Amendment of section 9 of Act 26 of 2000
Section 9 of the principal Act is hereby amended—
(a) by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:
‘‘Any disclosure made in good faith by an employee or worker—’’;
(b) by the substitution for subsection (2) of the following subsection: ‘‘(2) The conditions referred to in subsection (1)(i) are—
(a) that at the time the employee or worker 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 or worker 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 or worker making the disclosure has previously made a disclosure of substantially the same information to—
(i) his or her employer; 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.’’;
(c) by the substitution in subsection (3) for the words preceding paragraph (a) of the following words:
‘‘In determining for the purposes of subsection (1)(ii) whether it is reasonable for the employee or worker to make the disclosure, consideration must be given to—’’; and
(d) by the substitution in subsection (3) for paragraph (f) of the following paragraph: ‘‘(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the employee or worker complied with any procedure which was authorised by the employer; and’’.
Insertion of sections 9A and 9B in Act 26 of 2000
The following sections are hereby inserted after section 9 of the principal Act: ‘‘Exclusion of civil and criminal liability
9A. (1) A court may find that an employee or worker who makes a protected disclosure of information— 10
(a) referred to in paragraph (a) of the definition of disclosure; or
(b) which shows or tends to show that a substantial contravention of, or failure to comply with the law has occurred, is occurring or is likely to occur, shall not be liable to any civil, criminal or disciplinary proceedings by reason of having made the disclosure if such disclosure is prohibited by any other law, oath, contract, practice or agreement requiring him or her to maintain confidentiality or otherwise restricting the disclosure of the information with respect to a matter.
(2) Exclusion of liability as contemplated in subsection (1) does not extend to the civil or criminal liability of the employee or worker for his or her participation in the disclosed impropriety.
Disclosure of false information
1) An employee or worker who intentionally discloses false information—
(a) knowing that information to be false or who ought reasonably to have known that the information is false; and
(b) with the intention to cause harm to the affected party and where the affected party has suffered harm as a result of such disclosure, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment.
(a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the Director of Public Prosecutions.
(b) The Director of Public Prosecutions concerned may delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.’’.