Question NW4185 to the Minister of Public Service and Administration
29 December 2023 - NW4185
Gondwe, Dr M to ask the Minister of Public Service and Administration
(1)What (a) legislative provisions were relied upon when amending the Public Service Regulation 61(6)(b), (b) constitutes privileged information as there is no such category in terms of Minimum Information Security Standards and (c) legislative provisions prohibit a whistleblower from disclosing privileged information to (i) a Parliamentary committee and (ii) the media; (2) whether she has found that amended Public Service Regulation 61(6)(b) is in line with the Protected Disclosures Act, Act 26 of 2000 as it is now an offence and misconduct for a Senior Management Service member to disclose any privileged and/or confidential information obtained during the course of duty to an unauthorised person or persons, with a prohibited reemployment period for five (5) years if found guilty; if not, why not; if so, which provisions of the specified Act does the amendment align with; (3) what (a) are the reasons that her department wants to manage the database public disclosures when it is not the custodian of the Act and gazetted procedures, as that is now contrary to the whistleblowing reporting regime of 2011 and (b) mechanisms and procedures have been made available to potential whistleblowers who intend to make a protected disclosure against her department itself, as what had happened recently?
Reply:
1. (a) the provisions of regulation 61(6)(b) of the Public Service Regulations, 2016 relate to the unauthorised release of information and is authorised by section 41 of the Public Service Act, 1994 read with section 17(4) of the same Act.
(b) Privileged information is information that is protected from disclosure due the rights vested in individuals or bodies by the Constitution, other laws and rules of the Republic of South Africa.
(c) Whistleblowing is managed through the Protected Disclosures Act, 2000 and authorises an employee to disclose information to authorities listed in the Practical Guidelines for Employees issued in terms of section 10(4)(a) of the Protected Disclosures Act. In addition, regulation 13(e) of the Public Service Regulations requires and authorises the reporting of fraud, corruption, nepotism, maladministration and any other act which constitutes a contravention of any law (including, but not limited to, a criminal offence) or which is prejudicial to the interest of the public, which comes to the attention of an employee during the course of his or her employment in the public service to relevant authorities.
(i) the authority to report certain protected disclosures to Parliament is contained in the Practical Guidelines for Employees issued in terms of section 10(4)(a) of the Protected Disclosures Act.
(ii) the authority to report certain protected disclosures to the media is contained in the Practical Guidelines for Employees issued in terms of section 10(4)(a) of the Protected Disclosures Act.
2. Yes, the amended Public Service Regulation 61(6)(b) is in line with the Protected Disclosures Act. The Protected Disclosures Act authorises the disclosure of certain information. If so authorised, the employee cannot be found guilty of misconduct relating to unauthorised disclosure of information as per the Public Service Regulations.
3. (a) A disclosure contemplated in section 1 of the Protected Disclosures Act can, in addition to the persons and bodies listed in section 8 of that Act, be made to the Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit (TAU) of the DPSA. The TAU therefore maintains a database of matters so referred.
(b) Protected disclosures may be made to other bodies provided for under the Protected Disclosures Act.
End