Amendments to South Africa’s Protected Disclosures Act

What you need to know and do

Are you aware of the significant additions to South Africa’s Protected Disclosures Act and their implications for your organisation? In this article we bring you the whys and whats of key amendments enacted in August 2017, equipping you to take what by now may be urgent action.


It’s likely that at least one of these views have been expressed in a business near you.

‘We can’t risk losing the contract, we’ll have to pull that employee off their assignment’

 ‘I think my supervisor is in on it and I don’t know who else to talk to’

‘No point speaking up here, you don’t get feedback and concerns are ignored’

 ‘I can’t report this, I’d be breaching my confidentiality agreement and lose my job’

‘There aren’t many jobs going, if I lose mine for speaking up, how will I feed my family?’

 ‘It’s so unfair that someone can make false allegations and get away with it!’

These are examples of the very scenarios that the 2017 amendments to South Africa’s Protected Disclosures Act seek to address in support of the Act’s primary objectives: that wrongdoing should be brought to light and that whistle-blowers should not suffer prejudice for speaking up.  Let’s look at each scenario to understand the motivation for and the nature of the new provisions. If you would like first to refresh your knowledge of the original Act, you can first read our overview article here.  Find the original Act here and the full Amendment Act here.

Scenario 1

‘We can’t risk losing the contract, we’ll have to pull that employee off their assignment’

The problem

While employees have been protected from retaliation and ‘occupational detriment’ for blowing the whistle since the PDA was enacted in 2000, it did not extend to the many people who work in your service but who are not direct employees. Think of the window into your business operations held by your contractors, consultants and agents, let alone by workers contracted through a temporary employment service. Now consider that they too need the right and responsibility to report wrongdoing if the PDA is to achieve its objectives.

These workers may be employed by your suppliers, but you have the power to cause them occupational detriment when, for example, you even indirectly threaten your supplier’s continued contract unless an employee who has blown the whistle on you is taken off it.

The response

Throughout the Amended Act, the words ‘…and workers’ now follows the word ‘employees’, broadening the scope of individuals who have rights and who cannot suffer occupational detriment in terms of the legislation. The changes go further in that as an employer you are now jointly and severally liable for any injustice experienced by an employee arising from their deployment by a temporary employment service to your business.  By the way, employees and workers now also include former employees and workers. Remember too that the Act applies to any employees and workers stationed outside South Africa.

You may need to seek legal advice on how to mitigate the risk and fulfil the responsibilities you now have to this expanded group. You should certainly exercise extreme caution when one of your suppliers’ employees has made a disclosure about your business, be that directly to you, to their primary employer or to another designated party. Your contractual arrangements with suppliers may need review, but as we see in the next scenario, this is not a development that can be subverted by strengthening confidentiality clauses.

Scenario 2

‘I can’t report this, I’d be breaching my confidentiality agreement and lose my job’

The problem

Employers around the world have tried to side-step the threat of an employee (or worker) exposing wrong-doing by introducing ‘anti-whistle blowing’ clauses into their terms of employment and confidentiality agreements. Their aim has been reduced risk of reputational harm, regulatory sanction and loss of business, but from the perspective of government, shareholders and consumers, it defeats the purpose of the legislation. The fear of retaliation in any form is what deters most potential whistle-blowers.

The response

The original Act set out a seemingly exhaustive list of punitive actions by employers that are deemed occupational detriment and prohibited. This list sets out the many ways in which an employee may suffer adverse consequences, ranging from dismissal to less severe forms of disadvantage. In the single addition to the list, the Amendment Act now protects the whistle-blower from any civil claim by the employer where the disclosure is a breach of a confidentiality requirement.  Simply put, you cannot contract out of the PDA via a secrecy clause.

Scenario 3

‘I think my supervisor is in on it and I don’t know who else to talk to’

The problem

Some organisations have well-developed procedures readily available to all employees, while others rely on informal approaches to matters such as whistle-blowing. We’ve all had the experience of thinking that information is easily accessible to employees, only for them to report that they are unaware of its existence. Even when a procedure for how things should be done is agreed and supported at the highest management level, it may not filter down through layers of supervision or out into satellite operations.

The response

It’s no longer optional – the amended PDA requires every employer to establish and effectively communicate internal procedures for the reporting of impropriety and to communicate these to employees and workers. It’s no longer enough to bring the contents of the Act to their attention, you need to set out in writing how reports should be handled in your organisation and in compliance with the PDA.

You will need to dust off any existing procedure documents, ensure their compliance with the amendments to the Act, make them accessible to all and provide education to ensure they are understood. The revised procedures will naturally be a part of your new employee take-on and induction process. What’s more, you need to apply your mind to how you are going to communicate your procedures to all workers as defined in scenario one.

Scenario 4

‘No point speaking up here, you don’t get feedback and concerns are ignored’

The problem

We often hear the employee view that their reports fall on deaf ears. There are certainly instances where a disclosure does not receive deserved attention. It is also the case that investigations can take a long time and need to be handled sensitively, taking other legal requirements into consideration. It’s not surprising that many whistle-blowers conclude that a matter has not been escalated or that nothing is being done. Worse still, they may erroneously conclude that the person they made the report to is a party to the wrongdoing.

These conclusions rightly or wrongly deter future reporting as, together with fear of retaliation, a lack of confidence that action will be taken is a top reason given by employees for not coming forward.

The response

The amended PDA requires that a whistle-blower be provided with written feedback according to specified time-frames. You now have 21 days within which to acknowledge the disclosure, to decide whether to investigate the matter (explaining your decision and providing an estimated time-frame for its completion if an investigation is proceeding), or to decide whether to refer the disclosure on to a more appropriate person or body.

Where the matter is referred to another person or body, they too have 21 days within which to decide and inform the discloser if an investigation is being undertaken (with a reasonable estimate of its likely duration), or why an investigation is not being undertaken. Thereafter the employee or worker should be updated at no more than two-monthly intervals that a decision is still pending. The words ‘in any event within six months’ of the original disclosure or its referral are used when specifying the need to advise the discloser whether an investigation is ongoing or will not be undertaken. Regardless of the time taken, the whistle-blower must be notified of the conclusion reached as soon as possible.

You can refer to the new section in the amendment entitled ‘Duty to inform employee or worker’ for the finer timing detail. Seek legal advice to ensure your policy is updated appropriately.

Don’t worry! If the report has been made anonymously it is understood that you cannot provide feedback to someone whose identity you don’t know. The feedback procedure applies to open or confidential reports but not to anonymous ones.

If giving feedback on progress will compromise the process of getting to the bottom of a criminal offence, you may be exempt from the duty to inform. This is an instance in which your attorney’s advice will be essential.

Scenario 5

 ‘There aren’t many jobs going, if I lose mine for speaking up, how will I feed my family?’

The problem

Employees have a lot at stake when disclosing information that they fear an employer may rather not hear. The future ability to fulfil one’s family responsibilities can weigh heavily on the mind of a potential whistle-blower. In a worst-case scenario a whistle-blower may fear not only occupational detriment but the potential for threat to their personal safety.

The response

The original Act was vague on the subject of remedy where occupational detriment had been suffered, simply awarding an employee the right to approach the courts for ‘appropriate relief’. The Amended Act goes further by stating that proven occupational detriment may result in three types of remedial action: the payment of compensation, the payment of actual damages suffered, and the remedy of the occupational detriment suffered by the employee. Remember that in the case of a third-party worker, you can be jointly liable with their direct employer.

Scenario 6

 ‘It’s so unfair that someone can make false allegations and get away with it!’

The problem

It happens less often than feared, but when a report containing a false allegation is made it can have draining and devastating consequences. Draining? Time and money may be diverted from legitimate activities to undertake an unneeded investigation. Devastating? Perhaps not always, but the doubt that can hang over the unfairly and falsely accused can cloud the way they are seen well into the future.

The response

The Amendment Act creates an offence of knowingly making a false ‘disclosure’, and the offence extends to those who ‘ought reasonably to have known’ that the information they provided was false. Where there was an intention to cause harm, and where harm was suffered, the employee or worker may be liable to a fine, to imprisonment for up to two years, or to both a fine and imprisonment.


The Amended Protected Disclosures Act introduces significant new obligations and protections that require the attention of all South African employers, and this article is not exhaustive. Ensure that your policies and procedures comply with the full provisions of the Act as amended and seek professional legal advice for compliance assurance, interpretation and application to specific cases.


Written for Whistle Blowers Pty Ltd by Penny Milner-Smyth

Disclaimer: The content in this article is for information purposes only and does not constitute legal advice.  Always consult an employment law attorney to obtain advice with respect to any aspect of this legislation.

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