduct) is automatically an unfair dismissal. In addition, an employee may not suffer any ‘occupational detriment’ as a result of making a ‘protected disclosure’. 

8. Are there any mandatory requirements and/or accompanying measures under local data protection law?

No.

9. Does local law prohibit a group of entities from different jurisdictions from setting up a joint whistleblowing system?

No.

Authors

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Portrait ofLucinda Hinxman
Lucinda Hinxman
Director
Johannesburg
Portrait ofZaakir Mohamed
Zaakir Mohamed
Partner
Johannesburg