Public Protector welcomes whistleblower protection law amendments

Public Protector Adv. Thuli Madonsela on Tuesday welcomed announcements that government planned to fast-track the process of amending the Protected Disclosures Act.

The amendments will include, among other things, extending the ambit of the Act to transcend employers and employees.

The Public Protector's comments followed her participation in a panel discussion on the reform of the whistleblower protection law in Stellenbosch, where the Deputy Minister of Justice and Constitutional Development, John Jeffreys, alluded to the pending reform process.

She also welcomed suggestions by civil society organisations for the consideration of practices from some western countries, where incentives were used to encourage whistle-blowing.

In such cases, a whistleblower reporting wrongdoing involving money would be entitled to a portion of the funds if the case is prosecuted successfully.

The Public Protector said although the current whistleblower protection law was one of the strongest in the world, it clearly contained gaps that needed to be plugged.

Apart from the narrow jurisdiction, there were other shortcomings, including the fact that the Protected Disclosures Act did not expressly define what would constitute retaliatory action by those in positions of power against those who dared to lift the lid on wrongdoing, she said.

Further moaning the gaps in the protection system while extolling the virtues of the existing protections, including through her office, the Public Protector provided some examples of whistle-blower perils and redemption through the accountability system provided through administrative scrutiny of state conduct by her office.

She said whistleblowers were often charged for misconduct only after reporting wrongdoing.

One of the global practices to address this problem, the Public Protector said, was to include a provision in the law that protects whistleblowers from being charged for things that they were not charged for prior to blowing the whistle.

She explained although they were important, other approaches to ending corruption such as auditing could only pick up a smaller percentage of corruption and related maladies, adding that whistle-blowing was critical in this regard.

"Sunshine is said to be the best disinfectant," she said, quoting Justice Louis Brandies and explaining that "whistleblowers bring into the sun that which happens in darkness".

The Public Protector gave examples of cases in the public sector and the corporate world where wrongdoing was brought to light through whistle- blowing. In this regard, she mentioned the arms deal, bread price fixing scandal and the police leases investigation, among others.

The Public Protector also used the opportunity to correct myths about her office having limited powers to investigate corruption in comparison to the Special Investigation Unit (SIU) and the police. She explained that in terms of the law her office had more powers than the SIU and can do all that the police can do but the powers are not always fully harnessed due to resource constraints.

Organised by the Open Democracy Advice Centre, Right2Know and the University of Stellenbosch's School of Public Leadership, the discussion involved participation from government, academics, lawyers and civil society organisations. It formed part of the 14th International Winelands Conference.

In terms of the law, the Public Protector and the Auditor General are the only independent institutions that are named as safe-houses for whistleblowers under the Protected Disclosures Act.

Issued by the Public Protector South Africa

For more information, contact:

Kgalalelo Masibi
Public Protector South Africa
012 366 7006
079 507 0399


Published Date: 
Tuesday, April 1, 2014