The Committee discussed clause 9(b) of the Protected Disclosures Amendment Bill, which seeks to criminalise intentional, false disclosures that result in harm. Opinion was divided, with DA and ACDP members opposed, and ANC members in support. Members opposed to criminalisation argued that it would discourage whistleblowers because of job insecurity, the high unemployment rate, and unequal power relations arising from institutionalised corruption. They argued that if the burden of ascertaining the correctness of disclosed information is placed on whistleblowers, it will defeat the purpose of the Bill, thereby discouraging disclosure. They proposed alternatives to criminalisation such as internal disciplinary measures and civil law remedies for reputational damage.
Members in favour of criminalisation argued that it will encourage truthful, responsible disclosure, bring a balance to the Act, and guard against reputational damage arising from malicious disclosure. They further argued that non-criminalisation would open a grey area in legislation and create unfairness to victims of false disclosures.
The Open Democracy Advice Centre noted that the purpose of whistleblowing is to bring attention to honest beliefs of wrongdoing. Statistics show that the number of whistleblowers is dropping because the law does not properly protect them. This is the main purpose of this Bill. Section 9(b) could defeat this aim. The majority of whistleblowers are good people.
Members decided to ponder the matter overnight and resolve it tomorrow.
Protected Disclosures Amendment Bill: deliberations
Mr Lawrence Basset, Chief Director: Legislative Development, DoJ&CD, stated that the Working Draft of the Protected Disclosures Amendment Bill has been circulated to members. He called on Mr du Preez to present the document.
Mr Henk du Preez, State Law Adviser, pointed out concerns raised by the South African Reserve Bank, the Open Democracy Advice Centre (ODAC), Corruption Watch, and the Congress of South African Trade Unions. These concerns relate to the addition of worker to the definition of employee, and amendments to protected disclosure, disclosure bodies, exclusion of civil and criminal liability, and criminalisation of false disclosures. These matters are highlighted on pages 3, 4, 7-12 of the working document.
Mr Basset reminded the Committee of three outstanding issues to be resolved. The first is clause 9(b) dealing with false disclosures. The second is incentives to persons who make disclosures. The third is making disclosures to bodies other than those in section 8 – that is the Commission for Gender Equality, the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Public Service Commission, and the South African Revenue Service. He pointed out that various organisations raised concerns on the merits and demerits of criminalising false disclosures.
Mr S Swart (ACDP) stated that organisations that appeared before the Committee during its public hearing expressed strong sentiments on incentivising disclosures. He opposed the criminalisation of false disclosures. He stated that people are afraid of losing their jobs and many workers have lost their lives because of whistleblowing. Accordingly, criminalising disclosures could have a chilling effect on whistleblowers. Moreover, criminalisation is not in line with international best practice. The alternatives to criminalisation are to use internal disciplinary mechanisms. There are also civil remedies for reputational damage caused by false disclosures. He concluded that there are sufficient mechanisms in the principal Act to take care of false disclosures.
The Chairperson asked if criminalisation would not discourage irresponsible disclosures.
Mr Swart responded that unemployment is high in South Africa. He restated that the Act has sufficient deterrence for false disclosures.
Ms G Breytenbach (DA) supported Mr Swart’s views. She added that criminalisation of whistleblowing is contradictory to the aims of the Act and criminal law legislation contains sufficient deterrence to false disclosures.
The Chairperson asked if non-criminalisation would not encourage people to make frivolous disclosures.
Ms Breytenbach disagreed, stating that disclosure bodies have a duty like the police to conduct preliminary investigations.
Ms C Pilane-Majake (ANC) argued that criminalisation of false disclosure is acceptable in a free and democratic society. It will encourage whistleblowers to be responsible and alert to the impact of false disclosures on victims. She stressed the need to prevent dishonest disclosures, giving examples of newspapers that publish false stories on front pages and only give small coverage to retractions. Legal recourse for false disclosures is expensive and difficult. Also, in civil cases, there have been cases of managers who were falsely accused but were hampered from instituting civil claims because of pressure that the public have a right to information. This explains why there are few cases of defamation in the courts. She concluded that the proposed section 9(b) will bring a balance to the Act and protect the reputation of people affected by false disclosures.
Mr L Mpumlwana (ANC) argued that deliberate disclosures of false information should be criminalised. He stated that section 9(b) is worded in a manner that protects people from harm resulting from false disclosures.
Mr W Horn (DA) countered Ms Pilaje-Majake’s suggestion that criminalisation would bring a balance to the Act. He argued that the Bill and the Act seek to balance whistleblowing. Whistle-blowers often face institutionalised corruption and criminality. Accordingly, criminalisation will put them at a serious disadvantage, as evidenced by submissions made during the public hearings. Further, if disclosure is made in bad faith, there should be no protection under the law. People must feel safe if they decide to make a disclosure. This does not mean that everything that is disclosed will be taken as fact. If disclosure is bad for some reason, the maker can be denied legal protection and be opened to civil claims for gross negligence and defamation. He restated alternatives to criminalisation such as internal disciplinary hearings and civil claims.
The Chairperson stated that it is incorrect to say that the Bill is informed by corruption. He asked whether it is not worthwhile to make it difficult for people to untruthfully make false disclosures.
Mr Horn argued that the Committee has received no evidence of the impact of false disclosures. He challenged members to produce evidence of large-scale false disclosures.
Mr M Maila (ANC) stated that in considering criminalisation, the Committee must be conscious of unintended consequences. He stated that section 9(b) is relevant.
Mr B Bongo (ANC) stated that the absence of evidence of widespread false disclosures should not deter the Committee from criminalising false disclosure. He gave examples of malicious disclosures of information, arguing that section 9(b) provides recourse for victims of false disclosures. He supported Mr Mpumlwana’s view that section 9(b) is well-worded.
Mr Mpumlwana disagreed with Mr Horn that criminalisation will deter people from making disclosures. He expressed displeasure with the new framing in the Working Draft of section 9(b) on the requirement for harm to have been caused before a false disclosure is deemed actionable: "with the intention to cause harm to the affected party and where the affected party has suffered harm as a result of such disclosure". He urged for the removal of this requirement, arguing that mere intention to cause harm suffices to trigger criminalisation, irrespective of whether actual harm is caused.
Ms Pilane-Majake stated that the Bill must contain a deterrent against false disclosures. She stated that liars must not be protected because lying is a moral and secular offence. The Bill must demonstrate fairness rather than be an impediment to development. South Africa is a peculiar, diverse society that must exercise care in nation-building.
The Chairperson pointed out the legal principle of deterrence, stating that it exists because remedies for wrongdoing are expensive. He cited smear campaigns by political parties, stating that it must not be assumed that whistleblowers are always in an inferior position to the people they seek to expose.
Mr Swart argued that there is a culture of non-whistleblowing in South Africa, which will be worsened by criminalising false disclosures. He compared the situation of whistleblowing to the biblical story of David and Goliath. He stated that ODAC’s report disclosed victimisation of whistleblowers and drew a distinction between false disclosures and honest, but inaccurate disclosures.
Ms Alison Tilley, ODAC Head of Advocacy and Special Projects, stated that the SA Law Reform Commission looked at international best practices and concluded that there are existing mechanisms against false disclosures. There are high levels of inequality, poverty, and unemployment in South Africa. From the perspective of working people, whistleblowing goes beyond corruption to issues such as sexual harassment, unfair discrimination, health and safety concerns. Criminalisation is not advisable because people who live from hand to mouth fear losing their jobs and speaking the truth often has negative consequences. She stated that 15 years of field experience has taught ODAC that there is no social security safety net for most working people that lose their jobs. Statistics show that the number of whistleblowers is dropping because the law does not properly protect them. This is the main purpose of the Bill. She concluded that many whistleblowers are good people.
The Chairperson remarked that South Africa is an evolving society with unequal levels of development. There are people inclined to be malicious who need to be deterred.
Mr Basset stated that the DoJ&CD has no further views on the criminalisation of false disclosures. However, it could make presentations tomorrow if the Committee wishes.
Mr Maila stated that the story of David and Goliath must be put in its proper context. Given that the Bill seeks to protect whistleblowers, perhaps, Goliath is the one who is at the receiving end of false information. He argued that a rein should be put on people who deliberately make false disclosures.
Mr Mpumlwana added that Goliath can be anyone, including top government officials and politicians. The aim of the Bill should be to protect all honest people seeking to blow the whistle on evil in South Africa. It is not enough to say that other laws deter false disclosures because the primary law for disclosures is the Act and its proposed amendment. He restated his argument that the requirement for actual harm in section 9(b) should be removed because intention to cause harm suffices for criminalisation of false disclosure.
The Chairperson remarked that deleting the requirement for harm could put the Goliath in trouble.
Ms Lorraine Martin, ODAC Manager: Whistleblowing Programme, stated that the purpose of whistleblowing is to bring attention to honest beliefs of wrongdoing. Accordingly, section 9(b) could defeat this aim.
The Chairperson asked whether the Bill should not address the entire diversity of South Africa by instilling reasonableness and responsibility into whistleblowing. He stated that laws should be made for the whole South Africa, not a specific section.
Ms Breytenbach argued that the onus should not be put on whistleblowers to ascertain the correctness of the information they disclose. If the onus is placed on them, they will be discouraged from whistleblowing. She restated her stance against criminalisation in any form.
Mr Bongo remarked that David did defeat Goliath. Given that the object of the Bill is clear, criminalisation is just a caveat to prevent malicious usage of the Bill. Any person who discloses falsely with an intention to cause harm to the affected party is not protected by the Bill. This implies an absence of good faith. Accordingly, criminalisation is within the objects of the Bill.
Mr Mpumlwana stated that an ordinary [adult] person knows what is wrong or right. Therefore, there is no need to protect people who disclose information with intention to cause harm. He restated his call to remove actual harm from section 9(b).
Ms Pilane-Majake pointed out that the David-Goliath allegory could exclude people of other beliefs in an unfair manner. The allegory could be manipulated to suit particular situations.
The Chairperson cut in to say that Ms Pilane-Majake raises an important point about the David-Goliath allegory because of conflict between the Jews and Palestinians and Christianity, Judaism, and Islam. He called on members to avoid references to David and Goliath.
Ms Pilane-Majake argued that that the Bill must not be interpreted as weakening the legal position of whistleblowers. False disclosure must appear in the Bill to avoid having grey areas. Inputting other legislation against false disclosures would open a grey area in the Bill and create unfairness to victims of false disclosure.
Mr Basset stated that reputational damage is a serious issue. Disclosure could also lead to attacks on whistleblowers.
Mr du Preez observed that the Bill applies to both public and private sectors. Only investigations can reveal the authenticity of certain disclosures. These investigations consume time and resources. He concluded by saying that reputational damage is a factor in the false disclosure debate.
The Chairperson suggested that members should ponder the issue of criminalisation overnight.
Mr Swart stated that the DoJ&CD has not advised the Committee on alternatives to criminalisation. About the David-Goliath allegory, he affirmed the right to freedom of religion. He restated that fewer people are coming forward to make disclosures.
The Chairperson replied that members have dealt with alternatives to criminalisation when they argued that these alternatives could be time and resource consuming. He called on members to think of options to resolve the matter in tomorrow’s meeting.
Prof C Msimang (IFP) conceded that people do make false disclosures. However, a whistleblower is like a referee, and referees have tremendous powers that affect players. The Committee should decide on how to help victims of false disclosures if criminalisation is removed.
The Chairperson thanked everyone and closed the meeting at 11:56 am.