DRAFT PROTECTED DISCLOSURES BILL - WORKPLACE IMPACT

Written by Dane Frost

Corruption, fraud, and workplace misconduct not only harm the individuals directly involved — they undermine businesses, erode public trust, and damage the South African economy as a whole. The people best placed to expose wrongdoing are often those closest to it: employees, contractors, and others who witness it first-hand. Yet, for decades, many of these individuals have stayed silent out of fear — fear of losing their jobs, being harassed, or facing legal action.

To address this, the Department of Justice and Constitutional Development has published the Protected Disclosures Bill, 2026 (the Bill) for public comment by 14 May 2026. If passed, it will replace the existing Protected Disclosures Act 2000, introducing far stronger protections for whistleblowers, clearer procedures, financial incentives for disclosers, and serious consequences for those who retaliate or obstruct the process.

What led to this Bill?

The existing Protected Disclosures Act of 2000 has been in place for over two decades, but experience — particularly lessons from the Zondo Commission of Inquiry into State Capture — revealed that it has significant gaps. Specifically, the Zondo Commission found that the current law:

• Does not provide a clear, step-by-step procedure for whistleblowers to follow;

• Does not sufficiently guarantee that disclosures will actually be protected;

• Offers no proactive physical protection to disclosers who may be at risk;

• Provides no financial incentives to encourage people to come forward; and

• Does not ensure disclosures reach bodies with the specialised skills needed to investigate them effectively.

In August 2025, the National Anti-Corruption Advisory Council (NACAC) reinforced these concerns in its final report to the President, recommending that government strengthen support for disclosers, prevent retaliation more actively, and explore mechanisms for incentivised disclosures.

The new Bill is the government's response — a comprehensive overhaul designed to make whistleblowing safer, clearer, and more effective.

What does the Bill aim to do?

The Bill has five core objectives:

• Provide clear procedures through which anyone — employees, contractors, volunteers, and even members of the public — can disclose information about improper conduct in both the public and private sectors.

• Protect disclosers and their families or close associates from occupational harm and other forms of retaliation.

• Introduce financial awards for disclosers whose information leads to a conviction.

• Ensure that disclosures are properly managed and investigated by appropriate authorities.

• Create a formal complaints mechanism for disclosers who experience retaliation or whose confidentiality is breached.

Who does the Bill apply to?

Disclosers: Broader Than You Think

One of the most significant changes in this Bill is the expanded definition of who qualifies as a 'discloser.' Under the current law, protection is largely limited to employees. The new Bill extends protection to:

• Full-time, part-time, temporary, and contractual employees;

• Independent contractors, consultants, and agents;

• Volunteers and trainees;

• Workers placed through labour brokers or temporary employment services; and

• Any other person who is not necessarily an employee but who makes a disclosure about improper conduct.

In short, if you witness wrongdoing in a workplace — whether you are on the payroll or not — this Bill is likely to apply to you.

Employers: Both Public and Private Sector

The Bill applies equally to employers in the public sector (government departments, municipalities, public entities) and the private sector (companies, close corporations, NGOs, and any other business). This means no workplace is exempt.

What Counts as 'Improper Conduct'?

The Bill defines improper conduct broadly. A disclosure can be made about:

• Any unlawful activity, including organised crime or corruption;

• Criminal offences that have been committed, are being committed, or are likely to be committed;

• Failure to comply with a legal obligation;

• Miscarriages of justice;

• Threats to the health, safety, or environment of individuals;

• Unfair discrimination in the workplace; and

• The deliberate concealment of any of the above.

Importantly, this applies regardless of whether the conduct took place in South Africa or in another country, and regardless of which country's law governs the conduct.

How can a disclosure be made?

The Bill establishes a clear hierarchy of authorised recipients for disclosures. A disclosure is protected when it is made to one of the following:

1. The Employer

The first port of call is usually the employer. Every employer is required to develop internal procedures for receiving and dealing with disclosures. These procedures must include the name and contact details of a designated officer, time frames for investigation, and mechanisms to protect the identity of the discloser.

2. A Legal Practitioner or Legal Adviser

A disclosure made to an attorney or legal adviser while obtaining legal advice is protected. Notably, the legal practitioner themselves cannot then disclose that information — it is protected by legal privilege.

3. A Member of Cabinet, Executive Council, or Municipal Council

If the employer is a government-appointed individual or a public body, a disclosure can be made directly to the relevant Cabinet member, MEC, or councillor responsible for that body.

4. Designated Oversight Bodies

Disclosures can be made to a range of oversight institutions, including:

• The Public Protector;

• The South African Human Rights Commission;

• The Commission for Gender Equality;

• The Public Service Commission;

• The Auditor-General; and

• Any other body designated in national legislation that is competent to deal with the relevant type of misconduct.

5. Any Other Person or Body — With Conditions

In exceptional circumstances, a disclosure can be made to any person or body — including the media or the general public — provided that the discloser reasonably believes the information is substantially true, is not seeking personal gain, and at least one of the following conditions applies:

• The discloser reasonably fears retaliation if they go to their employer;

• There is reason to believe evidence may be concealed or destroyed;

• A prior disclosure was made, but no action was taken within a reasonable time; or

• The improper conduct is of an exceptionally serious nature — such as an imminent threat to life, public safety, or irreversible damage to property.

Anonymous Disclosures: The Bill explicitly allows disclosures to be made anonymously when reporting to an authorised person other than the employer. This is an important protection for those who fear identification.

What happens after a disclosure is made?

The Bill imposes strict timelines and duties on authorised persons who receive a disclosure:

• Acknowledgement within 5 days: The authorised person must acknowledge receipt of the disclosure in writing within five days.

• Preliminary investigation within 5 days: A preliminary review must be conducted to determine whether the disclosure qualifies as a protected disclosure.

• Decision within 10 days: The authorised person must decide whether to investigate the disclosure themselves or refer it to another body, and must inform the discloser in writing.

• Investigation completed within 12 months: The full investigation must be concluded within 12 months, with a possible single extension of up to 6 months (which requires approval from the Retired Judge — see below).

• Progress updates every 3 months: Disclosers must be kept informed of the progress of the investigation at least once every three months.

If, during an investigation, evidence appears likely to be destroyed or a witness is being pressured, the authorised person must apply to the court for an urgent preservation or protection order.

Upon completing the investigation, the authorised person must prepare a written report with findings and recommendations, which is shared with the discloser and the relevant employer or person against whom the disclosure was made.

Financial awards for disclosures

In a significant departure from the current law, the Bill introduces a financial award mechanism. Where a court convicts an employer of improper conduct and imposes a monetary sanction, the court may order that up to one quarter (25%) of that sanction be awarded to the discloser whose evidence led to the conviction.

Important Exclusions: Public servants, accomplices, those disclosing as part of a plea agreement, and law enforcement officials acting in the course of their duties are not eligible for these financial awards.

Where multiple disclosers contributed to the same conviction, the court may divide the award equitably between them according to their respective contributions.

How are disclosures protected?

Confidentiality

An authorised person is strictly prohibited from disclosing the identity of a discloser, or any information that could lead to the identification of the discloser, without the discloser's written consent. Courts are empowered to order that proceedings involving a discloser be held in camera (privately), and that any court documents that could identify the discloser be redacted.

Breaching a discloser's confidentiality is a criminal offence, punishable by up to 10 years' imprisonment or a fine, or both.

Protection from Occupational Detriment

No employee may be subjected to any occupational detriment on account of having made a protected disclosure. 'Occupational detriment' is defined broadly and includes:

• Disciplinary action, dismissal, suspension, or demotion;

• Harassment, intimidation, or emotional and psychological trauma;

• Forced transfer or refusal of promotion;

• Adverse employment references;

• Denial of appointment to a position; and

• Any other adverse effect on employment, including threats of any of the above.

Protection from Detrimental Action

Going beyond the employment relationship, the Bill also protects disclosers and their related persons (family members, household members, close associates, and colleagues who assist the discloser) from any form of detrimental action. This includes unfair discrimination, threats to legal rights, intimidation, harassment, and personal harm.

Reversal of the Evidential Burden

In a powerful shift of legal responsibility, the Bill provides that in any proceedings involving alleged occupational detriment or detrimental action, the burden of proof shifts to the employer (or person alleged to have taken the action) to show that the action was not taken in retaliation for the disclosure. The discloser only needs to show that they made a protected disclosure and suffered a detriment.

Witness Protection

The provisions of the Witness Protection Act, 1998, apply to disclosers and related persons, meaning they may be placed under formal protection if their safety is at risk.

Legal Assistance

Where a discloser cannot afford legal representation in proceedings before a court or tribunal, the court must refer the matter to Legal Aid South Africa, which must provide representation without delay or evaluation.

What are the risks for Employers?

This is where South African businesses — large and small, public and private — need to pay very close attention. The Bill creates substantial legal and financial exposure for employers who fail to comply.

Criminal Liability for Retaliation

Any person who subjects a discloser or a related person to occupational detriment or detrimental action in breach of the Bill commits a criminal offence. The penalty is up to 15 years' imprisonment, a fine, or both. This penalty applies not only to the individual who takes the retaliatory action, but also to anyone who incites, authorises, or knowingly permits another person to do so.

Joint and Several Liability

Where an employer, or a person acting with the employer's knowledge or authority, subjects a discloser to harm, the employer, that person, and any client of the employer are jointly and severally liable. This means each of them can be held responsible for the full amount of any damages awarded.

Automatic Unfair Dismissal

Any dismissal in breach of the Bill's protections is deemed to be an automatically unfair dismissal under section 187 of the Labour Relations Act, 1995. This is the most serious category of dismissal under South African labour law, and it carries the possibility of maximum compensation awards.

Unfair Labour Practice

Any other occupational detriment (short of dismissal) will be treated as an unfair labour practice, which the discloser may refer for conciliation and, if unresolved, to the Labour Court for adjudication.

Concealing Evidence During an Investigation

An authorised person — including an employer — who conceals or suppresses evidence during an investigation into a protected disclosure commits a criminal offence, punishable by up to 15 years' imprisonment, a fine, or both.

Criminal Liability for Confidentiality Breaches

As noted above, disclosing a discloser's identity in contravention of the Act carries a penalty of up to 10 years' imprisonment or a fine, or both.

Offence / Risk	Maximum Penalty
Retaliation against a discloser or related person	15 years' imprisonment and/or fine
Concealing or suppressing evidence during an investigation	15 years' imprisonment and/or fine
Disclosing a discloser's identity without consent	10 years' imprisonment and/or fine
Dismissal of a discloser	Automatically unfair dismissal (Labour Relations Act)
Other occupational detriment (short of dismissal)	Unfair labour practice — Labour Court adjudication
Refusing to comply with the retired judge's information request	2 years' imprisonment and/or fine
Interfering with the retired judge's functions	2 years' imprisonment and/or fine
Disclosing false information with the intent to harm	2 years' imprisonment and/or fine

What must Employers do to comply if this bill passes?

The Bill does not only punish bad behaviour — it also imposes positive obligations on employers. To avoid liability, every employer must:

• Develop and implement internal procedures for receiving and dealing with disclosures, including time frames and referral protocols;

• Take reasonable steps to bring these procedures to the attention of every employee;

• Appoint a designated officer to receive and act upon disclosures;

• Include in their procedures: mechanisms for anonymous reporting, provisions to refer criminal matters to the South African Police Service, and a process to inform disclosers of investigation outcomes;

• Register on the central database maintained by the Director-General of the Department of Justice; and

• If they have a website, publish information about what constitutes a protected disclosure, how to make one, contact details, available remedies, and confidentiality conditions.

Practical Advice for Employers: Start reviewing your existing whistleblower policy now. If you do not have one, you will need one. Ensure your HR, legal, and management teams understand the new obligations and the serious consequences of non-compliance.

The complaints mechanism: The retired judge

One of the more innovative features of the Bill is the appointment of a retired judge, designated by the President in consultation with the Chief Justice, to oversee a formal complaints mechanism.

The retired judge can receive complaints from disclosers who:

• Honestly and reasonably believe they have been or are likely to be subjected to detrimental action in retaliation for a disclosure;

• Believe their identity or confidential information is about to be unlawfully disclosed; or

• Have had their protection revoked.

The retired judge also has the power to approve extensions of investigation time limits beyond 12 months.

The retired judge can investigate complaints, refer them to law enforcement agencies or Chapter 9 institutions, and must submit an annual report to the Minister. The judge has broad powers to access premises and demand information — and refusing to comply is a criminal offence.

Importantly, the retired judge's complaints process does not prevent a discloser from also pursuing civil action in a court of law.

When can protection be revoked?

Protection under the Bill is not unconditional. An authorised person may revoke a discloser's protection if it is found, during or after investigation, that the discloser:

• Participated in the improper conduct they disclosed after making the disclosure;

• Intentionally made a materially false statement in their disclosure;

• Made the disclosure solely or substantially to avoid dismissal or disciplinary action; or

• Committed an offence under the Act while making the disclosure or providing further information.

A discloser who is aggrieved by a revocation decision may lodge a complaint with the retired judge or approach a competent court. Importantly, protection continues during this process unless the judge or court orders otherwise.

Invitation for public comment

The Department of Justice and Constitutional Development is inviting all interested parties — businesses, employees, civil society organisations, legal professionals, and members of the public — to submit written comments on the Bill.

Deadline: Comments must be submitted on or before 14 May 2026.

Comments should be directed to Ms A van der Walt, using the following contact details:

Postal Address	The Director-General: Justice and Constitutional Development Private Bag X81, Pretoria, 0001
E-mail (Comments)	whistleblowingreforms@justice.gov.za
E-mail (Enquiries)	alvanderwalt@justice.gov.za

A New Era for Whistleblowing in South Africa

The Protected Disclosures Bill, 2026, represents a fundamental shift in how South Africa approaches whistleblowing. It moves from a passive framework that offered limited protection to an active, comprehensive system that:

• Empowers a wider range of people to speak up safely;

• Holds employers criminally and financially accountable for retaliation;

• Creates real financial incentives for disclosers;

• Establishes independent oversight through a retired judge; and

• Aligns South Africa with international best practice in anti-corruption law.

For employers, the message is clear: build a culture of transparency, put proper procedures in place, and treat disclosers with respect and protection. The legal and reputational consequences of failing to do so are substantial — and under this new Bill, they are also criminal.

For employees and other potential disclosers, the message is equally clear: the law is being strengthened to protect. If wrongdoing is witnessed in a workplace, there are procedures, protections, and now even financial incentives available to support coming forward.

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