2024 WLG Whistleblower Guide: South Africa
Is there a law to protect whistleblowers? If so, which law?
Yes, the Protected Disclosures Act, 2000 (the "Protected Disclosures Act") provides protection to employees and workers from being subjected to any "occupational detriment" as a result of making a "protected disclosure."
Whether a disclosure will constitute a "protected disclosure" for purposes of the Protected Disclosures Act will depend on whether the disclosure was made in good faith and in accordance with applicable prescribed requirements, which vary depending on the recipient of the disclosure (e.g., reports submitted directly to the employer as opposed to reports made to other persons).
Occupational detriment is widely defined in the Protected Disclosures Act and includes, amongst others, (i) disciplinary action, including dismissal, suspension, or demotion; (ii) being refused a transfer or promotion; and (iii) the employee or worker is otherwise adversely affected in respect of his or her employment.
The Companies Act, 2008 (the "Companies Act"), provides protection for whistleblowers, supplementing the protections provided for in the Protected Disclosures Act.
The Department of Justice and Constitutional Development is considering substantial amendments to the Protected Disclosures Act to broaden its scope of application beyond employer-employee relationships, as detailed in a discussion document published in March 2022.
Are companies legally obliged to introduce a whistleblowing system?
Yes, the Protected Disclosures Act makes it mandatory for every employer to (i) authorize appropriate internal procedures for receiving and dealing with information about improprieties; and (ii) take reasonable steps to bring the internal procedures to the attention of every employee and worker.
In addition, the Companies Act makes it mandatory for public companies and state-owned companies to, directly or indirectly, (i) establish and maintain a system to receive disclosures contemplated in this section confidentially and act on them and (ii) routinely publicize the availability of that system.
If so, which companies must introduce a whistleblowing system (number of employees, turnover, sector)?
As outlined above, the Protected Disclosures Act makes it mandatory for every employer (i.e., regardless of size, turnover, and sector) to authorize "appropriate internal procedures" for receiving and dealing with information about improprieties.
The obligation to "establish and maintain a system to receive disclosures contemplated in this section confidentially" prescribed by the Companies Act applies only to (i) public companies, which are profit companies that are not state-owned, private, or personal liability companies, and (ii) state-owned companies.
What forms can a whistleblowing system take (written, verbal, email, electronic tool)?
There is no prescribed form for a whistleblowing system to take, with the exception that (i) in terms of the Protected Disclosures Act, the system must be "appropriate"; and (ii) in terms of the Companies Act, where applicable, the system must allow for confidential submissions.
Which reports must be permitted?
A "disclosure" for purposes of the Protected Disclosures Act includes any information regarding the conduct of an employer, or of an employee or worker of an employer, which is made by an employee or worker who has reason to believe that the information concerned shows or tends to show one or more of the following (i) that a criminal offence has been committed, is being committed or is likely to be committed; (ii) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; (iii) that a miscarriage of justice has occurred, is occurring or is likely to occur; (iv) that the health or safety of an individual has been, is being or is likely to be endangered; (v) that the environment has been, is being or is likely to be damaged; (vi) unfair discrimination as contemplated in Chapter II of the Employment Equity Act, 1998, or the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 ("PEPUDA"); or (vii) that any matter referred to above has been, is being or is likely to be deliberately concealed.
The protections to reporters provided by the Companies Act apply to disclosures made where the reporter reasonably believes that the company has (i) contravened the Companies Act or the various laws listed in Schedule 4 of the Companies Act; (ii) failed to comply with any statutory obligation to which the company is subject; (iii) has engaged in conduct that has endangered, or was likely to endanger, the health or safety of any individual, or had harmed or was likely to harm the environment; (iv) unfairly discriminated, or condoned unfair discrimination, against any person, as contemplated in section 9 of the Constitution and PEPUDA; or (v) contravened any other legislation in a manner that could expose the company to an actual or contingent risk of liability, or is inherently prejudicial to the interests of the company.
Must anonymous reporting be guaranteed?
Neither the Protected Disclosures Act nor the Companies Act requires the anonymity of reports to be guaranteed. However, the Companies Act requires systems to allow confidential submissions.
Who must be able to provide information (only employees or also external third parties)?
The Protected Disclosure Act only protects "employees" and "workers" who make protected disclosures. The definition of a "worker" is broad and extends to independent contractors, consultants, agents, and others.
The Companies Act contemplates specific categories of persons, including (i) shareholders; (ii) directors; (iii) company secretaries; (iv) prescribed officers; (v) employees; (vi) registered trade unions representing employees of the company or other representatives of the employees of the company; (vii) suppliers of goods or services to the company, or employees of such a supplier.
Can companies rely on one centralized hotline or is it necessary to have one hotline for each subsidiary?
Neither the Protected Disclosures Act nor the Companies Act provide for a specific exemption from compliance with the obligations described above in the case of subsidiaries. Subsidiaries, as separate juristic persons, will therefore have to comply with the Protected Disclosures Act and Companies Act to the extent that they are "employers" or "public companies." However, it is possible to implement one centralized hotline, which is utilized by various group companies, provided that it is implemented at the relevant subsidiary and accessible by all relevant persons.
Can a whistleblowing system also be operated by an external body (e.g. consultant)?
Yes.
Are sanctions imposed for failure to introduce a whistleblowing system?
The Companies and Intellectual Property Commission (the "Commission") may issue a compliance notice to companies where there is non-compliance with a provision of the Companies Act, including a failure to implement a whistleblowing system as required. If a company fails to comply with a compliance notice, the Commission may apply to court for the imposition of an administrative fine. The Companies Act makes it a criminal offense to fail to comply with a compliance notice; however, no person may be prosecuted for such an offense in respect of a particular compliance notice if the Commission has applied to a court for the imposition of an administrative fine in respect of that person's failure to comply with that notice.
The Protected Disclosures Act is silent on the consequences of non-compliance with the obligation to adopt appropriate internal procedures for receiving and dealing with information about improprieties.
Is there a law to protect whistleblowers? If so, which law?
Yes, the Protected Disclosures Act, 2000 (the "Protected Disclosures Act") provides protection to employees and workers from being subjected to any "occupational detriment" as a result of making a "protected disclosure."
Whether a disclosure will constitute a "protected disclosure" for purposes of the Protected Disclosures Act will depend on whether the disclosure was made in good faith and in accordance with applicable prescribed requirements, which vary depending on the recipient of the disclosure (e.g., reports submitted directly to the employer as opposed to reports made to other persons).
Occupational detriment is widely defined in the Protected Disclosures Act and includes, amongst others, (i) disciplinary action, including dismissal, suspension, or demotion; (ii) being refused a transfer or promotion; and (iii) the employee or worker is otherwise adversely affected in respect of his or her employment.
The Companies Act, 2008 (the "Companies Act"), provides protection for whistleblowers, supplementing the protections provided for in the Protected Disclosures Act.
The Department of Justice and Constitutional Development is considering substantial amendments to the Protected Disclosures Act to broaden its scope of application beyond employer-employee relationships, as detailed in a discussion document published in March 2022.
Are companies legally obliged to introduce a whistleblowing system?
Yes, the Protected Disclosures Act makes it mandatory for every employer to (i) authorize appropriate internal procedures for receiving and dealing with information about improprieties; and (ii) take reasonable steps to bring the internal procedures to the attention of every employee and worker.
In addition, the Companies Act makes it mandatory for public companies and state-owned companies to, directly or indirectly, (i) establish and maintain a system to receive disclosures contemplated in this section confidentially and act on them and (ii) routinely publicize the availability of that system.
If so, which companies must introduce a whistleblowing system (number of employees, turnover, sector)?
As outlined above, the Protected Disclosures Act makes it mandatory for every employer (i.e., regardless of size, turnover, and sector) to authorize "appropriate internal procedures" for receiving and dealing with information about improprieties.
The obligation to "establish and maintain a system to receive disclosures contemplated in this section confidentially" prescribed by the Companies Act applies only to (i) public companies, which are profit companies that are not state-owned, private, or personal liability companies, and (ii) state-owned companies.
What forms can a whistleblowing system take (written, verbal, email, electronic tool)?
There is no prescribed form for a whistleblowing system to take, with the exception that (i) in terms of the Protected Disclosures Act, the system must be "appropriate"; and (ii) in terms of the Companies Act, where applicable, the system must allow for confidential submissions.
Which reports must be permitted?
A "disclosure" for purposes of the Protected Disclosures Act includes any information regarding the conduct of an employer, or of an employee or worker of an employer, which is made by an employee or worker who has reason to believe that the information concerned shows or tends to show one or more of the following (i) that a criminal offence has been committed, is being committed or is likely to be committed; (ii) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; (iii) that a miscarriage of justice has occurred, is occurring or is likely to occur; (iv) that the health or safety of an individual has been, is being or is likely to be endangered; (v) that the environment has been, is being or is likely to be damaged; (vi) unfair discrimination as contemplated in Chapter II of the Employment Equity Act, 1998, or the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 ("PEPUDA"); or (vii) that any matter referred to above has been, is being or is likely to be deliberately concealed.
The protections to reporters provided by the Companies Act apply to disclosures made where the reporter reasonably believes that the company has (i) contravened the Companies Act or the various laws listed in Schedule 4 of the Companies Act; (ii) failed to comply with any statutory obligation to which the company is subject; (iii) has engaged in conduct that has endangered, or was likely to endanger, the health or safety of any individual, or had harmed or was likely to harm the environment; (iv) unfairly discriminated, or condoned unfair discrimination, against any person, as contemplated in section 9 of the Constitution and PEPUDA; or (v) contravened any other legislation in a manner that could expose the company to an actual or contingent risk of liability, or is inherently prejudicial to the interests of the company.
Must anonymous reporting be guaranteed?
Neither the Protected Disclosures Act nor the Companies Act requires the anonymity of reports to be guaranteed. However, the Companies Act requires systems to allow confidential submissions.
Who must be able to provide information (only employees or also external third parties)?
The Protected Disclosure Act only protects "employees" and "workers" who make protected disclosures. The definition of a "worker" is broad and extends to independent contractors, consultants, agents, and others.
The Companies Act contemplates specific categories of persons, including (i) shareholders; (ii) directors; (iii) company secretaries; (iv) prescribed officers; (v) employees; (vi) registered trade unions representing employees of the company or other representatives of the employees of the company; (vii) suppliers of goods or services to the company, or employees of such a supplier.
Can companies rely on one centralized hotline or is it necessary to have one hotline for each subsidiary?
Neither the Protected Disclosures Act nor the Companies Act provide for a specific exemption from compliance with the obligations described above in the case of subsidiaries. Subsidiaries, as separate juristic persons, will therefore have to comply with the Protected Disclosures Act and Companies Act to the extent that they are "employers" or "public companies." However, it is possible to implement one centralized hotline, which is utilized by various group companies, provided that it is implemented at the relevant subsidiary and accessible by all relevant persons.
Can a whistleblowing system also be operated by an external body (e.g. consultant)?
Yes.
Are sanctions imposed for failure to introduce a whistleblowing system?
The Companies and Intellectual Property Commission (the "Commission") may issue a compliance notice to companies where there is non-compliance with a provision of the Companies Act, including a failure to implement a whistleblowing system as required. If a company fails to comply with a compliance notice, the Commission may apply to court for the imposition of an administrative fine. The Companies Act makes it a criminal offense to fail to comply with a compliance notice; however, no person may be prosecuted for such an offense in respect of a particular compliance notice if the Commission has applied to a court for the imposition of an administrative fine in respect of that person's failure to comply with that notice.
The Protected Disclosures Act is silent on the consequences of non-compliance with the obligation to adopt appropriate internal procedures for receiving and dealing with information about improprieties.
Is there a law to protect whistleblowers? If so, which law?
Yes, the Protected Disclosures Act, 2000 (the "Protected Disclosures Act") provides protection to employees and workers from being subjected to any "occupational detriment" as a result of making a "protected disclosure."
Whether a disclosure will constitute a "protected disclosure" for purposes of the Protected Disclosures Act will depend on whether the disclosure was made in good faith and in accordance with applicable prescribed requirements, which vary depending on the recipient of the disclosure (e.g., reports submitted directly to the employer as opposed to reports made to other persons).
Occupational detriment is widely defined in the Protected Disclosures Act and includes, amongst others, (i) disciplinary action, including dismissal, suspension, or demotion; (ii) being refused a transfer or promotion; and (iii) the employee or worker is otherwise adversely affected in respect of his or her employment.
The Companies Act, 2008 (the "Companies Act"), provides protection for whistleblowers, supplementing the protections provided for in the Protected Disclosures Act.
The Department of Justice and Constitutional Development is considering substantial amendments to the Protected Disclosures Act to broaden its scope of application beyond employer-employee relationships, as detailed in a discussion document published in March 2022.
Are companies legally obliged to introduce a whistleblowing system?
Yes, the Protected Disclosures Act makes it mandatory for every employer to (i) authorize appropriate internal procedures for receiving and dealing with information about improprieties; and (ii) take reasonable steps to bring the internal procedures to the attention of every employee and worker.
In addition, the Companies Act makes it mandatory for public companies and state-owned companies to, directly or indirectly, (i) establish and maintain a system to receive disclosures contemplated in this section confidentially and act on them and (ii) routinely publicize the availability of that system.
If so, which companies must introduce a whistleblowing system (number of employees, turnover, sector)?
As outlined above, the Protected Disclosures Act makes it mandatory for every employer (i.e., regardless of size, turnover, and sector) to authorize "appropriate internal procedures" for receiving and dealing with information about improprieties.
The obligation to "establish and maintain a system to receive disclosures contemplated in this section confidentially" prescribed by the Companies Act applies only to (i) public companies, which are profit companies that are not state-owned, private, or personal liability companies, and (ii) state-owned companies.
What forms can a whistleblowing system take (written, verbal, email, electronic tool)?
There is no prescribed form for a whistleblowing system to take, with the exception that (i) in terms of the Protected Disclosures Act, the system must be "appropriate"; and (ii) in terms of the Companies Act, where applicable, the system must allow for confidential submissions.
Which reports must be permitted?
A "disclosure" for purposes of the Protected Disclosures Act includes any information regarding the conduct of an employer, or of an employee or worker of an employer, which is made by an employee or worker who has reason to believe that the information concerned shows or tends to show one or more of the following (i) that a criminal offence has been committed, is being committed or is likely to be committed; (ii) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; (iii) that a miscarriage of justice has occurred, is occurring or is likely to occur; (iv) that the health or safety of an individual has been, is being or is likely to be endangered; (v) that the environment has been, is being or is likely to be damaged; (vi) unfair discrimination as contemplated in Chapter II of the Employment Equity Act, 1998, or the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 ("PEPUDA"); or (vii) that any matter referred to above has been, is being or is likely to be deliberately concealed.
The protections to reporters provided by the Companies Act apply to disclosures made where the reporter reasonably believes that the company has (i) contravened the Companies Act or the various laws listed in Schedule 4 of the Companies Act; (ii) failed to comply with any statutory obligation to which the company is subject; (iii) has engaged in conduct that has endangered, or was likely to endanger, the health or safety of any individual, or had harmed or was likely to harm the environment; (iv) unfairly discriminated, or condoned unfair discrimination, against any person, as contemplated in section 9 of the Constitution and PEPUDA; or (v) contravened any other legislation in a manner that could expose the company to an actual or contingent risk of liability, or is inherently prejudicial to the interests of the company.
Must anonymous reporting be guaranteed?
Neither the Protected Disclosures Act nor the Companies Act requires the anonymity of reports to be guaranteed. However, the Companies Act requires systems to allow confidential submissions.
Who must be able to provide information (only employees or also external third parties)?
The Protected Disclosure Act only protects "employees" and "workers" who make protected disclosures. The definition of a "worker" is broad and extends to independent contractors, consultants, agents, and others.
The Companies Act contemplates specific categories of persons, including (i) shareholders; (ii) directors; (iii) company secretaries; (iv) prescribed officers; (v) employees; (vi) registered trade unions representing employees of the company or other representatives of the employees of the company; (vii) suppliers of goods or services to the company, or employees of such a supplier.
Can companies rely on one centralized hotline or is it necessary to have one hotline for each subsidiary?
Neither the Protected Disclosures Act nor the Companies Act provide for a specific exemption from compliance with the obligations described above in the case of subsidiaries. Subsidiaries, as separate juristic persons, will therefore have to comply with the Protected Disclosures Act and Companies Act to the extent that they are "employers" or "public companies." However, it is possible to implement one centralized hotline, which is utilized by various group companies, provided that it is implemented at the relevant subsidiary and accessible by all relevant persons.
Can a whistleblowing system also be operated by an external body (e.g. consultant)?
Yes.
Are sanctions imposed for failure to introduce a whistleblowing system?
The Companies and Intellectual Property Commission (the "Commission") may issue a compliance notice to companies where there is non-compliance with a provision of the Companies Act, including a failure to implement a whistleblowing system as required. If a company fails to comply with a compliance notice, the Commission may apply to court for the imposition of an administrative fine. The Companies Act makes it a criminal offense to fail to comply with a compliance notice; however, no person may be prosecuted for such an offense in respect of a particular compliance notice if the Commission has applied to a court for the imposition of an administrative fine in respect of that person's failure to comply with that notice.
The Protected Disclosures Act is silent on the consequences of non-compliance with the obligation to adopt appropriate internal procedures for receiving and dealing with information about improprieties.
Is there a law to protect whistleblowers? If so, which law?
Yes, the Protected Disclosures Act, 2000 (the "Protected Disclosures Act") provides protection to employees and workers from being subjected to any "occupational detriment" as a result of making a "protected disclosure."
Whether a disclosure will constitute a "protected disclosure" for purposes of the Protected Disclosures Act will depend on whether the disclosure was made in good faith and in accordance with applicable prescribed requirements, which vary depending on the recipient of the disclosure (e.g., reports submitted directly to the employer as opposed to reports made to other persons).
Occupational detriment is widely defined in the Protected Disclosures Act and includes, amongst others, (i) disciplinary action, including dismissal, suspension, or demotion; (ii) being refused a transfer or promotion; and (iii) the employee or worker is otherwise adversely affected in respect of his or her employment.
The Companies Act, 2008 (the "Companies Act"), provides protection for whistleblowers, supplementing the protections provided for in the Protected Disclosures Act.
The Department of Justice and Constitutional Development is considering substantial amendments to the Protected Disclosures Act to broaden its scope of application beyond employer-employee relationships, as detailed in a discussion document published in March 2022.
Are companies legally obliged to introduce a whistleblowing system?
Yes, the Protected Disclosures Act makes it mandatory for every employer to (i) authorize appropriate internal procedures for receiving and dealing with information about improprieties; and (ii) take reasonable steps to bring the internal procedures to the attention of every employee and worker.
In addition, the Companies Act makes it mandatory for public companies and state-owned companies to, directly or indirectly, (i) establish and maintain a system to receive disclosures contemplated in this section confidentially and act on them and (ii) routinely publicize the availability of that system.
If so, which companies must introduce a whistleblowing system (number of employees, turnover, sector)?
As outlined above, the Protected Disclosures Act makes it mandatory for every employer (i.e., regardless of size, turnover, and sector) to authorize "appropriate internal procedures" for receiving and dealing with information about improprieties.
The obligation to "establish and maintain a system to receive disclosures contemplated in this section confidentially" prescribed by the Companies Act applies only to (i) public companies, which are profit companies that are not state-owned, private, or personal liability companies, and (ii) state-owned companies.
What forms can a whistleblowing system take (written, verbal, email, electronic tool)?
There is no prescribed form for a whistleblowing system to take, with the exception that (i) in terms of the Protected Disclosures Act, the system must be "appropriate"; and (ii) in terms of the Companies Act, where applicable, the system must allow for confidential submissions.
Which reports must be permitted?
A "disclosure" for purposes of the Protected Disclosures Act includes any information regarding the conduct of an employer, or of an employee or worker of an employer, which is made by an employee or worker who has reason to believe that the information concerned shows or tends to show one or more of the following (i) that a criminal offence has been committed, is being committed or is likely to be committed; (ii) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; (iii) that a miscarriage of justice has occurred, is occurring or is likely to occur; (iv) that the health or safety of an individual has been, is being or is likely to be endangered; (v) that the environment has been, is being or is likely to be damaged; (vi) unfair discrimination as contemplated in Chapter II of the Employment Equity Act, 1998, or the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 ("PEPUDA"); or (vii) that any matter referred to above has been, is being or is likely to be deliberately concealed.
The protections to reporters provided by the Companies Act apply to disclosures made where the reporter reasonably believes that the company has (i) contravened the Companies Act or the various laws listed in Schedule 4 of the Companies Act; (ii) failed to comply with any statutory obligation to which the company is subject; (iii) has engaged in conduct that has endangered, or was likely to endanger, the health or safety of any individual, or had harmed or was likely to harm the environment; (iv) unfairly discriminated, or condoned unfair discrimination, against any person, as contemplated in section 9 of the Constitution and PEPUDA; or (v) contravened any other legislation in a manner that could expose the company to an actual or contingent risk of liability, or is inherently prejudicial to the interests of the company.
Must anonymous reporting be guaranteed?
Neither the Protected Disclosures Act nor the Companies Act requires the anonymity of reports to be guaranteed. However, the Companies Act requires systems to allow confidential submissions.
Who must be able to provide information (only employees or also external third parties)?
The Protected Disclosure Act only protects "employees" and "workers" who make protected disclosures. The definition of a "worker" is broad and extends to independent contractors, consultants, agents, and others.
The Companies Act contemplates specific categories of persons, including (i) shareholders; (ii) directors; (iii) company secretaries; (iv) prescribed officers; (v) employees; (vi) registered trade unions representing employees of the company or other representatives of the employees of the company; (vii) suppliers of goods or services to the company, or employees of such a supplier.
Can companies rely on one centralized hotline or is it necessary to have one hotline for each subsidiary?
Neither the Protected Disclosures Act nor the Companies Act provide for a specific exemption from compliance with the obligations described above in the case of subsidiaries. Subsidiaries, as separate juristic persons, will therefore have to comply with the Protected Disclosures Act and Companies Act to the extent that they are "employers" or "public companies." However, it is possible to implement one centralized hotline, which is utilized by various group companies, provided that it is implemented at the relevant subsidiary and accessible by all relevant persons.
Can a whistleblowing system also be operated by an external body (e.g. consultant)?
Yes.
Are sanctions imposed for failure to introduce a whistleblowing system?
The Companies and Intellectual Property Commission (the "Commission") may issue a compliance notice to companies where there is non-compliance with a provision of the Companies Act, including a failure to implement a whistleblowing system as required. If a company fails to comply with a compliance notice, the Commission may apply to court for the imposition of an administrative fine. The Companies Act makes it a criminal offense to fail to comply with a compliance notice; however, no person may be prosecuted for such an offense in respect of a particular compliance notice if the Commission has applied to a court for the imposition of an administrative fine in respect of that person's failure to comply with that notice.
The Protected Disclosures Act is silent on the consequences of non-compliance with the obligation to adopt appropriate internal procedures for receiving and dealing with information about improprieties.