Reform on the Horizon: Whistleblowers Afforded More Protection

“When people are silent, and where people are silenced, the consequences are very dangerous.” – Rabbi Gideon Pogrund, Founding director of the Centre for Business Ethics at the University of Pretoria

On 29 June 2023, a discussion document proposing reforms for the whisteblower protection regime in South Africa was published. The purpose of the document is to:

  1. expand the scope of the Protected Disclosures Act 26 of 2000 (“PDA“) to encompass a wider range of relationships;
  2. ensure that adequate resources and support are given to whistleblowers; and
  3. afford the Human Rights Commission with the authority to address protected disclosures.\

The discussion document was produced following a detailed analysis of the approach to whistleblowing in a number of jurisdictions, a summary of which is set out below.


The laws which regulate whistleblowers in the United States of America are extensive and provide key protections and incentives including confidentiality assurances, financial reward and independent reporting channels. This approach ensures that whistleblowers believe they are empowered and safe.

In the United Kingdom, the Public Interest Disclosure Act does not include a reward or incentive provision due to, amongst others, the legal costs associated with the system and the view that incentives will not achieve an open reporting culture and may result in trivial issues being reported.

The Public Servant’s Disclosure Protection Act only extends to public servants in Canada and, as a result, Canada has faced challenges relating to the insufficient protection of other categories of whistleblowers from significant financial, professional, and health-related consequences.

Whilst New Zealand‘s Protected Disclosures Act focuses only on the employer-employee relationship, the scope of protection extends to volunteer workers, homeworkers, defence force members and former employees.

In Australia (Victoria) the Protected Disclosure Act affords varied measures of protection to all sectors of society, including confidentiality of the whistleblower’s identity, immunity from liability in respect of civil, criminal and disciplinary action, and protection from defamation, damages and the imposition of penalties.

The Whistleblower Protection Act is the governing piece of legislation in Namibia. The protections offered to individuals extend beyond the employment relationship and provision is made for anonymous disclosures as well as rewards. Whistleblowers are also protected from any detrimental action taken against them, including harassment, harm to persons or property, intimidation, or negative employment consequences.

In Uganda, the Whistleblower’s Protection Act affords protection to any person who makes a disclosure of impropriety under the relevant legislation. Provision is also made for rewards of 5% of the net liquidated sum of money recovered based on that disclosure.

Tanzania is governed by the Whisteblower and Witness Protect Act which requires disclosures to be made to a competent authority, who is not permitted to disclose the whistleblower’s identity. Disclosures will not be protected where they are likely to cause prejudice to, amongst others Tanzania’s sovereignty and integrity.

The Whisteblower Act, which is applicable in Ghana, provides that protected disclosures are required to be made in good faith and with reasonable cause. Provision is also made for the establishment of a fund to reward whistleblowers.

Kenya has not yet enacted whistleblower legislation but recently introduced the Whistleblower Protection Bill which similarly proposes that a fund be established to provide financial support to whistleblowers.


The following amendments have been proposed:

  • replace the definition of “occupational detriment” with “detrimental action” in order to extend the nature and scope of the relationship beyond that of employer-employee;
  • shift the burden of proof from the whistleblower to those responsible for the detrimental action;
  • reduce the investigation completion time to 3 months;
  • require the employer to pay the employee’s interim legal costs in respect of a claim for detrimental action; and.
  • hold those institutions and individuals which do not take action when disclosures are made accountable in the form of imprisonment or a fine.

The following new provisions have been proposed:

  • identity of the whistleblower must be kept confidential unless consent is provided or exposing their identity is essential for an effective investigation or to prevent a serious risk;
  • persons that use force, coercion, threats or intimidation to deter disclosure commit an offence;
  • persons that become aware of a disclosure and fail to act commit an offence;
  • render any agreement that aims to contract out of the PDA as being unlawful;
  • permit anonymous oral or written disclosures;
  • provide legal assistance to whistleblowers;
  • create a fund to assist whistleblowers;
  • provide for the appointment of a “whisteblower champion” who oversees the entity’s policies;
  • empower the Human Rights Commission to attend to complaints relating to detrimental action; and
  • offer state protection to whistleblowers and their families where their lives or property are endangered.

The public has until 15 August 2023 to comment on the proposed reforms to the PDA. Comments must be emailed to

Authors: Jacqui Reed and Chelsea Richard.

Jacqui Reed
Jacqui Reed
Senior Associate
+27 10 500 2648

Legal Gaslighting – SLAPP-ing back at abusive process

In a case involving former President of the Republic of South Africa Jacob Zuma, journalist Karyn Maughan, and a Senior State Advocate of the National Prosecuting Authority William Downer SC, the High Court has delivered a resolute judgement condemning the abuse of legal procedures, and the utilisation of “SLAPP” lawsuits as a means to stifle freedom of the press.

Strategic Litigation Against Public Participation, commonly known as “SLAPP suits,” are often used to intimidate or silence individuals who speak out on matters of public interest. The main objective is to burden the defendant with the costs, time, and stress of litigation, thereby discouraging them from pursuing critical or investigative activities.

In an effort to address the apparent unfairness presented in suits of this nature, a specific legal defence, initially introduced by the courts of the United States and Canada, has recently been recognised as forming part of South African law. In the USA and Canada, SLAPP defences are frequently raised in response to defamation claims, malicious prosecution, or liability cases.

While South African courts have previously acknowledged the existence of this defence, its practical application requires further development. In the case of Maughan v Zuma and Others (“Maughan”), the court further elaborated on the defence in South African law and confirmed that it can be raised as a defence whenever appropriate and not only limited to defamation cases.

Karyn Maughan, a seasoned journalist who has been reporting on Zuma’s ongoing criminal investigation for several years, became the most recent target of a SLAPP suit. Maughan’s reporting on Zuma included references to documents concerning his health, and he alleged that Senior State Advocate Downer had leaked a letter marked “Medical Confidential” to Maughan. Maughan argued that since the letter was included in the court bundle, it formed part of the court record, and was, therefore, a “public document” and could be reported on.

The court concluded that Zuma’s private prosecution of Maughan exhibited all the characteristics of a SLAPP suit because:

  • It related to her journalistic obligations to report on matters of public interest.
  • It infringed upon her right to freedom of expression and the public’s right to access such information.
  • It aimed to intimidate, harass, and silence Maughan as its underlying motive.
  • It had poor prospects of success.

In the Maughan case, the court referred to several international examples in which courts acknowledged the need to protect journalists from SLAPP suits and emphasised that courts should safeguard against the misuse of their processes to maintain their integrity. This approach aligns with the provisions of section 16 of the Constitution, which guarantees freedom of expression, including freedom of the press and media.

The use of SLAPP suits as a means to suppress criticism and control public discourse is a growing global phenomenon. Media organisations, journalism associations, and human rights groups have acknowledged the detrimental impact of SLAPP suits on freedom of expression and the media. They have condemned the use of such suits as tools of intimidation and harassment, highlighting the “chilling effect” they have on investigative journalism and public accountability.

To counter the abuse of SLAPP suits, some jurisdictions have implemented anti-SLAPP legislation or legal mechanisms aimed at protecting individuals from frivolous or malicious lawsuits intended to stifle free speech. These laws often provide expedited procedures to dismiss SLAPP suits, shift the burden of proof onto the plaintiff, and allow for the awarding of attorney’s fees and damages to the defendants.

In South Africa, although there is no specific anti-SLAPP legislation, the Western Cape High Court recently dismissed a series of defamation lawsuits filed by the Australian mining company Mineral Commodities Ltd (“MRC”) and its local subsidiary against six environmental activists. The court deemed these lawsuits an abuse of the legal process, highlighting that SLAPP suits undermine fundamental principles of justice. This decision demonstrates that courts have the authority to protect defendants from this type of abusive litigation, even in the absence of explicit anti-SLAPP laws.

Efforts are also underway to raise awareness about SLAPP suits, educate journalists and activists about their rights, and advocate for stronger legal protections against such abusive litigation practices. Recognising SLAPP suits as a threat to free speech and public participation has prompted increased scrutiny and calls to safeguard the integrity of journalism and the fundamental right to express critical opinions.

Jonathan Ripley-Evans
Jonathan Ripley-Evans
+27 10 500 2690
Candice Grieve
Candice Grieve
Senior Associate
+27 10 500 2662
Alaika Alli
Alaika Alli
+27 10 500 2600

Strengthening Collaboration for Future African Success: HSF Hosts 2nd Annual Africa Relationship Law Firm Event

Despite challenging economic conditions, our HSF Africa practice has thrived, thanks to the dedication of over 200 partners in 22 offices who have advised on more than 970 matters over the past year. This success would not have been possible without our relationship firms spanning all 54 jurisdictions in Africa. To further enhance these partnerships, the Africa Group hosted its 2nd Annual Africa Relationship Law Firm event, 54Plus, which took place in Johannesburg, South Africa on May 11, 2023. The event brought together 35 African lawyers from 29 leading firms across 18 jurisdictions on the continent.

Joining the team on the ground in South Africa, which now boasts over 100 employees in the Johannesburg office, were co-heads of the Africa Practice, Nina Bowyer and Martin Kavanagh, Chair of the Africa Practice Peter Leon, Lead Territory Partner for the EMEA region Clement Dupoirier, Disputes Partner Charlie Morgan, and Territory Associate for Lusophone Africa Edgar Monteiro. Nina Bowyer emphasised the significance of the event, stating, “This event is crucial in fostering strong collaboration, building trust, and unlocking future opportunities.”

The event featured various sessions covering crucial topics such as Africa’s M&A Future, Crisis Management on the continent, panel discussions on ESG, and a thought-provoking talk by guest speaker and tech entrepreneur Rapelang Rabana. These sessions provided excellent opportunities for engagement, debate, and conversations centred on harnessing Africa’s potential through collaboration.

Partner, Charlie Morgan acclaimed, “The packed schedule included hot topics and dynamic discussions, which continued well into the evening with a fantastic group of clients.”

Ferdinand D. Adadzi from AB & David in Ghana commended the event, saying, “This is one of the most well-organised and informative relationship conferences I’ve attended. The sessions were well-timed, the content was valuable, and the discussions were engaging. Additionally, it provided the opportunity to network not only with lawyers from different jurisdictions but also to meet some of our clients.”

The event culminated with the annual Johannesburg client party held at the spectacular venue, Marble. The party attracted over 100 local and international clients. Abi Odeinde from Olaniwun Ajayi in Nigeria expressed his delight, stating, “It was wonderful to meet and connect with such a remarkable group of professionals and experts in their field.” Another attendee remarked, “While many international firms organise African relationship events, what sets yours apart is the exceptional content quality and the collaborative atmosphere. I genuinely feel like I am among friends, working together towards a shared goal.”

These two events provided an excellent platform to strengthen existing relationships, establish new connections, and, most importantly, drive future African success. Many attendees expressed their enthusiasm about returning for the third event, emphasising their anticipation for continued collaboration.

The Africa Relationship Law Firm event showcased the commitment to collaboration and partnership that underpins the success of our Africa practice. The event’s engaging sessions, enthusiastic participants, and positive feedback underscored the significance of fostering strong relationships and working together to unlock Africa’s vast potential. As we look towards the future, HSF remains dedicated to building on these connections and driving further achievements for African success.

Nina Bowyer
Nina Bowyer
Managing Partner, EMEA and Co-Head of Africa Practice
Martin Kavanagh
Martin Kavanagh
Co-Head of Africa Practice
Peter Leon
Peter Leon
Chair of Africa Practice




Chambers Global 2022 rankings confirm our market-leading status in Africa

The firm’s Africa practice has once again achieved top tier rankings in the 2022 edition of Chambers Global, maintaining top tier rankings in the following Africa-wide categories:

  • Band 1 for Africa-wide Projects & Energy (for the 14th consecutive year)
  • Band 1 for Africa-wide Projects & Energy: Mining & Minerals (for the 11th consecutive year)

We are also ranked:

  • Band 2 for Africa-wide Dispute Resolution
  • Band 2 for Africa-wide Corporate/M&A and Private Equity
  • Band 2 for Africa-wide Oil & Gas
  • Band 2 for Africa-wide Power
  • Band 2 for Africa-wide TMT
  • Band 3 for Africa-wide Capital Markets

5 partners across our Paris, Johannesburg and London offices are individually ranked for Africa-wide Projects & Energy, more than any other ranked firms.

The firm, or partners at the firm, are also singled out in relation to Algeria, Nigeria, Sierra Leone, Gabon, Guinea and Libya.

Commentators praise the team’s ability to “detect problems and provide solutions,” adding that the group “brings excellent expertise to the table on ESG.

Our Johannesburg office performed very well and is ranked in the following bands for South Africa:

  • Band 2 for Projects & Energy
  • Band 3 for Energy and Natural Resources – Mining
  • Band 3 for Competition/Anti-trust
  • Band 4 for Dispute Resolution
  • Band 4 for Corporate/M&A

In addition to the individual lawyer rankings in each of these areas, the Johannesburg office also has an individual lawyer ranked for Corporate Investigations.

We have 22 individual Africa-related lawyer entries in total: 8 for Africa-wide, 11 for South Africa and 3 country specific (Nigeria, Gabon and Sierra Leone).

Global Co-Head of our Africa practice Martin Kavanagh commented: “This year’s Chambers results once again affirm the strength of our Africa practice, particularly in projects, energy and mining. Congratulations to all those that received individual rankings. We are pleased at the recognition that the practice continues to receive by way of both these rankings and recent awards, including the Africa-wide Projects & Energy Law Firm of the Year at the Chambers Africa Awards 2022. We owe our thanks to our clients who continue to trust us with their most important and strategic matters in Africa.”

Global Chair of the Africa group Peter Leon added: “We very pleased to see that our Johannesburg office has continued to receive recognition in the key legal directories, with several improved individual rankings. We also received impressive client quotes for which we owe a great deal of thanks to our clients.”

For more information please contact Rebecca Donovan or Joanne Crichton.

Rebecca Donovan
Rebecca Donovan

Joanne Crichton
Joanne Crichton

Africa’s journey to COP26: The state of play on the continent’s road to meeting its climate obligations

To what extent have South Africa, Kenya, the Democratic Republic of Congo, Angola, Gambia and Ghana developed and implemented responses to Paris Agreement undertakings? This sample of countries provides some insight into sub-Saharan Africa’s past performance and current policies, and is a starting point for discussion about what the world could and should expect from them at COP26 and in the next decade. 

In August 2021, the Intergovernmental Panel on Climate Change’s (IPCC) Sixth Assessment report confirmed that human influence has undoubtedly warmed the climate system and raised the global surface temperature. The report, which is supported by the physical science of climate change, also confirmed that some changes which are already affecting the climate system are irreversible.

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Unlike development driven by legislative reform, the evolution of the common law through the process of judicial precedent takes time. Here, development only occurs when the courts are seized with a case worthy of an evolutionary push and this means that, even when deficiencies in the law are self-evident, one has to wait for the judiciary to address the issue.

The law surrounding class actions in South Africa has not had the benefit of a legislative punt which would have sped up the process of legal development. It is therefore no surprise that any new (potential) class action raises excitement at the prospect of developing new law.

Against that background, the South African High Court’s recent decision refusing to certify a shareholder class action against a company’s directors, in the case of De Bruyn v Steinhoff International Holdings N.V. and Others (“Steinhoff”), is of great interest – particularly in illustrating the significant hurdles involved.

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This brief addresses notable developments in competition law in South Africa and across the rest of Africa during the course of 2020. It includes the measures introduced by various competition law regulators in light of the COVID-19 pandemic and related cases and prosecutions.

Please click here for the detailed report.

For more information, please contact Jean Meijer, Nick Altini, Leana Engelbrecht, Sandhya Foster, Lesetja Morapi and Stewart Payne or your usual Herbert Smith Freehills contact:

Jean Meijer
Jean Meijer
Partner, Johannesburg
+27 10 500 2642
Nick Altini
Nick Altini
Partner, Johannesburg
+27 10 500 2679
Leana Engelbrecht
Leana Engelbrecht
Associate, Johannesburg
+27 10 500 2674
Sandhya Foster
Sandhya Foster
Associate, Johannesburg
+27 10 500 2643
Lesetja Morapi
Lesetja Morapi
Associate, Johannesburg
+27 10 500 2677
Stewart Payne
Stewart Payne
Associate, Johannesburg
+27 10 500 2649


Author: Peter Fabricius, Daily Maverick

But the reforms that the IMF would impose as conditions for the loan would save the economy, says Peter Leon.

South Africa will probably have to go back to the IMF for a much bigger loan than it has just got and this would come with conditions such as deep structural reforms to the economy.

These reforms would, however, be the “silver lining” on the immense fiscal crisis which the country now faces, exacerbated by the coronavirus pandemic, said Peter Leon, senior partner and co-chair of the African group at the law firm Herbert Smith Freehills.

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Authors: Lesetja Morapi

1. In Competition Commission v Pickfords Removals SA (Pty) Ltd,1 the Competition Appeal Court (CAC) dealt with a number of issues including, relevant to this note, the effect of an amendment to a complaint initiation on the application of the statute of limitation prescribed by s67(1) of the Act.

2. The CAC had to determine the effective date of complaint initiation in circumstances where a firm was only expressly identified as a party to a prohibited practice by an amendment to an original complaint initiation which did not expressly name that firm. In particular, the CAC had to decide whether the three year period prescribed by s67(1) should be calculated from the date of cessation of the prohibited practice to the date:

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