Legal moves afoot to unmuzzle the brave

Proposed amendments to the Protected Disclosures Act include protecting whistle-blowers against criminal and civil liability. This would ensure that if an employee is shown to have made a protected disclosure, they will not face related civil lawsuits or prosecution.

The Open Democracy Advice Centre, which has done much work on the rights of whistle-blowers in South Africa, says this is an important step to combat the actions sometimes used to victimise them.

In a research document titled Heroes under Fire, the organisation states that defamation claims were not uncommon. “The financial power of institutions means that these claims may be easily abused to try and silence legitimate acts of disclosure,” it says.

Alison Tilley, Open Democracy’s head of advocacy, said: “If you are an employer, one with deep pockets, you can shut the whistleblower down.”

Whistle-blowers can approach a high court for an interdict if there is a nexus between what is happening and their protected disclosures, she said.

Asked about the case involving Trillian and the state capture whistle-blower, Tilley said she was not privy to the details. But, she added: “This is not a normal case. The stakes are high. As a whistleblower, you can’t fight every action by the employer, who has the capacity to tie you down.”

African Christian Democratic Party MP Steve Swart has done extensive work on the Bill. He says whistle-blowers who make protected disclosures in line with the required process must enjoy full protection from victimisation.

Although companies or employers can pursue valid labour proceedings caused by such disclosures, he said it would be of great concern if the Trillian whistleblower was being victimised after having made such far-reaching disclosures to the public protector.

He said the amendments to the Act are currently before the National Council of Provinces and are aimed at tightening the legislation to ensure greater protection for whistle-blowers. —