Protected Disclosures Amendment Draft Bill

The Department of Justice and Constitutional Development invites you to submit written comments on the proposed draft Protected Disclosures Amendment Bill.

The Bill seeks to:
▪ amend the Protected Disclosures Act, 2000, so as to extend the application of the Act to any person who works or worked for the State or another person or who in any manner assists or assisted in carrying on or conducting the business of an employer or client as an independent contractor, consultant, agent or person rendering services to a client while being employed by a temporary employment service;
▪ regulate joint liability of employers and their clients;
▪ introduce a duty to investigate disclosures of information regarding unlawful or irregular conduct;
▪ provide for immunity against civil and criminal liability flowing from a disclosure of information which shows or tends to show that a criminal offence has been committed, is being committed or is reasonably likely to be committed.

Comments can be emailed to Mr H du Preez at [email protected] by no later than Friday, 4 July 2014.

Enquiries can be directed to Mr H du Preez on tel (012) 406 4765


Background
The following background information is hereby furnished in order to assist interested parties to comment on the draft Amendment Bill.
Clause 1 aims to amend section 1 of the principal Act by- (i) extending the ambit of the Act beyond the traditional employer and employee relationship by inserting definitions of "business", "worker" and "temporary employment service"; (ii) amending the definition of "occupational detriment" so as to bring it line with the proposed extension of the ambit of the Act; and (iii) extending the definition of "disclosure" to include additional conduct in respect of which a disclosure may be made.

Clauses 2, 3, 6, 7, 8 and 9 of the draft Amendment Bill aim to amend sections 2, 3, 6, 7, 8, and 9 of the principal Act, respectively. The proposed amendments are consequential in nature and aim to ensure that the substantive provisions of the Act reflect the proposed extension of the ambit of the Act correctly. The proposed amendments entail the inclusion of the term "worker" after the word "employee" wherever it appears in sections 2, 3, 6, 7, 8, and 9 of the principal Act.

The substantive amendments that are reflected in clause 6 aim to introduce an obligation in respect of employers to have appropriate internal procedures in operation for receiving and dealing with information about improprieties.

Clause 4 aims to introduce two new provisions in the principal Act, dealing with joint liability and a duty to investigate a disclosure, respectively. The proposed new provisions are self-explanatory.

Clause 5 of the draft Amendment Bill contains proposed amendments to section 4 of the Act which deals with remedies that are available to persons who were subjected to occupational detriment as a result of having made protected disclosures. The section 4 remedies, read with the Labour Relations Act, 1995 (Act No. 66 of 1995), are limited to "employees" in the strict sense and do not cater for independent contractors, consultants and agents. The proposed amendment of section 4 therefore aims to ensure that workers (independent contractors, consultants and agents) will also be enabled to exercise certain remedies if they are subjected to occupational detriment as a result of having made protected disclosures.

Clause 10 of the draft Amendment Bill aims to introduce two new provisions in the Act. The proposed new section 9A deals with the exclusion of civil and criminal liability. Since the Act does not protect persons from criminal or civil liability, it is argued that the introduction of such protection would help achieve one of the aims of the Act, namely, to facilitate and encourage disclosures. The proposed new section 9B will make it an offence for an employee or worker to intentionally disclose false information knowing it to be false.

Clauses 12, 13 and 14 of the draft Amendment Bill aim to amend the long title, pre-amble and the index of the Act, respectively, in order to bring the provisions concerned in line with the proposed amendment of the principal Act.