The Protected Disclosures Act 26 of 2000, the Companies Act 71 of 2008 and the Competition Act 89 of 1998 with Regard to Whistle-Blowing Protection: Is There a Link?

Abstract

The purpose of this contribution is to investigate whether the Protected Disclosures Act, Companies Act and corporate leniency policy provide effective whistle-blower protection to whistle-blowers and whether synergy exists between these legislative provisions. Insofar as the Competition Act is concerned, it is not intended to comprehensively traverse the rationale behind leniency programmes and the features of such programmes in this discussion. Rather the focus is to alert the reader to the existence of this tool to combat cartels in statutory competition law and the fact that the South African corporate leniency policy does not provide a remedy for individuals (ie not directors or other employees authorised to file a leniency application on behalf of their employer) who blow the whistle on cartel activity by the companies that they work for, thus raising the question whether their whistle-blowing disclosures are protected by the Protected Disclosures Act and/or the Companies Act.

Keywords: protected disclosures, corporate leniency, whistle-blower protection, statutory competition, protected disclosures