Call to remove ‘good faith’ test from whistleblower legislation
A law that hinges on 'good faith' tests the whistleblower; a modern law tests the wrongdoing. South Africa should follow the latter path
A persistent weakness in South Africa’s whistleblowing regime sits inside two small words: “good faith.” Sections 6–9 of the Protected Disclosures Act, 2000 (as amended in 2017) still condition protection on a disclosure being made “in good faith.” That threshold, though well-intentioned, does more harm than good. It invites litigation over motives, chills bona fide disclosures, and distracts decision-makers from what should be the only questions that matter: Is the information accurate (or reasonably believed to be so)? Is the disclosure in the public interest?
Recent debates among legal practitioners and policymakers underscore the point. Once discussions turn to “good faith,” the venue shifts from evidence to psychology: Was the whistleblower disgruntled? Seeking leverage? Embarrassed by a poor performance review? Those lines of attack are common — and often effective — not because they disprove the allegations, but because they muddy them. In practice, the “good faith” gate too easily becomes a motive filter that keeps out disclosures we most need to hear.
Proponents argue that a “good faith” test deters malicious or vexatious reports. But South African law already addresses that risk:
Objective reasonableness: Whistleblowing frameworks require a reasonable belief that the information is true.
Sanctions for falsehoods: Knowingly false or reckless allegations can be penalised after due process by the competent authority.
Against this backdrop, a separate “good faith” hurdle is redundant at best and counterproductive at worst. It opens a subjective inquiry into intent — an inquiry that is notoriously speculative, often mixed, and frequently fluid. Whistleblowers may begin altruistically and, after retaliation, become defensive or self-protective; that evolution should not vitiate a disclosure supported by facts.
South African jurisprudence offers a useful analogy. Our courts have long cautioned against elevating motive over merits. In Zuma v Democratic Alliance and Others, the principle is clear: a prosecution is not wrongful merely because it is instituted for an improper purpose — wrongfulness turns on the absence of reasonable and probable cause. Likewise, as Schreiner JA put it in Tsose v Minister of Justice, “the best motive does not cure an otherwise unlawful arrest, and the worst motive does not render an otherwise lawful arrest unlawful.” By parity of reasoning, whistleblower protection should not rise or fall on state of mind once objective thresholds are met.
Many jurisdictions have shifted away from “good faith” as a threshold requirement. The United Kingdom removed “good faith” from its statute in 2013, substituting an explicit public-interest test while allowing tribunals to reduce remedies (not erase protection) if a disclosure was made in bad faith. The European Union’s whistleblowing directive emphasises reasonable belief and public interest, not subjective motive. The emerging consensus is straightforward: protect disclosures made on reasonable grounds; punish deliberately false claims; do not disqualify otherwise valid reports because motives are contested.
We submit that the policy case for reform should be underpinned by the following key considerations:
Removing “good faith” centres proceedings on the veracity and materiality of what was reported — where the public interest lies — not on imponderables about why it was reported.
Potential reporters are more likely to come forward when they are not required to pass a character test. Fear that an employer will impugn their motives is a powerful deterrent.
Motive-mining generates ancillary litigation that drains resources and delays resolution. An objective standard reduces procedural skirmishes.
Investigators and courts can focus on evidence, corroboration, and harm, rather than adjudicating the psychology of the messenger.
Parliament should amend the Protected Disclosures Act to:
Delete the “in good faith” requirement from sections 6–9.
Insert an objective threshold: protection attaches where, at the time of disclosure, the reporter had reasonable grounds to believe the information was true and the disclosure was in the public interest.
Maintain liability for disclosures that are knowingly false or recklessly made, with penalties imposed after due process.
Allow adjudicators to adjust remedies (for example, reduce compensation) where a disclosure is proven to have been made in bad faith — without stripping baseline protection if the information was otherwise credible.
Clarify burdens in retaliation cases (e.g., a rebuttable presumption that adverse action following a disclosure is linked to that disclosure unless the employer proves otherwise).
These changes would not shield malicious actors; they would narrow the battlefield to the facts and strengthen the hand of those who disclose wrongdoing that would otherwise remain hidden.
If the goal is to surface credible wrongdoing, the law should test the facts and reasonableness of the report — not the reporter’s purity of heart.
A whistleblowing law that hinges on “good faith” tests the whistleblower; a modern law tests the wrongdoing. South Africa should follow the latter path. If disclosures are truthful or reasonably believed and serve the public interest, they deserve protection. If they are deliberately false or reckless, they deserve sanction. Everything else is noise — and our legal framework should be designed to cut through it.
______
Khaas is chairperson of Public Interest SA, and Dr Ugljesa Radulovic, a senior postdoctoral research fellow – University of Johannesburg.