Babita Deokaran. Marius van der Merwe. Eric Phenya. Pamela Mabini. Mpho Mafole. And now Martha Mani Rantsofu. The targeted murders of these individuals have intensified calls for stronger legislation to protect whistleblowers and Parliament has finally responded.
The government has published the Protected Disclosures Bill, 2026 (the Bill) for public comment. The Bill intends to repeal the existing Protected Disclosures Act 26 of 2000 (PDA), which has always been, at its core, employment legislation.
Expanding the net
The Bill’s most significant improvement is its expanded scope. Unlike the PDA, the Bill now extends protection to contractors, consultants, volunteers, trainees and family members of whistleblowers. This is a substantial departure from the employment-centred PDA.
In Tshishonga vs Minister of Justice and Constitutional Development, the labour court held that the dangers of the PDA’s narrow approach left whistleblowers inadequately protected and ill-equipped to meaningfully fight crime. The Bill directly addresses this shortcoming.
The Bill extends witness protection to disclosers and related persons through the Witness Protection Act 112 of 1998. This is vital, as the Witness Protection Act will provide an additional robust layer of protection for whistleblowers.
Criminal consequences and monetary incentives
The Bill introduces noteworthy criminal sanctions, including up to 15 years’ imprisonment for retaliation against whistleblowers or suppression of evidence, and up to 10 years for leaking a whistleblower’s identity. These penalties signal genuine, decisive action against those who punish whistleblowers for doing the right thing.
It also introduces financial incentives, permitting awards of up to 25% of any court-imposed sanction following conviction. These are counterbalanced by criminal liability of up to two years for intentional false disclosures causing harm.
Limitations and structural gaps
The Bill provides for legal assistance through Legal Aid South Africa for indigent whistleblowers. Although this is a commendable improvement, Legal Aid operates subject to a means test, in that applicants must demonstrate financial need below a prescribed threshold. This creates a practical problem. Many whistleblowers fall into “the missing middle”, earning in excess of the threshold to qualify for Legal Aid but not enough to afford private legal counsel. Reconsideration is necessary.
Despite its 33 clauses, the Bill makes no provision for psychological support, counselling or trauma services for whistleblowers or related persons. It establishes a centralised electronic database for disclosures, which, while efficient in design, raises cybersecurity concerns in a digital and AI-driven environment under clause 3. Clause 11 provides for disclosures to authorised persons other than employers but fails to prescribe qualification, independence or oversight requirements for such persons, leaving a key institutional safeguard underdeveloped.
The way forward
The Bill is progressive, but the consultation period should be used to push for better legal aid access, stronger independent support structures, robust data security, additional support measures and pre-emptive protections.
Now is the time to close the gap by providing comments to Parliament to effect the necessary amendments before the consultation period closes on 14 May 2026.
Rupert Candy and John Makate are with Rupert Candy Attorneys Incorporated, Johannesburg and Cape Town.
The new whistleblower Bill is progressive but the consultation period (which closes on 14 May 2024) should be used to push for improved legal aid access, stronger independent support structures, robust data security, additional support measures and pre-emptive protections
