Draft Regulations Relating To Protected Disclosures Published For Comment14 May 2018
"The object of the draft regulations is to protect an employee or worker, whether in the private or the public sector, from being subjected to an “occupational detriment” because he or she has made a protected disclosure."
On 20 April 2018, the Department of Justice and Constitutional Development invited members of the public to submit comments on the proposed draft Regulations Relating to Protected Disclosures (the draft regulations). The draft regulations were published in GN 41581 of 20 April 2018 and members of the public are invited to submit comments on or before 21 May 2018.
Who is affected?
The object of the draft regulations is to protect an employee or worker, whether in the private or the public sector, from being subjected to an “occupational detriment” because he or she has made a protected disclosure.
Section 8) of the Protected Disclosures Act, 2000 (Act No. 26 of 2000) deals with the persons and bodies to whom protected disclosures may be made. It was amended last year to provide that a protected disclosure may be made by an employee or worker to:
- the Public Protector;
- the South African Human Rights Commission;
- the Commission for Gender Equality;
- the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities;
- the Public Service Commission;
- the Auditor –General; or
- a person or body prescribed by regulation for purposes of section 8 of the Act.
Prior to the amendment, a protected disclosure in terms of section 8 of the Act could only be made to the Public Protector or the Auditor -General and a person or body prescribed by regulation for purposes of section 8 of the Act.
A Report from the South African Law Reform Commission, Project 123 with regards to Protected Disclosures was used as a starting point for deciding which other persons or bodies should be included in the list above by regulations. The report recommended that in addition to the proposals contained in the discussion paper and the proposals received from respondents, the Department should give consideration to the inclusion of persons or bodies to whom disclosures may be made in terms of other legislation.
The draft regulations, therefore, provide a list of additional persons and bodies to whom disclosures may be made. These lists are included in Annexures A and B to the draft regulations. Each annexure contains two columns: one indicating the person or body to whom a disclosure can be made and another indicating the corresponding conduct which can be disclosed.
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