This article provides a practical overview of the Protected Disclosures Act 26 of 2000 (“PDA”), with particular focus on how it interacts with the Labour Relations Act 66 of 1995 (“LRA”) to protect employees who disclose wrongdoing in the workplace. It explains what constitutes a protected disclosure, the scope of protection afforded to whistle-blowers, and the remedies available where retaliation occurs.
Background and Purpose of the Protected Disclosures Act
The preamble to the PDA recognises that criminal conduct and other serious irregularities occur within both public and private institutions. Such conduct undermines effective, accountable, and transparent governance and may result in significant social and economic harm.
The PDA was enacted to address this reality by encouraging the disclosure of wrongdoing, while simultaneously protecting employees who speak out from retaliation. In doing so, the Act seeks to promote ethical conduct, accountability, and good governance in the workplace.
Importantly, the PDA places reciprocal obligations on both employees and employers. Employees are encouraged to disclose unlawful or irregular conduct, while employers are required to take all reasonable steps to ensure that employees are not subjected to any form of detriment as a result of making a disclosure.
The overarching objective of the PDA is therefore to create a regulated and responsible whistle-blowing framework, supported by clear statutory safeguards.
What Constitutes a Protected Disclosure?
For a disclosure to attract protection under the PDA, it must meet the statutory definition of a “disclosure” as set out in section 1 of the Act.
A disclosure refers to the disclosure of information by an employee regarding the conduct of an employer or another employee, which shows or tends to show that:
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a criminal offence has been committed, is being committed, or is likely to be committed;
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a person has failed, is failing, or is likely to fail to comply with a legal obligation;
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a miscarriage of justice has occurred, is occurring, or is likely to occur;
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the health or safety of an individual has been endangered or is likely to be endangered;
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the environment has been, is being, or is likely to be damaged;
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unfair discrimination is taking place, as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; or
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any of the above has been, is being, or is likely to be deliberately concealed.
A protected disclosure is not limited to disclosures made internally to an employer. The PDA expressly recognises disclosures made to, among others, a legal adviser, a Cabinet member, the Public Protector, a regulatory body, the South African Police Service, or—in certain circumstances—the media.
Section 3 of the PDA provides that no employee may be subjected to any occupational detriment on account, or partly on account, of having made a protected disclosure.
Occupational Detriment and Retaliation
The PDA adopts a broad definition of “occupational detriment”. It includes, but is not limited to:
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disciplinary action;
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dismissal;
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suspension, demotion, or harassment;
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intimidation;
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transfer against the employee’s will;
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refusal of promotion or transfer; or
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any other adverse treatment affecting the employee’s employment, profession, office, work security, or future employment opportunities.
This wide formulation is deliberate and reflects the legislature’s intention to provide robust protection against both overt and subtle forms of retaliation.
Judicial Interpretation and Application
South African courts have consistently confirmed that the PDA does not require disclosures to be factually correct in order to qualify for protection. What is required is that the disclosure be made in good faith and that the employee reasonably believes the information disclosed to be substantially true. Disclosures made for personal gain fall outside the protection of the Act.
In Chowan v Associated Motor Holdings (Pty) Ltd and Others 2018 (4) SA 145 (GJ), the court held that the employee’s subjective belief that she was being unfairly discriminated against was reasonable for purposes of the PDA. Because the disclosure was made in good faith, it constituted a protected disclosure, notwithstanding disputes about the underlying facts.
Similarly, in Lou-Anndree John v Afrox Oxygen Limited (JA90/15) [2018] ZALAC, the Labour Appeal Court reaffirmed that the test is not whether the information itself is objectively correct, but whether the employee’s belief in its truth is reasonable. The court cautioned that requiring employees to prove the accuracy of their disclosures would impose an unduly high threshold and undermine the purpose of the PDA.
These decisions underscore that the PDA is designed to encourage disclosures, not to deter them through unrealistic evidentiary burdens.
Remedies Available to Employees
Section 4 of the PDA provides that an employee who has been subjected to, is being subjected to, or may be subjected to an occupational detriment as a result of a protected disclosure may approach any court with jurisdiction, including the Labour Court, for appropriate relief.
The LRA further strengthens these protections. A dismissal arising from a protected disclosure is deemed to be an automatically unfair dismissal, exposing the employer to significant compensation and reinstatement risks. Any other occupational detriment linked to a protected disclosure constitutes an unfair labour practice.
Conclusion
The PDA plays a critical role in fostering a culture of accountability and transparency in South African workplaces. It recognises that whistle-blowers perform an essential public and corporate function and deserve meaningful protection when they act responsibly and in good faith.
Employers should proactively implement protected disclosure policies, establish clear reporting channels, and train management and staff on their rights and obligations under the PDA and the LRA. Doing so not only mitigates legal risk but also promotes ethical conduct and organisational integrity.
A workplace that protects whistle-blowers is one that actively invests in good governance, trust, and long-term sustainability.
How O’Reilly Law Can Assist
Navigating a protected disclosure requires careful legal strategy. While the PDA is designed to protect whistle-blowers, disclosures that are poorly framed, improperly escalated, or made without legal guidance can expose employees to unnecessary risk. Equally, employers who mishandle disclosures face significant legal, reputational, and financial consequences.
O’Reilly Law advises both employees and employers on protected disclosures and workplace retaliation matters, with a particular focus on complex, high-risk scenarios involving senior employees, regulated entities, and governance failures. Our approach is pragmatic, strategic, and firmly grounded in labour and corporate law principles.
For employees, we provide confidential advice on whether a disclosure qualifies for protection, how and to whom it should be made, and how to respond if retaliation occurs. For employers, we assist with the implementation of compliant whistle-blowing policies, internal investigation frameworks, and the lawful management of disclosures to minimise exposure under the PDA and the LRA.
Speak to a Labour and Corporate Law Specialist
If you are considering making a protected disclosure—or if you are an employer dealing with a whistle-blowing complaint—it is essential to obtain advice early.
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Our team is available to provide discreet, strategic advice and representation in protected disclosure, unfair dismissal, and unfair labour practice matters.