ENVIRONMENTAL WHISTLEBLOWERS

DOES OUR ENVIRONMENTAL LAW OFFER PROTECTION TO WHISTLEBLOWERS ?

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In the case of Potgieter v Tubatse Ferrochrome and others,¹ the employee (an engineer) released a report to the media which was published in a publication.

In the report, the employee alleged that the employer (a mining company) did not have adequate measures in place to address the water pollution caused by the company’s mining operations. 

PROTECTION OF WHISTLEBLOWERS UNDER NEMA

Civil Society is also afforded protection in terms of s31 of NEMA for acts of whistleblowing or the disclosure of information relating to environmental risks. This provision, which also finds application within the employer-employee relationship, provides protection to a person from criminal or civil liability and prohibits the dismissal, disciplining, prejudicing or harassing of such a person who has made a disclosure of information. 

Most importantly, no person may threaten to take any of the above-mentioned actions against a person because that person has exercised or intends to exercise his or her right in terms of s31. 

The protection afforded by this section is conditional upon the person, in good faith, believing at the time of the disclosure that he or she was disclosing evidence of an environmental risk.

PROTECTED DISCLOSURES

The disclosure will be protected if it is made:

a) to a parliamentary committee;

b) an organ of state concerned with the environment or emergency services;

c) the Public Protector;

d) the Human Rights Commission; or

e) any attorney-general. 

DISCLOSURES TO THE MEDIA

The disclosure is also afforded protection if it is made to the media, but on the following grounds:

a) that the disclosure was necessary to avert an imminent and serious threat to the environment, to ensure that the threat to the environment was properly and timeously investigated or to protect himself or herself against serious or irreparable harm from reprisals; or

b) the public interest in disclosure of the information clearly outweighed any need for non-disclosure; or

c) the information was disclosed substantially in accordance with any applicable external or internal procedure; or

d) the disclosed information had become available to the public, before the time of the disclosure. 

The disclosure will be protected, irrespective of whether the person disclosing the information concerned has used or exhausted any other applicable external or internal procedure to report or otherwise remedy the matter concerned.

Furthermore, no person may advantage or promise to advantage any person for not exercising his or her right in terms of s31. 

DISCLOSURES & REPUTATIONAL DAMAGE

The Tubatse Ferrochrome case at the Labour Appeal Court centred around the “reputational damage” to the employer and the “intolerable relationship” which rendered reinstatement of the employee impractical.

The court however held that to view the relationship as intolerable due to the mere disclosure of sensitive information would seriously erode the very protection granted by the Protected Disclosures Act 26 of 2000 and the National Environmental Management Act 107 of 1998 to whistle-blowers.

The court accepted that the public interest may in certain instances outweigh the interests of protecting the reputation of an organization.

The Court ruled that he be reinstated retrospectively.

1. Labour Appeal Court, Case No: JA 71/12. Date of judgment: 12 June 2014.