Procurement bill seeks to overhaul whistleblower protection and accountability

By Tara Roos

South Africa’s procurement law is in for a fundamental shift following the tabling of the Public Procurement Amendment Bill on Thursday.

The assassinations of whistleblowers such as Babita Deokaran and Marius van der Merwe underscore the risks faced by individuals who expose corruption, and the bill seeks to provide both protection and recognition.

If enacted, the Public Procurement Amendment Bill would mark a significant recalibration of South Africa’s anti‑corruption architecture.

It embeds financial incentives, strengthens penalties and creates a statutory right to private prosecution, thereby altering the balance of accountability between citizens and the state.

In legislative terms, it represents a decisive attempt to institutionalise whistleblower protection within the procurement system, signalling a shift from rhetorical commitments to enforceable statutory safeguards.

Among other things, the bill will, for the first time, embed whistleblower incentivisation and private prosecution powers into the statutory framework governing the state’s R800bn annual procurement spend.

The measure, introduced in the National Assembly by ActionSA MP Malebo Kobe, is designed to fracture corruption networks by creating a formal disclosure route, strengthening protections, and rewarding those whose information leads to financial recoveries for the state.

At its core, the bill inserts new sections into the Public Procurement Act 2024, establishing a statutory mechanism for whistleblower disclosures.

Any person — whether an employee, private citizen or member of a civil society organisation — may submit information to the public procurement office or a law enforcement body.

The office is obliged to investigate, with procedures tailored to each case, and must maintain strict confidentiality. Disclosures may be made anonymously, and identity may only be revealed with consent or by court order.

The bill criminalises intimidation, coercion or interference with whistleblowers, raising penalties from a maximum of 10 years to 20 years’ imprisonment — aligning procurement offences with organised crime statutes.

Unprecedented reward scheme

The legislation introduces a reward scheme unprecedented in South African procurement law.

Courts are empowered to award whistleblowers between 15% and 25% of funds recovered by the state following disclosures that result in convictions or civil forfeiture orders. Where recoveries follow private prosecutions, the range rises to between 20% and 33%.

Rewards are payable only after finalisation of proceedings and asset realisation and are excluded for any person complicit in the offence.

Payments must be made promptly from recovered funds before deposit into the criminal assets recovery account, requiring new administrative procedures within the Treasury.

Courts must weigh the originality and material contribution of the disclosure when determining awards, embedding judicial discretion into the incentive framework.

The bill also creates a statutory right to private prosecution in procurement offences. Section 60A provides that any person may institute a private prosecution after giving written notice to the director of public prosecutions.

If the director of public prosecutions declines to prosecute or fails to respond within 30 days, the private prosecution may proceed, and the director of public prosecutions is barred from prosecuting the matter except with leave of the court.

New avenue for accountability

This provision directly addresses repeated failures of the National Prosecuting Authority to act in high‑profile corruption cases, shifting prosecutorial discretion and opening a new avenue for accountability outside the state.

By amending definitions to include “whistleblower disclosure” and cross-referencing the Protected Disclosures Act, the bill integrates sector-specific protections with the broader whistleblower regime.

It also empowers the finance minister to make regulations governing disclosure procedures and reward payments, signalling an administrative expansion of the procurement oversight framework.

The public procurement office will be required to establish secure reporting channels, investigative protocols, and confidentiality safeguards, while courts will need to develop jurisprudence on reward claims and private prosecutions.

The bill notes that whistleblower incentivisation has been effective internationally, citing the US False Claims Act, which enabled recoveries of $2.9bn in 2024, and similar models in the UK and Europe.

ActionSA leader Herman Mashaba said the measure was the first instalment of the party’s anti‑corruption reform package.

“Corruption is public enemy number one. This bill is designed to dismantle corrupt networks, protect whistleblowers and, for the first time, reward those who are brave enough to expose wrongdoing. That is how we restore accountability and begin to fix South Africa.”