Whistleblowing

The Protected Disclosures Act, 2000

Following is a summary – not a guide - of the key points and provisions of the Protected Disclosures Act of 2000.

This summary has been produced by the Open Democracy Advice Centre. The Centre is a partnership of IDASA, the University of Cape Town Department of Public Law and the Black Sash Trust. The Open Democracy Advice Centre’s purpose is to promote open and transparent democracy; to foster a culture of corporate and government accountability; and to assist people to realise their human rights through supporting the effective implementation of laws which enable access to and disclosure of information.

• ODAC advises individuals who are unsure whether or how to blow the whistle
• ODAC assists organisations to comply with the new law

ODAC offers customised training and consultancy services including:

• guidance on the Protected Disclosures Act 2000 and its implications for you and your organisation
• how to put a best practice whistleblowing policy in place
• how to handle employees’ concerns

For further information about the Act and its implications for you and your organisation, and about ODAC’s services and products, please contact the Open Democracy Advice Centre on phone (021) 467 5600 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it visit our website at www.opendemocracy.org.za

Summary of the Act
The Protected Disclosures Act came into force in February 2001. It encourages people to raise concerns about improprieties in the workplace and will help ensure that organisations respond by

• addressing the message rather than the messenger; and
• resisting the temptation to cover up serious malpractice or “improprieties”.

Through protecting whistleblowers from being subjected to an occupational detriment in the following circumstances, the Act promotes the public interest.

Impropriety
The Act applies to people at work raising genuine concerns about crime, civil offences (including negligence, breach of contract, breach of administrative law), miscarriage of justice, danger to health and safety or the environment and the cover up of any of these. It applies whether or not the information is confidential and extends to malpractice occurring overseas.

Individuals covered
The Act covers every employee and applies to every employer.

Legal Advice
The Act confirms that employees may safely seek legal advice on any concerns they have about improprieties.

Internal disclosures
A disclosure in good faith to a manager or the employer will be protected if the whistleblower has a reasonable suspicion that the impropriety has occurred, is occurring or is likely to occur. Where a third party is responsible for the matter this same test applies to disclosures made to it.

Disclosures to member of Cabinet or Executive Council
Where the employer is

• an individual appointed in terms of legislation by a member of Cabinet or of the Executive Council of a province; or
• 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
• an organ of state,

a disclosure made in good faith, by an employee to the member of Cabinet or Executive Council will be protected in the same way as an internal one.

Disclosures to prescribed bodies
The Act protects disclosures made in good faith to prescribed regulatory bodies such as the Public Protector and the Auditor General where the whistleblower reasonably believes that the information and any allegation in it are substantially true.

Wider disclosures
Wider disclosures (e.g. to the police, the media, MPs and non-prescribed regulators) are protected if, in addition to the tests for disclosures to prescribed regulatory bodies, they are reasonable in all the circumstances and they meet one of the four preconditions.

Provided they are not made for personal gain, these preconditions are that the whistleblower:

• reasonably believed s/he would be subjected to an occupational detriment if s/he raised the matter internally or with a prescribed regulator; or
• reasonably believed a cover-up was likely and there was no prescribed regulator; or
• had already raised the matter internally or with a prescribed regulator; or
• the impropriety in question is exceptionally serious.

Whether the disclosure was reasonable will depend on the identity of the person to whom it was made, the seriousness of the concern, whether the risk or danger remains, and whether it breached a duty of confidence the employer owed a third party. Where the concern had been raised with the employer or a prescribed regulator, the reasonableness of its response will be particularly relevant. Finally, if the concern has first been raised with the employer, it is relevant whether any whistleblowing policy in the organisation was or should have been used.

Occupational detriment
A whistleblower who is subjected to any disciplinary action - including dismissal, suspension, demotion, harassment or intimidation; a transfer against his or her will; a disadvantageous alteration in the terms and conditions of his or her employment will have been subjected to an occupational detriment.

A refusal of a transfer or promotion; a refusal to provide a reference or providing an adverse reference; a refusal of employment or appointment to office; or any other adverse impact on the whistleblower’s employment will also amount to an occupational detriment.

Threatening the whistleblower with any of the above is an occupational detriment.

Remedies
Where the whistleblower is subjected to an occupational detriment s/he can bring a claim in any court having jurisdiction, including the Labour Court, or pursue any other process allowed or prescribed by law (for example conciliation through the CCMA). In addition to providing for financial compensation, the Act enables the whistleblower to request and obtain a transfer on terms and conditions no less favourable than the conditions that applied immediately before the transfer.

Confidentiality clauses
Confidentiality or ‘gagging’ clauses in employment contracts and severance agreements are void insofar as they conflict with the Act's protection.