CONTENTS
1.
Preamble and Definitions
2.
Objects and application of Act
3.
Employee making protected disclosure not to be subjected to occupational
detriment
4. Remedies
5.
Protected disclosure to legal adviser
6.
Protected disclosure to employer
7.
Protected disclosure to member of Cabinet or Executive Council
8.
Protected disclosure to certain persons or bodies
9.
General protected disclosure
10. Regulations
11. Short
title and commencement
PROTECTED DISCLOSURES 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 Republic of South Africa, as follows:-
1.
Definitions
1. In this Act, unless the context
otherwise indicates-
(i) "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 No. 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;
(ii) "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; and
(b) any other person who in any manner assists in carrying on or
conducting the business of an employer;
(iii) "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; (ix)
(iv) "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 Republic of South Africa or elsewhere; or
(b) the law applying to the impropriety is that of the Republic of South
Africa or of another country;
(v) "Minister" means the Cabinet
member responsible for the administration of Justice;
(vi) "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;
(k) 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;
(vii) "organ of state" means-
(a) any department of state or
administration in the national or provincial
(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;
(viii) "prescribed" means prescribed
by regulation in terms of section 10;
(ix) "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;
(x) "this Act" includes any
regulation made in terms of section 10.
2. Objects
and application of Act
2. (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
4. (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 Labour Court established by section 151 of the Labour
Relations Act, 1995 (Act No. 66 of 1995), for appropriate relief; or
(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 Labour Court-
(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
(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
6. (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
8. (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
9. (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)(c), 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)(c)(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)(c) 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
10. (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)(c) 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 termsof 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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