Although the Draft Protected Disclosures Bill promises stronger protection in future, it may still take several years before it becomes law. Fortunately, South African law already provides remedies for whistleblowers who suffer retaliation. Broadly speaking, the law recognises three different types of remedies. First, a whistleblower may recover the actual financial losses caused by retaliation. Second, they may claim compensation for injury to their dignity, reputational damage and emotional suffering. Third, they may claim compensation for occupational detriment, including unfair dismissals. A whistleblower is not limited to a singular remedy and may claim for a combination of the aforementioned.
The difficulty is that many whistleblowers are unaware of what they can claim for, or they mistakenly believe that compensation is limited to an unfair dismissal claim.
Recovering actual financial losses
One of the most immediate consequences of retaliation is often financial loss. While losing a job is perhaps the most obvious example, the financial impact on a whistleblower is rarely limited to a lost income. Retirement contributions stop, medical aid may lapse, bonuses disappear and finding comparable employment can take years. In more serious cases, retaliation may force a whistleblower to relocate for their own safety, pay for temporary accommodation, install additional security measures at home, replace damaged property or incur substantial medical expenses. Many whistleblowers also require ongoing psychological treatment to deal with the trauma, anxiety or depression that frequently accompanies retaliation. International organisations increasingly recognise that the personal cost of whistleblowing extends well beyond employment and may include financial, physical and psychological harms.
South African law allows a whistleblower, in appropriate circumstances, to claim compensation for these actual financial losses. The objective is straightforward: to place the whistleblower, as far as reasonably achievable, in the financial position that they would have likely occupied had the retaliation never occurred.
This means that the claim is not limited to lost income. Depending on the circumstances and available evidence, it may include lost future earnings and employment benefits, medical and psychological treatment, relocation expenses, temporary accommodation, security costs, repairs to damaged property and other financial losses that can be shown to have resulted directly from the retaliation.
Unlike compensation for unfair dismissal, there is no predetermined statutory ceiling on the amount that may be claimed. The whistleblower must, however, prove both the existence of the financial loss and that it was indeed caused by the retaliation in question.
Compensation for injury to dignity and emotional suffering
Many whistleblowers experience personal harm that cannot be measured by an invoice alone. Retaliation often includes false disciplinary charges, attacks on professional reputation, public humiliation, intimidation and sustained efforts to undermine a whistleblowerâs credibility. The emotional and psychological consequences frequently affect family life, mental health and future career prospects.
In this vein, South African common law recognises that some forms of harm cannot be measured purely in financial terms. It therefore allows compensation for infringements of a personâs dignity and broader personal interests, independently of any actual financial loss. It includes harm to a personâs sense of self-worth, honour and identity, as well as interferences with privacy.
Where a whistleblower is falsely portrayed as dishonest, incompetent or disloyal, or where their integrity is deliberately called into question in an effort to discredit their disclosure, their intrinsic character is unfairly attacked. The law recognises this as a legally protected interest, and a whistleblower may therefore institute a claim in such a case.
Loss of privacy may also form part of the harm suffered. Consider, for example, a whistleblower who is publicly escorted from the workplace by security, has their office searched in full view of colleagues, or whose disciplinary proceedings are deliberately conducted in a manner calculated to maximise embarrassment. Although these actions may not directly reduce a personâs salary, they can cause lasting harm to their dignity, identity and emotional wellbeing.
Moreover, credit records are one of the most valuable aspects of a personâs financial identity in the modern world. A prolonged loss of income may further result in mounting debt, or defaults on financial obligations. This means the whistleblower may experience a deteriorating credit record, making it more difficult to obtain housing, finance or future employment. The spillover, herein, is not merely of a financial nature since it also directly affects the whistleblowerâs social wellbeing.
Compensation for unfair dismissal
In the workplace, a whistleblower may be subjected to disciplinary action, suspended, demoted, transferred to an undesirable position, overlooked for promotion, denied training opportunities, intimidated in the working environment or otherwise treated unfairly because they made a protected disclosure. The Labour Relations Act, read with the Public Disclosures Act, recognises these forms of occupational detriment and provides remedies where they are linked to whistleblowing.
Where retaliation ultimately results in dismissal, the dismissal may be regarded as automatically unfair. In such cases, a court may order reinstatement, re-employment or compensation, depending on what is just and equitable in the circumstances. Compensation for an automatically unfair dismissal is currently capped at a maximum of 24 monthsâ remuneration. By comparison, compensation for an ordinary unfair dismissal is limited to 12 monthsâ remuneration.
Where the retaliation falls short of dismissal, a whistleblower may still have remedies for being subjected to unfair labour practice. These remedies may include, depending on the circumstances, correcting an unfair suspension, reversing an unfair demotion, addressing unfair conduct relating to promotion or benefits, or other forms of workplace prejudice suffered because of the protected disclosure.
The practical reality
While these remedies provide important legal protection, obtaining them is rarely straightforward.
Most whistleblowers must embark on lengthy and expensive litigation before obtaining meaningful relief. Depending on the complexity of the matter, legal costs may range from about R185,000 to well over R1-million. Litigation frequently continues for several years before a final outcome is reached.
Our experience shows that whistleblower-related litigation commonly takes about five years before meaningful legal relief is obtained. In some instances, the process has taken considerably longer. In the well-known Bloem matter, legal relief was only achieved after about 14 years and proceedings before multiple institutions, including the Labour Court, the Provincial Legislature, the Public Protector, national government and the high court.
The financial and emotional burden of such litigation should not be underestimated. Organisations accused of wrongdoing often have access to substantial financial resources, experienced legal teams and specialist advisers. Whistleblowers, by contrast, are frequently unemployed, financially vulnerable and attempting to navigate complex legal proceedings at the very moment their income has disappeared.
This reality makes early access to competent legal advice particularly important.
Looking ahead
For many whistleblowers, legal protection arrives only after years of litigation, long after they have lost their income, exhausted their savings, accumulated debt and suffered irreparable damage to their careers and personal lives. A legal victory obtained five or 10 years after the retaliation began may provide recognition and compensation, but it seldom restores the life that was lost in the meantime.
This raises a more important question for the future of whistleblower protection in South Africa. Rather than asking whether additional remedies should be created, policymakers should consider how existing remedies can be made accessible sooner. Greater attention should be given to faster dispute resolution, effective interim relief, early financial support, along with mechanisms that prevent retaliation from destroying a whistleblowerâs livelihood while legal proceedings are under way.
Ultimately, protecting whistleblowers is not simply about providing remedies after the damage has been done. It is about ensuring that those remedies are accessible quickly enough to prevent that damage from becoming irreversible. DM
Dr Ugljesa Radulovic is a senior postdoctoral research fellow in the Department of Sociology, University of Johannesburg. Dr Johandri Wright is a postdoctoral research fellow at the Dullah Omar Institute, University of the Western Cape.