The Committee continued its deliberations on the Protected Disclosures Amendment Bill. After listening to advice from the Office of the State Law Adviser (OSLA) regarding the approach of Ghana, Australia, Kenya, Namibia, New Zealand, and India to criminalisation of false disclosures and incentivising disclosures, members restated the views they expressed in yesterday’s meeting. The Committee voted in favour of retaining criminalisation and not incentivising disclosures. The list of bodies to which a disclosure could be made now included the Commission for Gender Equality, the South African Human Rights Commission, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. DoJ&CD had approached the Minister of Justice requesting the addition of the Public Service Commission and the South African Revenue Service to the list. This request has yet to be approved.
Protected Disclosures Amendment Bill: deliberations
Mr Lawrence Basset, Chief Director: Legislative Development, DoJ&CD, stated that the Office of the State Law Adviser has circulated to members two briefing notes detailing its opinions on criminalisation of false disclosures and financial incentives. He called on Mr du Preez to present the documents.
Mr Henk du Preez, State Law Adviser, highlighted the legislative approach to false disclosures in Australia, Kenya, Namibia, New Zealand, and India. He concluded that the principal Act should stipulate clearly and unambiguously that the disclosure of false information cannot be tolerated.
The Chairperson called on members to respond.
Mr L Mpumlwana (ANC) maintained his opinion from yesterday’s meeting, which is that false disclosure should be criminalised by retaining section 9(b) of the Protected Disclosures Amendment Bill.
Mr B Bongo (ANC) also maintained his position that section 9(b) should be retained. He called on the Committee to consider Mr Mpumlwana’s suggestion of removing the "actual harm resulting from a false disclosure" as a requirement for activating criminal proceedings against persons who make false disclosures.
Mr M Maila (ANC) also maintained his position that section 9(b) should be retained.
Mr S Swart (ACDP) insisted that false disclosure should not be criminalised. He argued that criminalisation would have a chilling effect on people’s willingness to make disclosures. He stated that whistleblowing legislation does not criminalise false disclosure.
Prof C Msimang (IFP) appealed to the Committee to come to the rescue of innocent victims of false disclosures. He cited the example of a young man falsely accused of sexual assault who was castrated. He expressed support for adopting the Indian model of criminalising false disclosures.
Mr W Horn (DA) maintained his position that criminalisation would defeat the purpose of the Act. He added that protected disclosure does not imply a duty on the part of the recipient to make the disclosure public.
Ms G Breytenbach (DA) maintained her position that false disclosure should not be criminalised.
Ms C Pilane-Majake (ANC) maintained her position that section 9(b) should be retained. She reiterated that people should not be victimised through false disclosure, adding that false accusations are becoming a plague in South Africa. Section 9(b) will act as a deterrent against liars.
Having noted Members’ positions on the issue, the Chairperson declared that criminalisation of false disclosures would be retained in the Bill. He called on Mr du Preez to comment on Mr Mpumlwana’s suggestion to remove actual harm as a requirement for criminalisation under section 9(b).
Mr du Preez referred to the Indian practice, stating that it is difficult to criminalise intention. He cited defamation, which is based on actual harm, as an example of the difficulty of proving intention.
The Chairperson remarked that crime is based on both intention and actual harm.
Mr Mpumlwana attempted to justify why intention alone should suffice for the criminalisation of false disclosures. The Chairperson closed the debate and called on the State Law Adviser to express its opinion on incentivising disclosures with financial rewards.
Mr Basset and Mr du Preez pointed out highlights in their briefing note, which justify the non-incentivisation of disclosures. They explained that section 61 of the Marine Living Resources Act 1998, section 60 of the National Forest Act 1998, section 34(b) of the National Environmental Act 1998, which provide for reward systems, are all based on environmental law. They opposed incentivisation, explaining that the environmental legislation referred to above aimed at enforcing the relevant legislation. It is questionable whether a reward system will have a huge impact on encouraging whistleblowing and protect whistleblowers. Moreover, a reward may only be obtained after conviction and after the person who made the disclosure is subjected to an occupational detriment. A reward system could also result in unintended consequences such as information peddling. Finally, whereas the stated environmental laws apply to non-state employees, the Act applies to employees and workers in both the public and private sector. Of the foreign jurisdictions surveyed, only Ghana applies a reward system for whistleblowing. Australia, Kenya, Namibia, New Zealand, and India do not.
Additional disclosure bodies
Mr Basset and Mr du Preez noted that the DoJ&CD had approached the South Africa Human Rights Commission, the Commission for Gender Equality, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. After meeting with the Open Democracy Advice Centre (ODAC), it approached the Minister of Justice requesting the addition of the Public Service Commission and the South African Revenue Service to the list of disclosable bodies. This request has yet to be approved. Accordingly, the list of disclosable bodies in the Working Draft of the Bill should be maintained. These are 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.
Prof Msimang asked how readily accessible the present disclosable bodies are to the public.
The Chairperson advised that accessibility is a different issue that is best discussed another time. He stated that the meeting will adjourn to next week because some members need to attend the Constitutional Review Committee meeting.
Ms Breytenbach opposed the adjournment to next week, stating that the Committee could meet on Friday.
Ms Pilane-Majake advised the Chairperson to avoid a dialogue with Ms Breytenbach.
The Chairperson disclosed that the Office of the Chief Justice has requested a meeting with the Committee on 28 November 2016. He asked members to indicate their availability.
The Chairperson thanked everyone and adjourned the meeting.