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Whistleblowing policy and procedure

1 SUGGESTED POLICY GUIDELINES FOR INTERNAL DISCLOSURE

1.1
WHISTLEBLOWING POLICY
1.1.1
WHISTLEBLOWING PROCEDURES
1.1.2
RAISING CONCERNS
1.1.3
RESPONSIBILITY FOR DEALING WITH CONCERNS
1.1.4
TIMESCALES FOR DEALING WITH CONCERNS
1.1.5
PROTECTION FOR THE STAFF
1.1.6
COMMUNICATION AND REVIEW OF PROCEDURES
1.2
ANNEXURE A

1
2
2
3
4
4
6
7

2 NO, 26 OF 2000: PROTECTED DISCLOSURES ACT, 2000.

3 EMPLOYMENT LAW CASES RELATING TO DISCLOSURE OF INFORMATION

1.1

15

Suggested policy guidelines for internal disclosure

WHISTLEBLOWING POLICY

Members of staff are usually amongst the first to realise that there may be some
unlawful or irregular conduct by the Company or other employees in the employ of
the Company. However, they may not express their concerns because they feel that
speaking up would be disloyal to their colleagues or to their employer. They may also
fear harassment or victimisation. In these circumstances, it may be easier to ignore
the concern rather than report what may just be a suspicion of malpractice or
unlawful or irregular conduct.
This view is also sometimes reinforced by the negative connotations associated with
"whistleblowing", a term used to describe the reporting of irregular or illegal conduct
by the Company or other employees.
Even so, the immense harm which can be done not only to the Company but to other
employees and other stakeholders by failing to disclose such conduct has been
demonstrated in recent high profile corporate collapses, such as the recent Enron

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case. On the other hand regulating the disclosure of possible irregular or illegal
conduct is equally important to ensure that the reputation and public image of the
Company or character and reputation of individual employees is not damaged
through disclosure of alleged irregular or illegal conduct which may turn out to be
false, unsubstantiated or misleading.
Therefore, the Company recognises the need for and importance of whistleblowing
as a means of ensuring that staff can raise issues of concern and conscience
confidentially inside the organisation, and to encourage members of staff to raise
genuine concerns about malpractice at the earliest practicable stage.
This policy and procedure is, accordingly, intended to provide a safeguard to enable
members of staff to raise concerns about one or more of the following examples as
set out in The Protected Disclosures Act [Act No. 26, 2000]

that a criminal offence has been committed, is being committed, or is likely to be


committed;
that a person has failed, is failing or is likely to fail to comply with any legal
obligation to which that person is subject;
that a miscarriage of justice has occurred, is occurring or is likely to occur;
that the health and safety of any individual has been, is being or is likely to be
damaged. [It must indicate a greater danger than is associated with the normal
use of the process/product, or a danger that is not usually associated with it];
that the environment has been, is being or is likely to be damaged;
unfair discrimination as contemplated in the Promotion of Equality and
Prevention of Unfair Discrimination Act, 2000 (Act No, 4 of 2000); or
that information tending to show any matter falling within any one of the
preceding examples has been, is being or is likely to be deliberately concealed.

Subsequent amendments of these Whistleblowing Procedures will be developed in


consultation with the recognised Trade Unions and members of staff will also be
invited to contribute to their development.
1.1.1

WHISTLEBLOWING PROCEDURES

1.1.2

RAISING CONCERNS

Any person wishing to raise concerns, in a confidential manner, about such matters
as fraud and financial irregularities; serious maladministration arising from deliberate
improper conduct; miscarriages of justice; failure to comply with legal obligations;
unethical activities that may be of a criminal nature; or dangerous acts or omissions
that create a risk to health, safety or the environment within the sphere of activities of
the Company, should report the matter to the [specify person in the Company to whom
report must be made]1. In the event that the concerns relate to the "Officer", they
should be reported to the [____________] of the Company.
1

Human Resources Director / Financial Director / Managing Director etc You may elect to nominate a
representative of an Audit Committee (if your company / organisation has such a committee) or to an
external party designated for this purpose. For purposes of this draft policy, the title of "Officer" is
used.
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Appointed Officer2
Name
Address
Contact
Telephone
Email

:
:
:
:
:

_______________________________
_______________________________
_______________________________
_______________________________
_______________________________

It is important to recognise that whistleblowing is not a substitute for the Grievance


Procedure that is available to staff who have individual or collective complaints about
their management.
Concerns should normally be raised in writing using the form annexed to this policy,
but oral reports will also be accepted on the understanding that instances of
whistleblowing raised anonymously may not necessarily be investigated.
When raising your concern with the "Officer" you will be asked whether or not you
wish to make a written or verbal statement. In either case, the designated officer will
write a brief summary of the interview, which will be agreed by both parties. Where
you choose you can raise your concerns in writing. You should set out the
background and history of the concern, giving names, dates and places where
possible, and the reason why you are particularly concerned about the situation. If
you do not feel able to put your concern in writing at this point, you can telephone or
meet the appropriate officer. However, at some stage your concern will need to be
put in writing although you may do this through your representative.
You may wish to consider discussing your concern with a colleague first and you
may find it easier to raise the matter if there are two (or more) of you who had the
same experience or concerns. You may also wish to have a representative present
when lodging your concern.
1.1.3

RESPONSIBILITY FOR DEALING WITH CONCERNS

Responsibility for dealing with any concerns reported will lie with the "Officer" to the
Company who will have access to the members of the [Executive Committee /
Management Committee / Audit Committee / Governing Body]. Where members of the
"Governing Body" have individually been involved in an investigation, they shall be
excluded from later membership of any disciplinary panel that may be convened as
part of subsequent action under the Company's Disciplinary Procedure.
The "Officer", in consultation with members of the Governing Body shall have
discretion over the nature of investigation of the concern raised including, where it is
considered appropriate, the involvement of internal or external audit. If there is
evidence of criminal activity, the Police will be informed.
1.1.4

TIMESCALES FOR DEALING WITH CONCERNS

Your company may elect to set up an anonymous 086 reporting line in which these procedures may
need to be adapted to include details of this service.
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The "Officer" will endeavour to deal with reported concerns as quickly as possible.
Initially, the "Officer" will acknowledge, in a confidential manner, receipt of the
concern being raised. Because of the nature and type of concerns that may be
raised through whistleblowing, it is not possible to set time limits for the completion of
investigations.
However, the "Officer" will ensure that in all cases an initial
investigation will start within 5 working days of a concern being reported.
The Company will take all reasonable and practical steps to minimise any difficulties
which you may experience as a result of raising a concern. For instance, if it
becomes necessary to give evidence in criminal or disciplinary proceedings, the
Company will advise you about the procedure and give whatever practical support is
possible.
The Company accepts that you need to be assured that the matter has been
properly addressed. This feedback will normally be provided within five working days
of the outcome of the investigation being determined. Subject to legal constraints,
you will receive information about the outcomes of any investigations. This will not
include details of any disciplinary action which will remain confidential to the
individual(s) concerned.
The Officer will ensure that the person reporting the concern is advised in writing of
progress made in investigating the concern, and in particular:

acknowledge that the concern has been received


indicate how it proposes to deal with the matter
give an estimate of how long it will take to provide a final response
whether any initial enquiries have been made, and
you whether further investigations will take place, and if not, why not.

1.1.5

PROTECTION FOR THE STAFF

Staff will often be unsure as to whether or not misconduct is taking place. The
Company will take any steps necessary to ensure that those who raise concerns in
accordance with these procedures are protected from bullying or victimisation by
fellow workers.
A Member of Staff will never be disciplined for raising a concern so long as they
follow the Whistleblowing Procedure or make disclosures in accordance with the
Protected Disclosures Act (Act No, 26 of 2000). However, disciplinary action could be
taken if someone used the Whistleblowing Procedures to raise false concerns in bad
faith. The "Officer" shall decide whether disciplinary action is to commence save in
cases where such action relates to a senior postholder the decision shall be taken by
the Chair of the Board who shall then be precluded from any involvement in any
subsequent investigation or action under the Disciplinary Procedure following his/her
exercise of such decision.
The Company will regard a member of staffs actions as legitimate if they have:

followed the Whistleblowing Procedure;


acted in good faith and not for personal gain or out of personal motives;

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had reasonable grounds for believing that the information disclosed indicates the
existence of one or more of the following:
- that a criminal offence has been committed, is being committed, or is likely to
be committed;
- that a person has failed, is failing, or is likely to fail to comply with any legal
obligation to which they are subject;
- that a miscarriage of justice has occurred, is occurring or is likely to occur;
- that the health and safety of any individual has been, is being or is likely to be
damaged.
that information tending to show any matter falling within any one of the
preceding examples has been, is being or is likely to be deliberately concealed.

1.1.5.1

Untrue allegations

It is important to note that the protection extended to employees by the Protected


Disclosure Act is not unconditional. The Act sets the parameters of what constitutes
a protected disclosure, as well as the manner of permissible disclosure by workers.
The definition of disclosure clearly contemplates that it is only the disclosure of
information that either discloses or tends to disclose forms of criminal or other
misconduct that is the subject of protection under the Act. The disclosure must also
be made in good faith. An employee who deliberately sets out to embarrass or
harass an employer is not likely to satisfy the requirement of good faith.
"It does not necessarily follow though that good faith requires proof of the
validity of any concerns or suspicions that an employee may have, or even a
belief that any wrongdoing has actually occurred. The purpose of the PDA
would be undermined if genuine concerns or suspicions were not protected in
an employment context even if they later proved to be unfounded. There is no
doubt why disclosures made in general circumstances require in addition to
good faith a reasonable belief in the substantial truth of the allegation.
However more extensive the rights established by the PDA might be in the
employment context, I do not consider that it was intended to protect what
amounts to mere rumours or conjecture." (Communication Workers Union v
Mobile Telephone Networks (Pty) Limited (Labour Court) CASE NO.
JS803/03, per Van Niekerk AJ)
If you make an allegation in good faith, but it is not confirmed by the investigation, no
action will be taken against you. The Company will take all reasonable steps within
its powers to ensure that the employee suffers no reprisals. If, however, a person
makes an allegation frivolously, maliciously or for personal gain, disciplinary action
may be taken against the employee.
1.1.5.2

Role of trade unions

The Company recognises that employees may wish to seek advice and be
represented by their trade union(s) representatives when using the provisions of this
policy and acknowledges and endorses the role trade union officials play in this area.
1.1.5.3

DISCLOSURE BY STAFF OUTSIDE THE COMPANY

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Workers in general are subject to either an explicit or implied contractual term of


confidence and trust which seeks to prevent them from disclosing their employers
confidential information. The breach of this condition could be regarded as gross
misconduct which would justify summary dismissal.
All matters of concern must be raised internally in the first instance. The purpose of
this is to give the Company every chance to investigate and take appropriate action
before disclosure is in the public domain. Such disclosure would occur where staff
consider that disclosure within the Company is inappropriate or has been
unsuccessful. In such instances, employees or persons making disclosure outside
the Company are encouraged to do so in accordance with the provisions of the
Protected Disclosure Act.
1.1.6

COMMUNICATION AND REVIEW OF PROCEDURES

The Officer will ensure that the procedures have been widely distributed and
communicated to all staff and that appropriate staff and executive awareness
measures and activities are introduced by the Company. The Officer will report to the
Governing Body with regard to the effectiveness of these measures.

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1.2

ANNEXURE A

Disclosure in terms of the Protected Disclosure Act


To ensure that your disclosure is treated confidentially, please send this form to the
following person in a sealed envelope or where possible, hand deliver the form.
The completed form must be submitted to "Officer":
Appointed Officer
Name
Address
Contact
Telephone
Email

:
:
:
:
:

_______________________________
_______________________________
_______________________________
_______________________________
_______________________________

Please ensure that the "Officer" acknowledges receipt of this form and that you retain
a copy thereof for record purposes.
Personal Details
Name
Department
Confidential contact number

:
:
:

_______________________________
_______________________________
_______________________________

If you do not feel able to put your concern in writing at this point, you can telephone
or meet the appropriate officer. However, at some stage your concern will need to be
put in writing although you may do this through your representative
Set out following:Background and history of the concern, giving names, dates and places where
possible,
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
Specify the reason why you are particularly concerned about the situation.
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________

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Specify any specific concerns you may have regarding making this disclosure (for
example, fear of victimisation or other occupational detriment) and what the
Company may do to ensure that you are afforded appropriate protection
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
This policy encourages you to put your name to your allegation. A concern
expressed anonymously is much less powerful and it is often difficult to amass
sufficient evidence and check it out. It is perhaps more likely that malicious
allegations will be made anonymously. You may be able to keep your identity
confidential without being anonymous. However, anonymous allegations will be
considered at the discretion of the Officer.
Name of complainant
______________
Name

___________________
Signature

_____________
Date

___________________
Signature

_____________
Date

Representative
______________
Name

Acknowledgment of receipt by "Officer"


______________
Name

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___________________
Signature

_____________
Date

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No, 26 of 2000: Protected Disclosures Act, 2000.

Act No. 26,2000 PROTECTED DISCLOSURES ACT, 2000


(English text signed by the president.)
(Assented to 1 August 2000.)
To make provision for procedures in terms of which employees in both the private and
the public sector may disclose information regarding unlawful or irregular conduct by
their employers or other employees in the employ of their employers; to provide for
the protection of employees who make a disclosure which is protected in terms of
this Act; and to provide for matters connected therewith.
PREAMBLE
Recognising ~ that

the-Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines
the rights of all people in the Republic and affirms the democratic values of human
dignity, equality and freedom;
section 8 of the Bill of Rights provides for the horizontal application of the rights in the Bill
of Rights, taking into account the nature of the right and the nature of any duty imposed
by the right;
criminal and other irregular conduct in organs of state and private bodies are detrimental
to good, effective, accountable and transparent governance in organs of state and open
and good corporate governance in private bodies and can endanger the economic
stability of the Republic and have the potential to cause social damage;

And bearing in mind that

neither the South African common law nor statutory law makes provision for mechanisms
or procedures in terms of which employees may, without fear of reprisals, disclose
information relating to suspected or alleged criminal or other irregular conduct by their
employers, whether in the private or the public sector;
every employer and employee has a responsibility to disclose criminal and any other
irregular conduct in the workplace;
every employer has a responsibility to take all necessary steps to ensure that employee~
who disclose such information are protected from-any reprisals as a result of such
disclosure;

And in order to

create a culture which will facilitate the disclosure of information by employees relating to
criminal and other irregular conduct in the workplace in a responsible manner by
providing comprehensive statutory guidelines for the disclosure of such information and
protection against any reprisals as a result of such disclosures;
promote the eradication of criminal and other irregular conduct in organs of state and
private bodies,

BE IT THEREFORE EN-ACTED by the Parliament of the Republic of South Africa, as


follows:.
Definitions
1. In this Act, unless the context otherwise indicates

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(i)

disclosure means any disclosure of information regarding any conduct of an


employer, or an employee of that employer, made by any employee who has reason
to believe that the information concerned shows or tends to show one or more of the
following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)

That a criminal offence has been committed, is being committed or is likely to be


committed;
that a person has failed, is failing or is likely to fail to comply with any legal
obligation to which that person is subject;
that a miscarriage of justice has occurred, is occurring or is likely to occur;
that the health or safety of an individual has been, is being or is likely to be
endangered;
that the environment has been, is being or is likely to be damaged;
unfair discrimination as contemplated in the Promotion of Equality and
Prevention of Unfair Discrimination Act, 2000 (Act No, 4 of 2000); or
that any matter referred to in paragraphs (a) to (f) has been, is being or is likely
to be deliberately concealed;

(ii)

employee means
(a)
any person, excluding an independent contractor, who works for another
person or for the State and who receives, or is entitled to receive, any
remuneration; and
(b)
any other person who in any manner assists in carrying on or conducting the
business of an employer;

(iii)

employer means any person


(a)
who employs or provides work for any other person and who remunerates or
expressly or tacitly undertakes to remunerate that other person; or
(b)
who permits any other person in any manner to assist in the carrying on or
conducting of his, her or its business, including any person acting on behalf of
or on the authority of such employer;

(iv)

impropriety means any conduct which falls within any of the categories referred to
in paragraphs (a) to (g) of the definition of disclosure, irrespective of whether or not

(a)
the impropriety occurs or occurred in the Republic of South Africa or
elsewhere; or
(b)
the law applying to the impropriety is that of the Republic of South Africa or of
another country;
Minister means the Cabinet member responsible for the administration of Justice;

(v)
(vi)

occupational detriment, in relation to the working environment of an employee,


means
(a)
being subjected to any disciplinary action;
(b)
being dismissed, suspended, demoted, harassed or intimidated;
(c)
being transferred against his or her will;
(d)
being refused transfer or promotion;
(e)
being subjected to a term or condition of employment or retirement which is
altered or kept altered to his or her disadvantage;
(f)
being refused a reference. or being provided with an adverse reference, from
his or her employer;
(g)
being denied appointment to any employment, profession or office;
(h)
being threatened with any of the actions referred to paragraphs (a) to (g)
above; or

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10

(i)

being otherwise adversely affected in respect of his or her employment,


profession or office, including employment opportunities and work security;

(vii) organ of state means


(a) any department of state or administration in the national or provincial 60 sphere of
government or any municipality in the local sphere of
government; or.
(b) any other functionary or institution when
(i) exercising a power or performing a duty in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation;
(viii) prescribed means prescribed by regulation in terms of section 10;
(ix) protected disclosure means a disclosure made to(a) a Iegal adviser in accordance with section 5;
(b) an employer in accordance with section 6;
(c) a member of Cabinet or of the Executive Council of a province in accordance with
section 7;
(d) a person or body in accordance with section 8; or
(e) any other person or body in accordance with section 9,
but does not include a disclosure
(i) in respect of which the employee concerned commits an offence by making that
disclosure; or
(ii) made by a legal adviser to whom the information concerned was disclosed in the
course of obtaining legal advice in accordance with section 5; (iii)
(x) this Act includes any regulation made in terms of section 10.
Objects and application of Act
2. (1) The objects of this Act are
(a) to protect an employee, whether in the private or the public sector, from being subjected
to an occupational detriment on account of having made a protected disclosure;
(b) to provide for certain remedies in connection with any occupational detriment suffered on
account of having made a protected disclosure; and
(c) to provide for procedures in terms of which an employee can, in a responsible manner,
disclose information regarding improprieties by his or her employer,
(2) This Act applies to any protected disclosure made after the date on which this section
comes into operation, irrespective of whether or not the impropriety concerned has occurred
before or after the said date.
(3) Any provision in a contract of employment or other agreement between an employer and
an employee is void in so far as it
(a) purports to exclude any provision of this Act, including an agreement to refrain from
instituting or continuing any proceedings under this Act or any proceedings for breach of
contract; or
(b) (i) purports to preclude the employee; or
(ii) has the effect of discouraging the employee, from making a protected disclosure.
Employee making protected disclosure not to be subjected to occupational detriment
3. No employee may be subjected to any occupational detriment by his or her employer on
account, or partly on account, of having made a protected disclosure.
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11

Remedies
4. (]) Any employee who has been subjected, is subject or may be subjected, to an
occupational detriment in breach of section 3, may
(a) approach any court having jurisdiction, including the Labour Court established by section
15 I of the Labour Relations Act, 1995 (Act No. 66 of 1995), for appropriate relief or
(b) pursue any other process allowed or prescribed by any law.
(2) For the purposes of the Labour Relations Act, 1995, including the consideration of any
matter emanating from this Act by the Labour Court
(a) any dismissal in breach of section 3 is deemed to be an automatically unfair dismissal as
contemplated in section 187 of that Act, and the dispute about such a dismissal must follow
the procedure set out in Chapter VIII of that Act; and
(b) any other occupational detriment in breach of section 3 is deemed to be an unfair Iabour
practice as contemplated in Part B of Schedule 7 to that Act, and the dispute about such an
unfair labour practice must follow the procedure set out in that Part: Provided that if the
matter fails to be resolved through conciliation, it may be referred to the Labour Court for
adjudication.
(3) Any employee who has made a protected disclosure and who reasonably believes that
he or she may be adversely affected on account of having made that disclosure, must, at his
or her request and if reasonably possible or practicable, be transferred from the post or
position occupied by him or her at the time of the disclosure to another post or position in the
same division or another division of his or her employer or, where the person making the
disclosure is employed by an organ of state, to another organ of state.
(4) The terms and conditions of employment of a person transferred in terms of subsection
(2) may not, without his or her written consent, be less favorable than the terms and
conditions applicable to him or her immediately before his or her transfer.
Protected disclosure to legal adviser
5. Any disclosure made
(a) to a legal practitioner or to a person whose occupation involves the giving of legal advice;
and
(b) with the object of and in the course of obtaining legal advice, is a protected disclosure.
Protected disclosure to employer
6. (1) Any disclosure made in good faith
(a) and substantially in accordance with any procedure prescribed, or authorised by the
employees employer for reporting or otherwise remedying the impropriety concerned; or
(b) to the employer of the employee, where there is no procedure as contemplated in
paragraph (a), is a protected disclosure.
(2) Any employee who, in accordance with a procedure authorised by his or her employer,
makes a disclosure to a person other than his or her employer, is deemed, for the purposes
of rhis Act, to be making the disclosure to his or her employer.
Protected disclosure to member of Cabinet or Executive Council
7. Any disclosure made in good faith to a member of Cabinet or of the Executive Council of a
province is a protected disclosure if the employees employer is
(a) an individual appointed in terms of legislation by a member of Cabinet or of the Executive
Council of a province;
(b) 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
(c) an organ of state falling within the area of responsibility of the member concerned.
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12

Protected disclosure to certain persons or bodies


8. (1) Any disclosure made in good faith to
(a) the Public Protector;
(b) the Auditor-General; or
(c) a person or body prescribed for purposes of this section; and in respect of which the
employee concerned reasonably believes that
(i) the relevant impropriety falls within any description of matters which, in the ordinary
course are dealt with by the person or body concerned: and
(ii) the information disclosed, and any allegation contained in it, are substantially true, is a
protected disclosure.
(2) A person or body referred to in, or prescrtbed in terms of, subsection(1) who is of the
opinion that the matter would be more appropriately dealt with by another person or body
referred to in, or prescribed in terms of, that subsection, must render such assistance to the
employee as is necessary to enable that employee to comply with this section.
General protected disclosure
9. (1) Any disclosure made in good faith by an employee
(a) who reasonably believes that the information disclosed, and any allegation contained in
it, are substantially true; and
(b) who does not make the disclosure for purposes of personal gain, excluding any reward
payable in terms of any law;
is a protected disclosure if
(i) one or more of the conditions referred to in subsection (2) apply; and
(ii) in all the circumstances of the case, it is reasonable to make the disclosure.
(2) The conditions referred to in subsection (1)(i) are
(a) that at the time the employee who makes the disclosure has reason to believe that he or
she will be subjected to an occupational detriment if he or she makes a disclosure to his or
her employer in accordance with section 6;
(b) that, in a case where no person or body is prescribed for the purposes of section 8 in
relation to the relevant impropriety, the employee making the disclosure has reason to
believe that it is likely that evidence relating to the impropriety will be concealed or destroyed
if he or she makes the disclosure to his or her employer
(c) that the employee making the disclosure has previously made a disclosure of
substantially the same information to
(i) his or her employen or
(ii) a person or body referred to in section 8, in respect of which no action was taken within a
reasonable period after the disclosure; or
(d) that the impropriety is of an exceptionally serious nature.
(3) In determining for the purposes of subsection (1 )(ii) whether it is reasonable for the
employee to make the disclosure, consideration must be given to(a) the identity of the person to whom the disclosure is made;
(b) the seriousness of the impropriety;
(c) whether the impropriety is continuing or is likely to occur in the future;
(d) whether the disclosure is made in breach of a duty of confidentiality of the employer
towards any other person;
(e) in a case falling within subsection (2)(c), any action which the employer or the person or
body to whom the disclosure was made, has taken, or might reasonably be expected to have
taken, as a result of [he previous disclosure;
(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the
employer the employee complied with any procedure which was authorised by the employer
and
(g) the public interest.
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(4) For the purposes of this section a subsequent disclosure may be regarded as a
disclosure of substantially the same information referred to in subsection (2)(c) where such
subsequent disclosure extends to information concerning an action taken or not taken by
any person as a result of the previous disclosure.
Regulations
10. (1) The Minister may, after consultation with the Minister for the Public Service and
Administration, by notice in the Gazette make regulations regarding
(a) for the purposes of section 8(1), matters which, in addition to the legislative provisions
pertaining to such functionaries, may in the ordinary course be referred to the Public
Protector or the Auditor-General, as the case may be;
(b) any administrative or procedural matter necessary to give effect to the provisions of this
Act; and
(c) any other matter which is required or permitted by this Act to be prescribed.
(2) Any regulation made for the purposes of section 8(I)(c) must specify persons or bodies
and the descriptions of matters in respect of which each person or body is prescribed.
(3) Any regulation made in terms of this section must be submitted to Parliament before
publication thereof in the Gazette.
(4) (a,) The Minister must, after consultation with the Minister for the Public Service and
Administration, issue practical guidelines which explain the provisions of this Act and all
procedures which are available in terms of any law to employees who wish to report or
otherwise remedy an impropriety.
(b) The guidelines referred to in paragraph (a) must be approved by Parliament before
publication in the Gazette.
(c) All organs of state must give to every employee a copy of the guidelines referred to in
paragraph (a) or must take reasonable steps to bring the relevant notice to the attention of
every employee.
Short title and commencement
11. This Act is calIed the Protected Disclosures Act, 2000, and commences on a date 25
determined by the President by proclamation in the Gazette.

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Employment law cases relating to Disclosure of Information

IN THE LABOUR COURT OF SOUTH AFRICA


HELD AT JOHANNESBURG
CASE NO. JS803/03
In the matter between:
COMMUNICATION WORKERS UNION First Applicant
ITSHEGETSENG, S Second Applicant
And
MOBILE TELEPHONE NETWORKS (PTY) LIMITED Respondent
_______________________________________________________________
JUDGMENT
_______________________________________________________________
CORAM : A VAN NIEKERK AJ
[1] This is the return day of a rule nisi granted after an application was heard
unopposed and as a matter of urgency on 16 April 2003. In terms of the Order
granted on that date, the Respondent (to which I shall refer as MTN) was
interdicted from proceeding with disciplinary action against the Second Applicant
until the finalisation of this application. The substantive relief sought by the
applicants is that MTN be interdicted from proceeding with the disciplinary enquiry
pending the adjudication of the unfair labour practice dispute referred by the
applicants to the CCMA on 16 April 2003. The Applicants also seek an order in terms
of which the suspension of the Second Applicant be lifted pending the final
determination of the dispute.
[2] The Applicants seek the relief that they do on the basis that the Second
Applicants pending disciplinary hearing and the suspension are occupational
detriments in terms of the Protected Disclosures Act, 26 of 2000 (the PDA).
[3] The material facts giving rise to these proceedings are largely common cause.
The Second Applicant is currently employed by MTN as a supervisor in its business
improvement unit. Until some point in early 2003, a number of temporary
employment agencies supplied temporary staff to the units Gauteng office. In March
2003, it became apparent to the Second Applicant that in what he alleges constituted
a departure from previous practice, supervisors were given lists of applicants to
interview, the overwhelming majority of whom were supplied by Thlalefang.
[4] On 1 April 2003, a meeting was convened between Mr Innocent Shandu, the
manager of the customer services unit, and the supervisors engaged in that unit. At
some point during the general meeting, at which other supervisors and members of
management were present, the Second Applicant raised an allegation concerning
the preferential treatment of Thlalefang, and was advised to refer the matter to the
Business Risk Unit.

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[5] On 4 April 2003, the Second Applicant circulated an e-mail to a group of persons,
some of whom had attended the meeting on 1 April 2003. The email is the
communication relied on by the Applicants as a protected disclosure, and for that
reason, it is quoted in full Hi Moosa/Norman
I would like to raise a open secret concern to your office. In December MTN 173 GP
has recruited an number of staff via the following Agencies who are proffered
suppliers, Thlafang, Hola, NAPS, Ikwesi and Quest. From this recruitment we saw
most of Naps, and Hola and Kwesi people coming through but NAPS was leading
the pack. All agencies had Intakes coming through nevertheless, but I should say
upfront that except for Hola and NAPS, the agencies representatives where no
where to be seen on the day of the recruitment. We had Kopano from Thlalefang
continuously calling Vusimusi Masilela about how many candidates where taken
from each agency, and after this disturbing situation we where told that there is a
supervisor or supervisors who gave NAPS a scandal to have their agents taken in
large numbers and some should come forward and confess to avoid any sanction.
We later told that an investigation is going forth. That is fine and has been accepted
by all of us. But what is surprising that Thlalefang has been having 100% of its
candidates being taken all over CS from KZN, PLK to GP. No such investigation
were conducted against supervisors, no concerns were raised by other agencies
about how many recruits from each agency was done by individual agencies and
business business risk was never brought to see this abnormality. We have currently
recruited last week agents from Thlalefang only and they are now in training, the
issue here is is this not bias shown to one agency, if so why. Should other agencies
suffer because Tlhaklefang did not do a proper job on their candidates the last time?
If so why is the same not done to other agencies in PLK, and KZN where
Thlalegfang is in a big number. The person or persons who lodged a complain, why
are they not complaining now. Who are these faceless complainants?
Personally I smell a rat and think that there are senior people senior than us, who
are losing revenue if Thlalefang is not placing agents at MTN thus the justification
not to make staff permanent. They want to continue being fat cats and eating. This
email is prompted by the meeting we had as supervisors and management to raise
issues of concern in running our business. It was noted in that meeting that this
email shall be sent out to raise these issues. I propose a large scale investigation on
the issue of agencies and I please let this be noted that if it not handled properly the
scorpions maybe engaged to conduct and investigation.
[6] The persons who whom the e-mail was addressed are engaged in MTNs
Business Risk Unit. It is not disputed that these persons aside, the e-mail was
circulated to persons who had attended the meeting held on 1 April 2003 and
blindcopied to other MTN employees, including the Chief Executive Officer and the
Commercial Director.
[7] On 7 April 2003, the Second Applicant, having received no response to his e-mail
sent on 4 April, sent a second e-mail.
[8] On 11 April 2003, the Second Applicant was handed a notice of suspension, and
advised that he would be required to attend a disciplinary hearing on 17 April 2003.
On 14 April 2003, a charge sheet was handed to the Second Applicant. The charges
against him are recorded as
1. That you intentionally, deliberately circulated an e-mail insinuating that
management of MTN are corrupt and/or colluding with various employment agencies
in corrupt activities.

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2. That you intentionally, deliberately and disrespectfully engaged in abusive and


insulting language in that you insinuated management of MTN as Fat Cats.
3. That you made unfounded allegations against management in that you circulated
an e-mail alleging that management is benefiting from recruitment processes.
Through conspiracy, bribery underhanded dealings with various recruitment
agencies.
4. That you brought the companys image into disrepute in that you circulated an email to MTN employees, which e-mail contained derogatory remarks, allegations of
corruption.
5. That you intentionally and deliberately conducted yourself in gross insubordination
and insolence in that you circulated an e-mail containing derogatory remarks against
MTN Management and its clients.
6. That you abused company tools of trade and privileges given to you for purposes
of work in that you used the same tool to circulate an e-mail to MTN employees,
which e-mail has exposed the company to a huge civil suite by some of its clients.
[9] On 16 April 2003 the Applicants initiated urgent proceedings in this Court, and the
rule that is the subject of the proceedings was granted.
[10] The crisp issue that the Court is required to decide is whether for the purposes
of these proceedings, the Second Applicants communications constitute a protected
disclosure as defined by the PDA. That in essence is the right on which the
Applicants rely to obtain the interdictory relief they seek.
[11] It was not disputed that the Court has the power to grant interdictory relief.
Section 4 (1) of the PDA provides that any employee who has been subjected, is
subject or may be subjected to an occupational detriment in breach of the statute
may approach this Court for appropriate relief. This Court is entitled by virtue of
section 158 (1) inter alia to grant urgent interim relief, interdicts and orders directing
the performance of any particular act.
[12] The test to be applied in determining was the subject of dispute. Mr Orr, who
appeared for the Applicants, submitted that the test to be applied was that relevant to
an interim interdict, which required the applicants to establish inter alia a clear right
or a prima facie right, although open to some doubt. The approach adopted by this
court to determine an applicants right to interim relief is well established. In Spur
Steak Ranches Ltd v Saddles Steak Ranch 1996 (3) SA 706 at 714-B, the approach
commonly applied in this Court, was summarised. This requires an applicant to
establish a clear right or a right prima facie established though open to some doubt,
a well grounded apprehension of irreparable harm, a balance of convenience in
favour of the granting of interim relief, and the absence of any other satisfactory
remedy. The threshold test is the requirement of a prima facie right established
though open to some doubt. Although this is often stated as a single requirement the
enquiry involved two stages, once the prima facie right has been assessed, that part
of the requirement which refers to doubt involves a further enquiry in which the Court
looks at the facts set up by the Respondents in contradiction with the Applicants
case, and if there is a near contradiction or an unconvincing explanation, then the
right will not be protected. If however, there is serious doubt, the applicant can not
succeed (see Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 and Landman and
Van Niekerk Practice in the Labour Courts A-18 to A-21).
[13] On the other hand, the requirements for a final interdict require the applicant to
establish a clear right, an injury actually committed or reasonably apprehended, and
the absence of similar protection by any other ordinary remedy. A final interdict
should only be granted in motion proceedings if the facts stated by the Respondent

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together with the admitted facts in the Applicants affidavits justifies such an order,
unless the Court is justified in rejecting the allegations or denials by the Respondent
on the papers. (See Plascon-Evans Paints v Van Riebeek Paints 1984 (3) SA 623(A)
at 634-F to 635-D.).
[14] Mr Pretorius SC, who appeared for MTN, submitted that the order sought by the
Applicant was in effect a final interdict, albeit one that would operate for a limited
period. It was consequently necessary, he submitted, for the Applicants to satisfy the
test established by Plascon-Evans. A final interdict is a final determination of the
rights of the parties. It is intended to secure the permanent cessation of an unlawful
course of conduct. The Second Applicant has been suspended and has been notified
that he is to attend a disciplinary enquiry. These actions are the subject of the referral
of a dispute to the CCMA, and may well be referred to this Court in due course if
conciliation fails to resolve the dispute. In that sense, these proceedings are not
directed at a final determination of the rights of the parties. However, if the order
sought by the Applicants were to be granted, MTN would be precluded from
proceeding with a disciplinary enquiry on the basis that the threat of an enquiry had
been found to constitute an occupational detriment. In that sense, the order sought
by the Applicants would amount to a final declaratory order to the effect that the
Second Applicant has suffered an occupational detriment consequent on a
disclosure that is protected by the PDA, even if it is only to operate pending a final
determination by this Court of an unfair labour practice dispute. Be that as it may, I
intend to deal with the matter as an application for an interim interdict and to apply
the approach in Webster v Mitchell.
[15] Section 4 of the PDA provides that for the purposes of the Labour Relations Act,
66 of 1995 (the LRA) any dismissal in breach of the requirement that employees
may not be subject to an occupation detriment by an employer, is an automatically
unfair reason for dismissal. Any other occupational detriment in breach of the same
obligation is deemed to be an unfair labour practice for the purposes of the same
Act. With effect from 1 August 2002, the LRA was amended to incorporate these
provisions into Chapter VIII of that statute.
[16] An occupational detriment is defined in section 1 of the PDA. In relation to the
working environment of an employee, the definition includes being subject to any
disciplinary action, or being dismissed, suspended, demoted, harassed or
intimidated, or being threatened with any of these actions.
[17] Disclosure is also defined in section 1 of the PDA. The definition reads as
follows disclosure means any disclosure of information regarding any conduct of an
employer, or an employee of that employer, made by any employee who has reason
to believe that the information concerned shows or tends to show one or more of the
following:
(a) That a criminal offence has been committed, is being committed or is likely to be
committed;
(b) that a person has failed, is failing or is likely to fail to comply with any legal
obligation to which that person is subject;
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur; .
(d) .
[18] Section 6 of the PDA protects employees who make protected disclosures to
their employers. Subsection (1) reads as follows Any disclosure made in good faith-

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(a) and substantially in accordance with any procedure prescribed, or authorised by


the employees employer for reporting or otherwise remedying the impropriety
concerned; or
(b) to the employer of the employee, where there is no procedure as contemplated in
paragraph (a).
[19] If a disclosure is made to an employer in terms of section 6 of the PDA, a
number of conditions must be satisfied before that disclosure can be protected. The
person claiming the protection must be made by a person who is an employee. The
employee must have reason to believe that information in his or her possession
shows, or tends to show, the range of conduct that forms the basis of the definition of
disclosure. The employee must make the disclosure in good faith. If there is a
prescribed procedure or a procedure authorised by the employer for reporting or
remedying any impropriety, then there must be substantial compliance with that
procedure. If there is no procedure that is either prescribed nor authorised, the then
the disclosure must be made to the employer. If any procedure authorised by the
employer permits the making of a disclosure to a person who is not the employer, the
employer is deemed to have made the disclosure. Finally, it seems to me that there
ought to be some nexus between the disclosure and the detriment. I dont think that
it is necessary, as Mr Pretorius implied, that the detriment be directly linked to the
disclosure in the sense that an employee would be entitled to a remedy if and only if
the detriment threatened or applied by the employer is so threatened or applied
expressly for the making of a disclosure. This would permit unscrupulous employers
to create pretexts upon which to effect occupation detriments and undermine the
purpose of the PDA. Provided that there is some demonstrable nexus between the
making of the disclosure and the occupational detriment threatened or applied by the
employer, the protections of the PDA should apply.
[20] I agree with the observation by Pillemer AJ in Grieve v Denel (Pty) Ltd (2003) 24
ILJ 551 (LC) that the PDA seeks to encourage a culture of whistle blowing. The
Preamble to the PDA records that it is incumbent on every employer an employee to
disclose criminal or irregular conduct in the workplace, and that employees should
be protected against reprisals as a result of such disclosures. Good, effective and
transparent governance by employers is obviously in the broader social interest and
employees should be encouraged, without fear of reprisal, to disclose information
relating to suspected criminal and other irregular conduct by their employers. It is not
insignificant that the PDA was originally conceived as an integral part of the Open
Democracy Bill.
[21] However, as I have noted, the protection extended to employees by the PDA is
not unconditional. The PDA sets the parameters of what constitutes a protected
disclosure, as well as the manner of permissible disclosure by workers. The
definition of disclosure clearly contemplates that it is only the disclosure of
information that either discloses or tends to disclose forms of criminal or other
misconduct that is the subject of protection under the PDA. The disclosure must also
be made in good faith. An employee who deliberately sets out to embarrass or
harass an employer is not likely to satisfy the requirement of good faith. It does not
necessarily follow though that good faith requires proof of the validity of any
concerns or suspicions that an employee may have, or even a belief that any
wrongdoing has actually occurred. The purpose of the PDA would be undermined if
genuine concerns or suspicions were not protected in an employment context even if
they later proved to be unfounded. There is no doubt why disclosures made in
general circumstances require in addition to good faith a reasonable belief in the

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substantial truth of the allegation. However more extensive the rights established by
the PDA might be in the employment context, I do not consider that it was intended
to protect what amounts to mere rumours or conjecture.
[22] I am satisfied that in this instance, the Second Applicants communications on 4
and 7 April 2003 fail to meet the conditions for protection established by the PDA.
The disclosure relied on by the Second Applicant as a protected disclosure was no
more than an expression of a subjectively held opinion or an accusation, rather than
a disclosure of information. It is clear from the judgment in Grieve v Denel that the
disclosure considered worthy of protection in that instance was a disclosure of
information that on a prima facie basis at least, was both carefully documented and
supported. The disclosure was clearly indicative of a breach of legal obligations and
possibly criminal conduct on the part of the employer concerned. In the present
instance, the only information proffered by the Second Applicant (and this was
conceded by his counsel) was that contained in his email dated 4 April 2003, and in
particular his statement to the effect that Thlalefang was being used as a sole
agency to supply temporary employees. There is no factual basis, however tenuous,
in any of the Second Applicants communications to justify the conclusion that they
constituted anything other than his personal opinion that what appears to amount to
a preferred supplier arrangement was improper. There is no information offered that
indicates in the slightest any impropriety on the part of any member of MTNs
management. The statement
Personally, I smell rat and think that there are people senior than us who are losing
revenue if Thalefang is not placing agents at MTN and thus the justification not to
make staff permanent.
is not a disclosure of information rather than an unfortunately phrased expression of
the Second Applicants personal views.
[23] A further relevant consideration is the fact that the information (such as it was)
contained in the Second Applicants email had been communicated to a general
meeting prior to its transmission on MTNs computer network. The PDA
contemplates and protects disclosures made in private rather than in public. This is
obvious given the potential damage to the reputation of persons against whom
allegations are made, an and integral element of the balance between the protection
of rights to reputations and the protection of free speech in the workplace.
[24] Finally, there is the related matter of the procedure adopted by the Second
Applicant in making the disclosure on which he relies. The PDA seeks to balance an
employees right to free speech, on a principled basis, with the interests of the
employer. The requirement that a disclosure be made through an authorised channel
is an integral element in structuring this balance. The PDA accordingly establishes
as a condition for protection that a disclosure be made in accordance with a
procedure that is either established or authorised. The evidence in these
proceedings discloses the establishment by MTN of an elaborate system for the
reporting of allegations of fraud, including a confidential hot line. Commendable as
the procedures established by MTN might be, it is not disputed that the Second
Applicant was advised at the meeting held on 1 April 2003 that he should raise the
matter of the alleged preference accorded to Thalefang with the Business Risk Unit.
The Second Applicant sought a wider audience. He addressed his email to his peers
and members of MTNs senior management. As I have noted above, the requirement
of disclosure through an authorised channel is an important component of the
protection accorded to whistleblowers. There is a difference between the nature and
extent of the protections afforded to internal as opposed to external disclosure. As I

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20

have noted above, an internal disclosure does not require a reasonable belief that
the information disclosed tends to show that any wrongdoing has occurred. A
reasonable belief that any allegation is substantially true is a condition for the
protection of any external disclosure. By requiring substantial compliance with a
prescribed or an authorised procedure, if information disclosed by an employee turns
out to be unfounded, little if any damage will have been done to the external
reputation of the employer or persons against whom allegations have been made. By
failing to comply with the procedure prescribed and/or authorised by MTN for the
further investigation of his allegations, the Second Applicant removed himself from
the ambit of the protection granted by the PDA.
[25] The statements that the Applicants submit constitutes a protected disclosure do
not, for the purposes of these proceedings and on the papers before me, constitute a
protected disclosure contemplated by the PDA. This is not to say that for the purpose
of any unfair labour practice proceedings, after the leading of evidence that is
subjected to cross-examination, a different conclusion might not be justified. For the
purposes of this application however, the Applicants have failed to establish a clear
right, even one that is open to some doubt.
[26] I make the following order:
1 The Rule Nisi issued on 16 April 2003 is discharged, with costs.
________________________________
ANDRE VAN NIEKERK
Acting Judge of the Labour
Date of hearing: 8 May 2003
Date of judgment: 26 May 2003
Counsel for Applicant: Mr C Orr
Attorneys for Applicant: Cheadle Thompson Haymsom Inc
Counsel for Respondent: Mr P Pretorius SC
Mr K Lengane
Attorneys for Respondent: Webber Wentzel Bowens

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Subscription to Workinfo.com for R820, 80 (including VAT) per annum (which includes those
electronic products marked with * listed below)

Subscription to Caselaw.co.za for R820, 80 (including VAT) per annum


Manuals (please tick selection below)
Please send me more information as indicated below

All orders will be confirmed prior to Invoicing. All prices inclusive of VAT. Discounts are available for
multiple subscriptions.

Electronic Manuals & Courses


* Human Resources Policies and Procedure Manual
* Employment Equity Implementation Manual

Electronic
R1 482.00
R1 140.00

Workplace Communications Manual


Workplace Violence Awareness & Prevention Course
Digest of Disciplinary Offences

R1 710.00

* Pro Forma Employment Equity Plan Guidelines for developing an

R 682.86

in-house equity plan


Line-Ups a daily communication tool for managers
Supervisory Interpersonal Skills transactional analysis based course
providing supervisors with practical communication skills
* HIV / AIDS Awareness & Prevention
* Smoking & TB Awareness & Prevention
* Alcohol in the Workplace
Seminars, Surveys & Newsletters
Wage Negotiation Settlement Workshop (In-house or public)
Please send me information on upcoming seminars

* Workinfo.com's Annual Human Resources Salary Survey


* Workinfo.com's Wage Negotiation Settlement Survey
* Workinfo.com Human Resources Electronic Newsletter

2004, Workinfo.com

Workinfo.com www.workinfo.com

R5 700.00
R 228.00

R5 700.00
R5 700.00
R 682.86
R 682.86
R 682.86

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Workplace Performance Technologies (Pty) Ltd


Reg. No. 98 01552/07
Vat Reg. No. 4450172582
PO Box 1029
Melville
Gauteng 2109

Sales & Customer Service


Elaine Olivier
Tel: 031 - 563 0328
Cel: 082 757 5171
Email: elainewpt@global.co.za
Consulting Support

Tel: 012 669 0524


Fax: 012 669 0186
Websites
URL: http://www.workinfo.com
URL: http://www.caselaw.co.za
URL: http://www.consultdirect.co.za

Gary Watkins
Tel: 012 - 669 0524
Fax: 012 - 669 0186
Cel: 082 416 7712
Email: radwat@global.co.za

Banking Details:
Company: Workplace Performance Technologies (Pty) Ltd
Bank: Nedbank
Branch: Musgrave
Acc. No.: 1301 196 088
Branch Code:1301 26 10
Account: Cheque
Referral G Watkins

2004, Workinfo.com

Workinfo.com www.workinfo.com

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