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Marius Scheepers & Company Attorneys |
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Protected Disclosures
act, 26 of 2000 [ASSENTED TO 1 AUGUST
2000] [DATE OF COMMENCEMENT: (English text signed by
the President) ACT
To make provision for
procedures in terms of which employees in both the private and the public sector
may disclose information regarding unlawful or irregular conduct by their
employers or other employees in the employ of their employers; to provide for
the protection of employees who make a disclosure which is protected in terms
of this Act; and to provide for matters connected therewith. Preamble
Recognising that- ·
the Bill of
Rights in the Constitution of the Republic of South Africa, 1996, enshrines
the rights of all people in the Republic and affirms the democratic values of
human dignity, equality and freedom; ·
section 8 of
the Bill of Rights provides for the horizontal application of the rights in
the Bill of Rights, taking into account the nature of the right and the
nature of any duty imposed by the right; ·
criminal and
other irregular conduct in organs of state and private bodies are detrimental
to good, effective, accountable and transparent governance in organs of state
and open and good corporate governance in private bodies and can endanger the
economic stability of the Republic and have the potential to cause social
damage; And bearing in mind
that- ·
neither the
South African common law nor statutory law makes provision for mechanisms or
procedures in terms of which employees may, without fear of reprisals,
disclose information relating to suspected or alleged criminal or other
irregular conduct by their employers, whether in the private or the public
sector; ·
every employer
and employee has a responsibility to disclose criminal and any other
irregular conduct in the workplace; ·
every employer
has a responsibility to take all necessary steps to ensure that employees who
disclose such information are protected from any reprisals as a result of
such disclosure; And in order to- ·
create a
culture which will facilitate the disclosure of information by employees
relating to criminal and other irregular conduct in the workplace in a
responsible manner by providing comprehensive statutory guidelines for the
disclosure of such information and protection against any reprisals as a
result of such disclosures; ·
promote the
eradication of criminal and other irregular conduct in organs of state and
private bodies, BE IT THEREFORE ENACTED
by the Parliament of the 1 Definitions In this Act,
unless the context otherwise indicates- ‘disclosure’ means any
disclosure of information regarding any conduct of an employer, or an
employee of that employer, made by any employee who has reason to believe
that the information concerned shows or tends to show one or more of the
following: (a) That a criminal offence has been committed, is being committed or
is likely to be committed; (b) that a person has failed, is failing or is likely to fail to
comply with any legal obligation to which that person is subject; (c) that a miscarriage of justice has occurred, is occurring or is
likely to occur; (d) that the health or safety of an individual has been, is being or
is likely to be endangered; (e) that the environment has been, is being or is likely to be
damaged; (f) unfair discrimination as contemplated in the Promotion of
Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000);
or (g) that any matter referred to in paragraphs (a) to (f) has been, is
being or is likely to be deliberately concealed; ‘employee’ means- (a) any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled to receive,
any remuneration; (b) any other person who in any manner assists in carrying on or
conducting the business of an employer; ‘employer’ means any person- (a) who employs or provides work for any other person and who
remunerates or expressly or tacitly undertakes to remunerate that other
person; or (b) who permits any other person in any manner to assist in the
carrying on or conducting of his, her or its business, including
any person acting on behalf of or on the authority of such employer; ‘impropriety’ means any
conduct which falls within any of the categories referred to in paragraphs
(a) to (g) of the definition of ‘disclosure’, irrespective of whether or not- (a) the impropriety occurs or occurred in the (b) the law applying to the impropriety is that of the ‘Minister’ means the Cabinet member responsible for the administration
of Justice; ‘occupational
detriment’, in relation to the working environment of an employee, means- (a) being subjected to any disciplinary action; (b) being dismissed, suspended, demoted, harassed or
intimidated; (c) being transferred against his or her will; (d) being refused transfer or promotion; (e) being subjected to a term or condition of employment or retirement
which is altered or kept altered to his or her disadvantage; (f) being refused a reference, or being provided with an adverse
reference, from his or her employer; (g) being denied appointment to any employment, profession or office; (h) being threatened with any of the actions referred to paragraphs
(a) to (g) above; or (i) being otherwise adversely affected in
respect of his or her employment, profession or office, including employment
opportunities and work security; ‘organ of state’ means- (a) any department of state or administration in the national or provincial
sphere of government or any municipality in the local sphere of government;
or (b) any other functionary or institution when- (i) exercising a power or performing a duty in
terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in
terms of any legislation; ‘prescribed’ means prescribed by regulation in terms of section 10; ‘protected disclosure’ means a disclosure made to- (a) a legal adviser in accordance with section 5; (b) an employer in accordance with section 6; (c) a member of Cabinet or of the Executive Council of a province in
accordance with section 7; (d) a person or body in accordance with section 8; or (e) any other person or body in accordance with section 9, but does
not include a disclosure- (i) in respect of which the employee concerned
commits an offence by making that disclosure; or (ii) made by a legal adviser to whom the information concerned was
disclosed in the course of obtaining legal advice in accordance with section
5; ‘this
Act’ includes any regulation made in terms of section 10. 2 Objects and application of Act (1) The objects of this Act are- (a) to protect an employee, whether in the private or the public
sector, from being subjected to an occupational detriment on account of
having made a protected disclosure; (b) to provide for certain remedies in connection with any
occupational detriment suffered on account of having made a protected
disclosure; and (c) to provide for procedures in terms of which
an employee can, in a responsible manner, disclose information regarding
improprieties by his or her employer. (2) This Act applies to any protected disclosure made after the date
on which this section comes into operation, irrespective of whether or not
the impropriety concerned has occurred before or after the said date. (3) Any provision in a contract of employment or other agreement
between an employer and an employee is void in so far as it- (a) purports to exclude any provision of this Act, including an
agreement to refrain from instituting or continuing any proceedings under
this Act or any proceedings for breach of contract; or (b) (i) purports to preclude the employee; or (ii) has the effect of discouraging the employee, from making a protected disclosure. 3 Employee
making protected disclosure not to be subjected to occupational detriment No
employee may be subjected to any occupational detriment by his or her
employer on account, or partly on account, of having made a protected
disclosure. 4 Remedies (1) Any employee who has been subjected, is subject or may be
subjected, to an occupational detriment in breach of section 3, may- (a) approach any court having jurisdiction, including the (b) pursue any other process allowed or
prescribed by any law. (2) For the purposes of the Labour Relations
Act, 1995, including the consideration of any matter emanating from this Act
by the (a) any dismissal in breach of section 3 is deemed to be an
automatically unfair dismissal as contemplated in section 187 of that Act,
and the dispute about such a dismissal must follow the procedure set out in
Chapter VIII of that Act; and (b) any other occupational detriment in breach of section 3 is deemed
to be an unfair labour practice as contemplated in
Part B of Schedule 7 to that Act, and the dispute about such an unfair labour practice must follow the procedure set out in that
Part: Provided that if the matter fails to be resolved through conciliation,
it may be referred to the Labour Court for
adjudication. (3) Any employee who has made a protected disclosure and who
reasonably believes that he or she may be adversely affected on account of
having made that disclosure, must, at his or her request and if reasonably
possible or practicable, be transferred from the post or position occupied by
him or her at the time of the disclosure to another post or position in the
same division or another division of his or her employer or, where the person
making the disclosure is employed by an organ of state, to another organ of
state. (4) The terms and conditions of employment of a person transferred in
terms of subsection (2) may not, without his or her written consent, be less favourable than the terms and conditions applicable to
him or her immediately before his or her transfer. 5 Protected disclosure to legal adviser Any disclosure
made- (a) to a legal practitioner or to a person whose occupation
involves the giving of legal advice; and (b) with the object of and in the course of obtaining legal advice, is a
protected disclosure. 6 Protected disclosure to employer (1) Any disclosure made in good faith- (a) and substantially in accordance with any procedure prescribed, or authorised by the employee’s employer for reporting or
otherwise remedying the impropriety concerned; or (b) to the employer of the employee, where there is no procedure as
contemplated in paragraph (a), is a
protected disclosure. (2) Any employee who, in accordance with a procedure authorised by his or her employer, makes a disclosure to
a person other than his or her employer, is deemed, for the purposes of this
Act, to be making the disclosure to his or her employer. 7 Protected disclosure to member of Cabinet or Executive
Council Any disclosure made in
good faith to a member of Cabinet or of the Executive Council of a province
is a protected disclosure if the employee’s employer is- (a) an individual appointed in terms of legislation by a member of
Cabinet or of the Executive Council of a province; (b) a body, the members of which are appointed in terms of legislation
by a member of Cabinet or of the Executive Council of a province; or (c) an organ of state falling within the
area of responsibility of the member concerned. 8 Protected disclosure to certain persons or bodies (1) Any disclosure made in good faith to- (a) the Public Protector; (b) the Auditor-General; or (c) a person or body prescribed for purposes of this section; and in
respect of which the employee concerned reasonably believes that- (i) the relevant impropriety falls within
any description of matters which, in the ordinary course are dealt with by
the person or body concerned; and (ii) the
information disclosed, and any allegation contained in it, are substantially
true, is a
protected disclosure. (2) A person or body referred to in, or prescribed in terms of, subsection
(1) who is of the opinion that the matter would be more appropriately dealt
with by another person or body referred to in, or prescribed in terms of,
that subsection, must render such assistance to the employee as is necessary
to enable that employee to comply with this section. 9 General protected disclosure (1) Any disclosure made in good faith by an employee- (a) who reasonably believes that the information disclosed, and any
allegation contained in it, are substantially true; and (b) who does not make the disclosure for purposes of personal gain,
excluding any reward payable in terms of any law; is
a protected disclosure if- (i) one or more of the conditions
referred to in subsection (2) apply; and (ii) in all the circumstances of the case, it is reasonable to
make the disclosure. (2) The conditions referred to in subsection (1) (i)
are- (a) that at the time the employee who makes the disclosure has reason
to believe that he or she will be subjected to an occupational detriment if
he or she makes a disclosure to his or her employer in accordance with
section 6; (b) that, in a case where no person or body is prescribed for the
purposes of section 8 in relation to the relevant impropriety, the employee
making the disclosure has reason to believe that it is likely that evidence
relating to the impropriety will be concealed or destroyed if he or she makes
the disclosure to his or her employer; (c) that the employee making the disclosure has previously made a
disclosure of substantially the same information to- (i) his or her employer; or (ii) a person or body referred to in section 8, in
respect of which no action was taken within a reasonable period after the
disclosure; or (d) that the impropriety is of an
exceptionally serious nature. (3) In determining for the purposes of subsection (1) (ii) whether it
is reasonable for the employee to make the disclosure, consideration must be
given to- (a) the identity of the person to whom the disclosure is made; (b) the seriousness of the impropriety; (c) whether the impropriety is continuing or is likely to occur in
the future; (d) whether the disclosure is made in breach of a duty of
confidentiality of the employer towards any other person; (e) in a case falling within subsection (2) ©, any action which the
employer or the person or body to whom the disclosure was made, has taken, or
might reasonably be expected to have taken, as a result of the previous
disclosure; (f) in a case falling within subsection (2) © (i),
whether in making the disclosure to the employer the employee complied with
any procedure which was authorised by the employer;
and (g) the public interest. (4) For the purposes of this section a subsequent disclosure may be
regarded as a disclosure of substantially the same information referred to in
subsection (2) © where such subsequent disclosure extends to information
concerning an action taken or not taken by any person as a result of the
previous disclosure. 10 Regulations (1) The Minister may, after consultation with the Minister for the
Public Service and Administration, by notice in the Gazette make regulations
regarding- (a) for the purposes of section 8 (1), matters which, in addition to
the legislative provisions pertaining to such functionaries, may in the
ordinary course be referred to the Public Protector or the Auditor-General,
as the case may be; (b) any administrative or procedural matter necessary to give effect
to the provisions of this Act; and (c) any other matter which is required or
permitted by this Act to be prescribed. (2) Any regulation made for the purposes of section 8 (1) © must
specify persons or bodies and the descriptions of matters in respect of which
each person or body is prescribed. (3) Any regulation made in terms of this section must be submitted to
Parliament before publication thereof in the Gazette. (4) (a) The Minister must, after consultation
with the Minister for the Public Service and Administration, issue practical
guidelines which explain the provisions of this Act and all procedures which
are available in terms of any law to employees who wish to report or
otherwise remedy an impropriety. (b) The guidelines referred to in paragraph (a) must be approved by
Parliament before publication in the Gazette. (c) All organs of state must give to every employee a copy of the
guidelines referred to in paragraph (a) or must take reasonable steps to
bring the relevant notice to the attention of every employee. 11 Short title and commencement This Act is called the
Protected Disclosures Act, 2000, and commences on a date determined by the
President by proclamation in the Gazette.
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