The Protected Disclosures Act

The SA government has indicated its support for the concept of whistle blowing and acknowledged the need to offer legal protection to whistle blowers with the introduction of The Protected Disclosures Act, Act 26 of 2000 (“the Act”), aptly dubbed the Whistle Blowers Act. The Act makes provision for employees to report unlawful or irregular conduct by employers and fellow employees, while providing for the protection of employees who blow the whistle. The Act makes provision for the following:Employees to report unlawful or irregular conduct by employers and fellow employees;

• Protection of employees who blow the whistle from “occupational detriment” by employers when making certain “protected disclosures”.

The irregularities covered by the Protected Disclosures Act relate to the following:

• Criminal offences;
• Failure to comply with certain legal obligations;
• Miscarriages of justice;
• Endangering of the health or safety of individuals;
• Damage to the environment; and
• Unfair discrimination.

In terms of the Act, the “occupational detriment” from which the whistle blower is protected is:

• Being subjected to any disciplinary action;
• 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;
• Being refused a reference, or being provided with an adverse reference, from his or her employer;

• Being denied appointment to any employment, profession or office;
• Being threatened with any of the actions mentioned above; or
• Being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security.

The Act further indicates that the disclosure is protected if made to certain persons, namely:

• Legal Advisor;
• Employer;
• Member of Cabinet/ Executive Council of Province, where relevant; where the employer is a Public Sector body;
• To the public Protector;
• Auditor-General; and
• Any Person, prescribed in certain circumstances.

The Act further indicates that the disclosure is protected if made to certain persons, namely:

• To protect employees who blow the whistle;
• To provide for remedies for whistle blowers against certain occupational detriment;
• To provide procedures for whistle blowers to disclose information of improprieties in a responsible manner;
• To create a culture facilitating the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner; and
• To promote the eradication of criminal and other irregular conduct in the public and private sectors.

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