Do whistle-blowers need to adhere to the duty of good faith, under the Protected Disclosures Act 26 of 2000?

The Protected Disclosure Act, 2000 ("PDA") came into force in February 2001 and was subsequently amended in 2017.  The PDA applies to employees and workers both in the private and public sector and its primary objective is to provide for the protection of employees or workers who make a disclosure which is protected in terms of the PDA.

The PDA is applicable in two instances, the first is where there has been a disclosure and secondly that disclosure is protected as defined in the PDA.  The manner in which the information has been disclosed is irrelevant and the disclosure will be protected if it is made to the right person. The right person can be:

• a legal advisor with the purpose of obtaining legal advice;
• your employer;
• the public protector;
• the auditor-general;
• a member of Cabinet or of the Executive Council of a province; or
• any other person provided the conditions as set out in the PDA are met, one of which is good faith.

When a disclosure is made the PDA requires that, in addition to the other requirements, it must be in good faith and the employee must reasonably believe that the information disclosed is substantially true and should not be for personal gain or reward.

In Communication Workers Union v Mobile Telephone Network (Pty) Ltd and another,[1] Van Niekerk AJ (as he was then) stated that in relation to the disclosure being in good faith, an employee who deliberately sets out to embarrass or harass an employer is not likely to satisfy the requirement of good faith.

In Potgieter v Tubatse Ferrochrome & others, the applicant was dismissed after having being found guilty on charges of failing to obey an instruction to report for duty.[2] After his dismissal an article was published in a magazine called Mining Weekly alleging that his former employer  was causing extensive pollution which exposed the public to hexavalent chromium and contaminated underground water.

The court found that it is true that employees are protected under the PDA for wider disclosures which includes making disclosures to the media.  However, the court further found that in order for it to be protected there must be good cause to do so and the particular disclosure must be reasonable.  The court further found that before it could consider the good causes recognized in law, it had to establish whether the disclosure was made in good faith by the employee.

In Mbethe v United Manganese of Kalahari (Pty) Limited,[3] the Supreme Court of Appeal held that the mere assertion of the applicant that he possesses the requirement of good faith is insufficient.  Although the test of good faith is subjective, it is nevertheless subject to an objective control.  The state of mind of the applicant must be determined by drawing inferences from the objective facts.

In John v Afrox Oxygen Ltd the appellant employee who was then employed as Head of Talent Management in the respondent employer’s human resource department was dismissed after refusing a “termination offer”.[4] She claimed to have been dismissed for having made a protected disclosure and had been subjected to occupational detriment.  The respondent employer however claimed that the complaints were baseless, and that the appellant employee failed to prove that she reasonably believed in the truth of her complaints.

The appeal court held that while the court a quo (court of first instance) accepted that the belief need not be correct, it took a contrary view that the belief must be based on facts in order to enjoy the protection of the PDA and this approach (by the court a quo), in the opinion of the appeal court, is misconceived.  The appeal court further found that in requiring the appellant employee to prove the correctness of the facts for the existence of a reasonable belief in order to enjoy protection, the court a quo elevated the requirement of reasonable belief to one of accuracy of the facts upon which the belief is based.

The appeal court concluded that for the disclosure to have been made with a reasonable belief and in good faith all that is required is for the appellant employee to believe that the conduct complained of is unlawful.

In Baxter v Minister of Justice and Correctional Services and others the appeal court held the fact that the appellant may have acted partly out of ulterior motive does not mean that he did not act in good faith (or acted in bad faith) by making the disclosure.[5] Good faith must be assessed contextually on a case-by-case basis, taking into account the various factors at play in the specific case.  Acting with an ulterior motive is not necessarily the same as acting in bad faith.  The appeal court further held that acting in bad faith in a strict sense refers to a dishonest intention or a corrupt motive, and the fact that a person may have acted with some personal animosity or spite (in contrast) is not alone sufficient to conclude that he or she did not act in good faith.

Employers must, therefore, be cognisant that an ulterior motive by an employee in making the disclosure may not in itself be sufficient to conclude that the disclosure was not made in ‘good faith’.  On the other hand, employees who make a disclosure with the sole purpose of embarrassing or harassing an employer will likely not meet the requirement of good faith.  From the above case law, it is clear that whether an employee makes a disclosure in ‘good faith’ depends on the facts of each case and should indeed be assessed on a case to case basis taking into account the various factors and particular circumstances.