By Lehlohonolo Lehana.
The Department of Justice and Constitutional Development (DOJC) released the draft of Protected Disclosures Bill for public comment, aiming to strengthen whistleblower protection in South Africa.
Speaking in Pretoria, minister Mamoloko Kubayi described the Bill as a critical intervention to safeguard individuals who come forward with information on wrongdoing.
Kubayi emphasised that the new legislation was not only an update, but an intervention to deal with corruption networks in the country.
The proposed legislation arose largely from the findings of the Judicial Commission of Inquiry into allegations of State Capture, led by Chief Justice Raymond Zondo, as well as recommendations from the National Anti-Corruption Advisory Council.
Kubayi described this Bill as a robust, all-encompassing framework for protecting whistleblowers, effectively addressing previous legislative weaknesses.
She remarked that while the current Protected Disclosures Act offered a basic structure, it had been found to be “critically flawed”, lacking standardised reporting protocols and failing to protect whistleblowers from occupational detriment.
The primary goal of the proposed Protected Disclosures Bill was to provide secure reporting avenues, shield individuals from reprisals, and ensure that disclosures were managed by capable institutions, she added.
The draft Bill is informed by local judicial findings and extensive comparative research into international best practices across several jurisdictions, including the UK and Australia.
Furthermore, Kubayi pointed out that the Bill aligned with global standards such as the African Union Convention on Preventing and Combating Corruption and the United Nations Convention against Corruption to enhance and modernise existing laws.
She strongly emphasised the personal consequences of weak legislation, pointing out that whistleblowers often sacrificed their homes, assets, and careers.
She cited high-profile cases, including Babita Deokaran, Martha Ngoye, Athol Williams and Mpho Mafole, as examples of individuals who suffered for exposing corruption.
Among its major reforms, the Bill introduces:
- A clear definition of a disclosure, detrimental action and occupational detriment in clauses 1, 2 and 3.
The Minister explained that a disclosure is information revealing improper conduct in the public or private sector. Detrimental action is action resulting in unfair discrimination, action that threatens or violates the legal rights of a person disclosing or a related person, action that amounts to intimidation or harassment, including conduct that causes personal harm or injury, or leads to loss of, or damage to, property or livelihood.
• It outlines mechanisms to protect the confidentiality of disclosures and disclosers in clauses 19 to 23.
The Bill prohibits the disclosure of the identity of a discloser or any information that may lead to their identification without their consent, except where strictly necessary for purposes of handling the disclosure. It further provides for restricted access to information, in camera court proceedings, and the redaction of identifying details in legal processes. Any breach of these confidentiality provisions constitutes a criminal offence,” the Minister explained.
• The Bill provides for protection under the Witness Protection Act, 1998, in clause 22.
This extends formal state protection measures to disclosers and related persons where necessary, including access to protection programmes such as relocation, identity protection and security measures.
• It provides for legal assistance to disclosers in clause 23. Where a discloser cannot afford legal representation, a court or tribunal may refer the matter to Legal Aid South Africa, which must provide legal assistance at state expense where substantial injustice would otherwise occur.
• The Bill introduces a complaints mechanism in clauses 24 to 26.
This mechanism is overseen by a retired judge designated by the President in consultation with the Chief Justice. It allows disclosers or related persons to lodge complaints where disclosures are not properly handled, where retaliation occurs, or where confidentiality is threatened, and empowers the judge to investigate and refer matters for appropriate action.
• Furthermore, the Bill criminalises breaches of the legislation. These include the suppression or concealment of evidence during an investigation, the unlawful disclosure of information or the identity of a discloser and subjecting a discloser to occupational detriment or detrimental action. These offences attract serious penalties, including fines and imprisonment of up to 10 or 15 years, depending on the nature of the offence.
The Bill has been released for public comment, with submissions open until 14 May 2026.
“We encourage all stakeholders, including civil society, business, labour, and members of the public, to participate in this process and provide inputs that will strengthen this important piece of legislation,” she said. Kubayi emphasised the importance of written submissions to ensure transparency and legal compliance in the consultation process.