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

Regulations

Practical Guidelines for Employees

Part II

6. Are there any other procedures to report or remedy an impropriety?

 

There are other procedures, in addition to those provided for in the Protected Disclosures Act, 2000, which are available to employees who wish to report an impropriety in the workplace, namely—

 

6.1 The Public Service Act, 1994 (Proclamation No. 103 of 1994):

 

The Public Service Act10 provides that a complaint or grievance concerning an official act or omission may be investigated by the Public Service Commission. An employee may lodge a complaint or grievance with the relevant executing authority, defined in the Public Service Act11. If that complaint or grievance is not resolved to the satisfaction of the employee, that executing authority must submit the complaint or grievance to the Public Service Commission.

 

The term "executing authority" means, in relation to—

(a) the Office of the President, the President acting on his or her own;
(b) the Office of the Deputy President, the Deputy President;
(c) a department or organizational component within a Cabinet portfolio, the Minister responsible for such portfolio;
(d) the Office of the Public Service Commission, the Chairperson of Commission;
(e) the Office of a Premier of a province, the Premier of that Province acting on his or her own; and
(f) a provincial department within an Executive Council portfolio, the member of such Executive Council responsible for such portfolio.

 

After the Public Service Commission has investigated and considered such complaint or grievance, the Commission may recommend that the relevant executing authority acts in terms of a particular provision or provisions of the Public Service Act, 1994, or any other law if, having regard to the circumstances of the case, the Commission considers it appropriate to make such a recommendation12. The latest rules, effective from 19 September 2003, were published in the Government Gazette No. 25209 under Government Notice No. R. 1012 of 25 July 2003. These rules are also available on the website of the Public Service Commission, at the following address.

 

http://www.psc.gov.za/docs/pubs/govgazette/25209.pdf. (See Part III for the contact details.)

 

The Code of Conduct for the Public Service13 also places an obligation on an employee to report on certain matters and provides as follows:

 

An employee, in the course of his or her official duties, shall report to the appropriate authorities, fraud, corruption, nepotism, maladministration and any other act which constitutes an offence or which is prejudicial to the public interest.

 

An employee who fails to comply with this provision is guilty of misconduct.14

 

The above applies to persons who are employed in the public service, namely—

(a) employees of all national departments, provincial administrations and provincial departments and organisational components listed in Schedules 1 to 3 of the Public Service Act, 1994; and
(b) employees in the South African Police Service, the South African National Defence Force, Department of Correctional Services, state educational institutions, as defined in the Public Service Act, 1994, the National Intelligence Agency, and South African Secret Service, but only insofar as they are not contrary to the laws governing their employment.

 

6.2 The Defence Act, 2002 (Act 42 of 2002):

 

The South African National Defence Force employs two categories of employees, namely persons employed in terms of the Public Service Act, 1994, or in terms of the Defence Act, 2002.

 

Persons employed in terms of the Public Service Act, 1994, are subject to the provisions mentioned in paragraph 6.1 above, and persons employed in terms of the Defence Act, 2002, are subject to the Military Discipline Code15 which, among others, provides for the following:

 

Section 7: Offences relating to the failure of a person to report activities likely to endanger the safety of the S A Defence Force to his or her superior officer;

 

Section 21: Any person who is aware of or suspects that an offence in relation to the acquisition or disposal of public property has been or might be committed to report it to his or her superior officer without delay;

 

Section 134: A grievance procedure that has to be followed by a person who is aggrieved by any act or omission of any person subject to the Code.

 

6.3 The South African Police Service Act, 1995 (Act 68 of 1995):

 

The South African Police Service Act16, provides that an employee commits misconduct if he or she "withholds or unreasonably delays any complaint or an adverse communication in connection with another employee or person employed by the Service". The relevant regulation should be read with regulation 18(9) which provides that "[a]n employee commits misconduct, ... if the employee knowingly makes a false accusation against any employer or person employed by the Service, or during an investigation, trial or inquiry makes a false statement or wilfully suppresses or conceals material facts.".

 

The Independent Complaints Directorate17, investigates complaints in respect of offences and misconduct by members of the SAPS. The Anti-Corruption Command Unit of the Directorate in particular investigates complaints of corruption against members of the SAPS. Another mechanism which is available to address complaints against members of the SAPS is the National Inspectorate.

 

National Instruction 1 of 1999 deals with special arrangements regarding members who provide information to the Organised Crime unit of SAPS. A member or other employee of SAPS who has provided information to the Organised Crime unit may apply in writing to the Divisional Commissioner: Personnel Management for a temporary or permanent transfer or that such other arrangement concerning the performance of his or her duties or functions be made. The relevant application must be submitted to the Commander: Organised Crime who will make a recommendation to the Divisional Commissioner: Personnel Management regarding the application.

 

6.4 National Environmental Management Act, 1998 (Act 107 of 1998):

 

Evidence of an environmental risk may in terms of the National Environmental Act18 be disclosed to—

* a committee of Parliament or of a provincial legislature;
* an organ of state responsible for protecting any aspect of the environment or emergency services;
* the Public Protector;
* the South African Human Rights Commission;
* the National Director of Public Prosecutions.

 

A disclosure may also be made to one or more news media subject to certain requirements mentioned in section 31.

 

6.5 The Western Cape Public Protector Act, 1994 (Act 6 of 1994):

 

The Western Cape Public Protector Law19, provides that any person (which includes employees of the Western Cape Province) may report any—

* maladministration in connection with the affairs of government at provincial and local authority level;
* abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function;
* improper or dishonest act or omission or corruption with respect to public money;
* improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in the public administration or in connection with the affairs of government at provincial level or of a person performing a public function; or
* act or omission by a person in the employ of government at provincial level, local authority level or a person performing a public function, which results in unlawful or improper prejudice to any other person,

to the Western Cape Public Protector who may endeavour to resolve any dispute or rectify any act or omission by mediation, conciliation or negotiation. Where the facts disclose the commission of an offence the matter will be brought to the notice of the relevant Director of Public Prosecutions.

 

6.6 The following direct, indirect or supporting remedies are also available to public service employees:

 

(a) Direct remedies:

 

* A public service employee may use labour remedies regarding official acts or omissions of a labour nature, namely disputes of rights (for example, unfair dismissal or unfair labour practice as described in sections 185 - 188 of the Labour Relations Act, 1995). A dispute can be referred to the relevant bargaining council having jurisdiction, for example the Public Service Co-ordinating Bargaining Council (PSCBC) or one of the sectoral bargaining councils of the PSCBC, for example the General Public Service Sectoral Bargaining Council.
* A public service employee may also lodge a complaint with a labour inspector concerning any alleged contravention of the Basic Conditions of Employment Act.20 An employee may also make a complaint to a trade union representative or trade union official concerning any alleged failure or refusal by an employer to comply with the Basic Conditions of Employment Act.
* Such employee may bring an alleged contravention of the Employment Equity Act21 to the attention of another employee, an employer, a trade union, a labour inspector, a workplace forum, the Director-General: Labour or the Commission for Employment Equity. A dispute regarding unfair discrimination in any employment policy or practice, as described in the Employment Equity Act may be referred to the Commission for Conciliation, Mediation and Arbitration22.
* A public service employee may lodge a complaint with the South African Human Rights Commission23 concerning an official act or omission that is suspected to constitute a violation of or threat to any fundamental right.
* An employee may use other legal remedies such as the institution of proceedings for the judicial review of an administrative action in terms of the Promotion of Administrative Justice Act24, or seeking an interdict from the relevant court to prevent a contravention or the continuation of a contravention25.

 

(b) Indirect/supporting remedies:

 

A public service employee may also request—

* reasons for an administrative action in terms of the Promotion of Administrative Justice Act, 200026;
* access to records of a government department or other public body in terms of the Promotion of Access to Information Act, 200027.

 

 

10 Section 35(1) of the Public Service Act, 1994 (proclamation No. 103 of 1994).
11 Section 1 of the Public Service Act, 1994.
12 Section 35(2) of the Public Service Act, 1994.
13 Regulation C.4.10 of Chapter 2 of the Public Service Regulations, 2001.
14 Regulation B.3 of Chapter 2 of the Regulations.
15 The First Schedule to the Defence Act, 1957 (Act 44 of 1957).
16 Regulation 18(10) of the South African Police Service Discipline Regulations, issued under section 24(1)(g) of the South African Police Service Act, 1995.
17 Established in terms of sections 50 to 54 of the South African Police Service Act, 1995.
18 Section 31 of the National Environmental Management Act, 1998.
19 Sections 4(1) and 5(1) and (2) of the Western Cape Public Protector Law, 1994.
20 Section 78(1) of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997).
21 Section 34 of the Employment Equity Act, 1998.
22 Chapter II of the Employment Equity Act, 1998.
23 Section 8 of the Human Rights Commission Act, 1994 (Act 54 of 1994).
24 Section 6 of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000).
25 Section 8 of the Promotion of Administrative Justice Act, 2000.
26 Section 5 of the Promotion of Administrative Justice Act, 2000.
27 Section 11 of the Promotion of Access to Information Act, 2000 (Act 2 of 2000).