In the recent case of Potgieter v Tubaste Ferrochrome and Others (JA71/12)  ZALAC 32 (Potgieter case), a disgruntled former employee of Tubaste Ferrochrome released a report to the media in which the employee alleged that his employer did not have adequate measures in place to address the water pollution that its operations had caused.
At the time, the employee and his employer were involved in an unfair dismissal dispute. Although the Potgieter case centred on a dismissal dispute, the court made several significant statements regarding whistleblower protection in terms of section 31 of the National Environmental Management Act No. 107 of 1998 (NEMA).
- The court held that the fostering of a culture of disclosure of information is a constitutional imperative which, in terms of the whistleblower protections offered in NEMA, is in the public interest and in the interest of protecting the environment.
- The employee argued that the disclosure of information was not as a result of his dismissal, but that he was acting in the public interest by disclosing the environmental degradation and possible offences caused by his employer. The court held that due to the possible liability which could be imposed on an employee for environmental offences caused by an employer, even after employment is terminated, and the fact that the disclosure was made in the public interest, the employee had acted in good faith.
- The court accepted that an organisation may suffer reputational damage as a result of disclosure of sensitive information, but that public interest may, in certain instances, outweigh the interests of protecting the reputation of an organisation.
Practical implications of the Potgieter case:
- Privileged information: the mere fact that information is sensitive does not preclude it from being a protected disclosure in terms of the Protected Disclosures Act, No. 26 of 2000 (PDA), or NEMA. Where information is not protected by legal privilege i.e. attorney-client privilege it may be disclosed, and such disclosure will be protected, provided that certain requirements are met. Importantly, where it can be proved that the information was disclosed in the public interest, the disclosure may be protected.
- Protection of employees: clear policies, procedures (see Category 3 below) and training should be implemented by employers to ensure that employees are aware of whistleblower protections and what information would constitute a protected disclosure. This is especially so where an employee is disclosing information which he or she believes relates to an environmental risk. This will ensure that employees are aware of the implications of a disclosure and whether the disclosure will be protected. Such policies and procedures also mitigate risk to an employer, as many disclosures are first required to be made to an employer in terms of the PDA, in order to allow the employer to remedy a situation, before a disclosure is deemed to be protected.
- Extension of protection afforded to whistleblowers: in the 2014 budget speech of The Minister of Justice and Correctional Services on 15 July 2014, it was indicated that the protection afforded to whistleblowers is likely to be extended in the future and legislative amendments to the PDA are currently being drafted.
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