A critical analysis of the State Capture Commission recommendations to protect whistleblowers in South Africa

Abstract

This article critically analyses the whistleblower recommendations of the State Capture Commission and the President of the Republic of South Africa’s response to implementing these recommendations. Three recommendations are made: ensuring that whistleblowers receive the protections afforded by art 32(2) of the United Nations Convention against Corruption; possibly awarding whistleblowers a proportion of funds recovered, provided the information disclosed has been material to recovering funds; and affording whistleblowers immunity from criminal or civil action arising from their honest disclosures. This article argues that, although these whistleblower recommendations are laudable and will both protect and incentivise whistleblowers to disclose wrongdoing, South Africa should have a consolidated legislative framework to govern whistleblowing in the various sectors rather than the current approach, which scatters the regulation of whistleblowing across many statutes. The article recommends enhancing the protection of whistleblowers and suggests how to structure South Africa’s whistleblower award programme so that it is clear, fair, transparent and efficient. It also argues that to avoid abuse, whistleblowers should not receive blanket immunity from criminal and civil proceedings but that this should be determined on a case-by-case basis.