Protected Disclosures Act [No 26 of 2000]
REPUBLIC OF SOUTH AFRICA
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIKA
Registered at the Post O$ce as a Newspaper As ‘n Nuusblad by dig.l?oskatltoor Ge~egi.~treer
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CAPE TOWN, 7 AUGUST 2000 VOL. 422 No. 21453
KAAPSTAD, 7 AUGUSTUS 2000
THE PRESIDENCY
I
No. 785. 7 August 2000
It is hereby notified that the President has assented to the following Act which is hereby published for general information:—
No, 26 of 2000: Protected Disclosures Act, 2000.
DIE PRESIDENSIE —
No. 785. 7 Augustus 2000
Hierby word bekend gemaak dat die Prcsi&nt sy god keuring geheg het aan die onderstaande Wet wat hicrby (cr algemene in[ig(ing gcpubliseer word:—
No. 26 van 2000: Wet op Beskcrmck Bckendmakings. ?000,
2 No. 21453 GOVERNMENT GAZETTE, 7 AUGUST 2000
Act No. 26,2000 PROTECTED DISCLOSURES ACT, 2000
(English text signed by the president.) (Assented to 1 August 2000.)
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
Recomisin~ 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 empioyee~ who disclose su~h 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,
B E IT THEREFORE EN-ACTED by the Parliament of the Republic of South Africa,as follows:—
4 No. 21453 GOVERNMENT GAZETTE, 7 AUGUST 2000
Act No. 26, 2000 PROTECTED DISCLOSURES ACT, 2000
Definitions
1. In this Act, unless the context otherwise indicates— (i) “disclosure” means any disclosure of info, mation 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 5 more of the following:
(a)
(b)
(c)
(d)
(e) (f)
(g)
That a crimin~l offence has been committed, is being committed or is likely to be committed; that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; 10 that a miscarriage of justice has occurred, is occurring or is likely to occur; that the health or safety of an individual has been, is being or is likely to be endangered; that the environment has been, is being or is likely to be damaged; 15 unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No, 4 of 2000); or that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be deliberately concealed; (i)
(ii) “employee” means— 20 (LZ) 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; (x) 25
(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 30 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 wi[hin any of the categories referred to in paragraphs (a) to (g) of the definition of “disclosure”, irrespective 35 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; (vi) 40
(v) “Minister” means the Cabinet member responsible for the administration of Justice; (v)
(vi) “occupational detriment”, in relation to the working environment of an emp[oyee, means—
(a) (b) (c) (d) (e)
(fl
(’g) (h)
(i)
being subjected to any disciplinary action; 45 being dismissed, suspended, demoted, harassed or intimidated; being transferred against his or her will; being refused transfer or promotion; being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage; 50 being refused a reference. or being provided with an adverse reference, from his or her employer; being denied appointment to any employment, profession or ofllce; being threatened with any of the actions referred to paragraphs (a) to (g) above; or 55 being otherwise adversely affected in respect of his or her employment, profession or ollicc, including employment opportunities and work security; (ii)
(vii) “organ ofstate” means— (a) any department of sta[c or administration in the national or provincial 60
sphere of governmtml or any municipality in the local sphere of government; or
6 No. 21453 GOVERNMENT GAZEl_tE, 7 AUGUST 2000
Act No. 26,2000 PROTECTED DISCLOSURES ACT, 2000
(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; (vii)