Acts Online
GT Shield

Protected Disclosures Act, 2000 (Act No. 26 of 2000)

Regulations

Practical Guidelines for Employees

Part I

3. How do I make a disclosure?

 

If an employee decides to "blow the whistle" on criminal conduct or malpractices in the workplace, he or she may disclose that information to—

* a legal representative (route 1);
* his or her employer (route 2);
* a Minister or a Member of the Executive Council of a province (MEC) (route 3);
* a specified person or body (route 4); or
* any other person, under certain circumstances (route 5).

 

Any route may be used to "blow the whistle", but take note that each route has certain requirements which must be complied with.

 

LEGAL REPRESENTATIVE: (ROUTE 1)3

 

In many instances an employee will first wish to obtain legal advice regarding the making of the disclosure in terms of the Act and, in this process, make a disclosure to the legal adviser concerned.

 

Requirements:

 

* The person being consulted by the employee must be a legal representative whose occupation must involve the giving of legal advice (for example, an attorney or legal representative of the employee's labour union).
* The information must be given for the purpose of obtaining legal advice.

 

EMPLOYER (ROUTE 2)4

 

An employee can make a disclosure to his or her employer.

 

Requirement:

 

* An employee must act in good faith when he or she discloses the information ("good faith" means that the employee must act in a responsible and honest manner without any motives to gain any personal advantages from making the disclosure).

 

Take note that:

 

* An employer may decide to lay down certain procedures in terms of which disclosures must be made, even that a disclosure must be made to a person other than the employer (a disclosure of this nature will also be regarded as a disclosure to the employer).
* Many employers have established anti-corruption hot-lines which employees may use to report crime in the workplace (ask your employer whether he or she has established such a hot-line).

 

 

MINISTER OR MEC OF A PROVINCE: (ROUTE 3)5

 

An employee can make a disclosure to a Minister or an MEC of a province.

 

Requirements:

 

* The employee must act in good faith when he or she discloses the information.
* This procedure only applies if the employee's employer is—
* an individual appointed by the relevant Minister or MEC in terms of legislation; or
* a body (eg a board or other institution) appointed by the relevant Minister or MEC in terms of legislation; or
* an organ of state falling within the area of responsibility of the relevant Minister or MEC. An organ of state is any state department or administration in the national or provincial sphere of government or any municipality in the local sphere of government or any other functionary (official) or institution exercising a power or performing a duty in terms of the Constitution or a provincial constitution or exercising a public power or performing a public function in terms of any other legislation.

 

 

SPECIFIED PERSON OR BODY: (ROUTE 4)6

 

An employee can make a disclosure to the Public Protector, South African Human Rights Commission, Commission for Gender Equality, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Public Service Commission or Auditor-General.

 

The Public Protector is a high level independent official who receives complaints against government agencies or officials and investigates improper prejudice suffered by a complainant for example as a result of abuse of power. Maladministration, dishonesty or improper dealings with regard to public money, improper enrichment and receipt of improper advantages can also be investigated. (For contact details see Part III.)

 

The South African Human Rights Commission is mandated to investigate and to report on the observance of human rights, to take steps to secure appropriate redress where human rights have been violated, to carry out research and to educate. (For contact details see Part III.)

 

The Commission for Gender Equality has mandate to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality. (For contact details see Part III.)

 

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities is mandated to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities. The Commission may report any matter which falls within its powers and functions to the South African Human Rights Commission for investigation. (For contact details see Part III.)

 

The Public Service Commission is empowered by section 196 of the Constitution of the Republic of South Africa, 1996 to, amongst others, investigate, monitor, and evaluate the organisation and administration of the Public Service. (For contact details see Part III.)

 

The Auditor-General who is also a high level independent official must audit and report on the accounts, financial statements and financial management of all national and provincial state departments and administrations, all municipalities and any other institution or accounting entity required by national or provincial legislation to be audited by the Auditor-General. (For contact details see Part III.)

 

Requirements:

 

* The disclosure must be made in good faith.
* The employee must reasonably believe that the impropriety which he or she wants to disclose relates to matters that in the ordinary course are dealt with by the Public Protector, South African Human Rights Commission, Commission for Gender Equality, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Public Service Commission or Auditor-General; and
* that the information and allegations contained in the disclosure are substantially true.

[Regulations (Part I) (3)(route 4) substituted by Section 3 of Notice No. 4218, GG49938, dated 22 December 2023]

 

GENERAL DISCLOSURE: (ROUTE 5)7

 

An employee can even make a disclosure to any person, for example, a member of the press (people working for radio and television stations or newspapers), a police official of the South African Police Service or a person working for an organisation which keeps watch over the public or the private sector.

 

Requirements:

 

* The employee must act in good faith.
* The employee must reasonably believe that the information is substantially true.
* In all the circumstances of the case, it must be reasonable to make the disclosure, taking into account—
* the identity of the person to whom the disclosure is made;
* the seriousness of the impropriety;
* whether the impropriety is continuing or is likely to occur in the future;
* whether the disclosure is made in breach of a duty of confidentiality of the employer towards another person;

 

* The employee must not make the disclosure for personal gain, unless for a reward payable in terms of a law.

 

* One or more of the following must apply—
* The employee must believe that he or she will be subjected to an occupational detriment (see paragraph 4 for more information) if the disclosure is made to the employer; or
* the employee must believe that the employer will conceal or destroy evidence relating to the criminal offence or malpractice if the disclosure is made to the employer; or
* no action was taken in respect of a previous disclosure of substantially the same information to the employer; or
* the criminal offence or malpractice is of an exceptionally serious nature.

 

 

3 Section 5 of the Act.
4 Section 6 of the Act.

5        Section 7 of the Act.

6        Section 8 of the Act.

7        Section 9 of the Act.