Protected Disclosures Amendment Bill: Department of Justice briefing; Justice Administered Fund Bill [B26-2015] adoption

NCOP Security and Justice

30 November 2016
Chairperson: Mr D Ximbi (ANC; Western Cape)
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Meeting Summary

The Department of Justice and Constitutional Development briefed the Committee on the Protected Disclosures Amendment Bill (the Bill), which was being introduced in an attempt to broaden the ambit of the Protected Disclosures Act (the Act). When the Act was originally being discussed, the South African Law Reform Commission had been asked to look into certain aspects further, and it had therefore consulted widely and done a broad investigation. The current amendment Bill now aims to strengthen the protection of whistleblowers by extending the ambit of the Act beyond the traditional employer/employee relationship. It would grant immunity from criminal and civil liability to a person who makes a protected disclosure in certain circumstances. It also creates an offence where an employee makes a false disclosure during the course of its investigation.

A full explanation on what was contained in the Act was given as background to what the Bill now sought to change. It was summarised that a protected disclosure would be one that was made in good faith, by an employee who reasonably believes that the information disclosed and allegations are substantially true, and when this disclosure is not being made for personal gain. The impropriety will be of a serious nature and the employee would have reason to believe that the evidence relating to that would be concealed or disclosed if it was brought to the attention of the employer, or where no action had been taken in similar circumstances, and that s/he would be subjected to an occupational detriment if s/he disclosed direct. The Act had applied to traditional employer and employee relationships and the Bill would now extend it to those working under agency or contract agreements and call them “workers” - which is separately defined. The “occupational detriment” is also being extended to include reprisals such as defamation suits and those based on the alleged breach of confidentiality agreements, as well as contractors not being awarded contracts. There will now be a duty to inform employees of decisions to investigate. An avenue is provided for making applications to court for redress on behalf of those who cannot do this in their own names. The new section 9A will hopefully facilitate and encourage disclosures by excluding criminal and civil liability in certain circumstances, although it cannot introduce blanket immunity, and immunity will not be automatic but will be at the court's discretion.

The Parliamentary Legal Advisors and Committee Secretary informed the Committee that the Justice Administered Fund Bill, a section 75 bill,  had been advertised, and comments sought, but that no submissions had been received. It was explained that the Department of Justice and Constitutional Development, which administers the Fund, requires investment to be able to offset bank charges or receive a higher return through investment in other accounts. The Constitutional Court rulings on public participation were briefly summarised, which were to the effect that Parliament has the discretion to decide when and how to solicit public participation. In this instance, the Parliamentary Legal Advisors were of the view that the NCOP had taken sufficient steps. Members urged that the Committee should try to popularise public participation in the provinces, asked who the money was invested for, and the purpose, and asked when the policy would be developed to manage the Fund. Members agreed to adopt the Bill.

Members also adopted the minutes of 23 November 2016, subject to some technical amendments.
 

Meeting report

Protected Disclosures Amendment Bill [B40B – 2015]: Department of Justice and Constitutional Development briefing

Mr Henk Du Preez, State Law Advisor, Department of Justice and Constitutional Development, briefed the Committee on the Protected Disclosures Amendment Bill (the Bill). He noted that the Bill emanates from the South African Law Reform Commission’s report on protected disclosures. It aims to extend the application of the Protected Disclosures Act, 2000 (the principal Act), beyond the traditional employer and employee relationship. The Bill also aims to amend the principal Act in order to regulate joint liability, to introduce a duty to inform employees or workers who have made disclosures, and to provide for immunity against civil and criminal liability under certain circumstances.

He then briefly reminded the Committee of the objectives of the Protected Disclosures Act 2000 (PDA)  which are 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. The Act further provides for remedies and procedures by which an employee can, in a responsible manner, disclose information regarding improprieties by his or her employer.

Mr du Preez highlighted the definition of “disclosure” as:

any disclosure of information regarding any conduct of an employer, or his/her employee, made by any employee who has reason to believe that the information concerned shows or tends to show 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
- 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.

Furthermore, unfair discrimination means that any matter referred to above has been is being or is likely to be deliberately concealed.

 “occupational detriment” is defined as being:
- subjected to any disciplinary action
- dismissed, suspended, demoted, harassed or intimidated
- transferred against his or her will
- refused transfer or promotion
- subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage
-refused a reference, or being provided with an adverse reference, from his or her employer
- denied appointment to any employment, profession or office
- threatened with any of the actions referred to above
- otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security.

Remedies

Section 4 of the PDA provides that an employee who has been subjected, is being subjected or may be subjected, to an occupational detriment may approach any court having jurisdiction, including the Labour Court established by the Labour Relations Act, 1995, for appropriate relief or may pursue any other process allowed or prescribed by any law.  An employee who is dismissed for making a protected disclosure can claim either compensation for loss of salary or reinstatement. An employee who is disadvantaged in some other way (than dismissal) as a result of making a protected disclosure can claim compensation or ask the court for any other appropriate order.

Disclosure Mechanisms

In terms of Section 3 of the Act, an employee who has made a disclosure in compliance with any one of the different procedures that are stipulated in sections 5 to 9 of the Act may not be subjected to an occupational detriment.

Section 5 of the PDA determines that any disclosure made to a legal practitioner or to a person whose occupation involves the giving of legal advice and with the object of and in the course of obtaining legal advice, is a protected disclosure. This would include the employee’s attorney or shop steward.

Any disclosure made in good faith to the employer is a protected disclosure. In this regard any disclosure made in good faith in terms of section 6 of the PDA which is substantially in accordance with any procedure authorised by the employee's employer for reporting or otherwise remedying the impropriety concerned, is a protected disclosure.

Section 7 of the PDA provides that 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 employee's employer is an individual appointed in terms of legislation by a member of Cabinet or of the Executive Council of a province; 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 an organ of state falling within the area of responsibility of the member concerned.

Section 8 provides that any disclosure made in good faith to Public Protector, Auditor-General or a person or body as may be determined by the Minister (by Regulation) is a protected disclosure.

The requirements for what constitutes a protected disclosure are set out in section 9(1) of the Act. These are:
- The disclosure must be made in good faith
- The employee must reasonably believe that the information disclosed and allegations are substantially true
- The employee should not make disclosure for personal gain

Section 9(2) contained the following conditions:
- Employee must have reason to believe that he or she will be subjected to an occupational detriment if disclosed
- Employee must have 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 employer
- Previous disclosures led to no actions
- The impropriety is of an exceptionally serious nature

Section 9(3) deals with factors to be taken into account to determine reasonableness, such as, the identity of person to whom disclosure was made, the seriousness of the impropriety and  whether impropriety is continuing or is likely to occur in the future.

Mr du Preez noted that when Parliament considered the Act in the first place, it had also requested that certain aspects should be investigated further.  The investigation, among others, focussed on the feasibility of extending the ambit of the Act beyond the traditional employer and employee relationship. The possibility of creating a new remedy for an employee who has been victimised by an employer in contravention of the Act was also looked in, as was the concept of granting an employee who makes a protected disclosure immunity from criminal and civil liability.

The current amendment Bill now aimed to strengthen the protection of whistleblowers by extending the ambit of the PDA beyond the traditional employer/employee relationship. It would, in certain circumstances, grant immunity from criminal and civil liability to a person who makes a protected disclosure in certain circumstances. It also creates an offence where an employee makes a false disclosure.

Mr du Preez then took the Committee through the provisions of the Amendment Bill.

Outline of Protected Disclosures Amendment Bill

Clause 1 aims to amend section 1 of the principal Act by extending the ambit of the Act beyond the traditional employer and employee relationship by inserting definitions of “business”, “worker” and “temporary employment service”; amending the definition of “occupational detriment” so as to bring it line with the proposed extension of the ambit of the Act; and extending the definition of “disclosure” to include additional conduct in respect of which a disclosure may be made. The proposed amendment of the definition of “employee” in clause 1 is intended to clarify that persons who have worked for another person, such as former employees or pensioners, or assisted in carrying on the business of an employer are also included within the meaning of the definition.

The introduction of the definition of “worker” is based on two reasons. Firstly, independent contractors are not considered as employees in terms of labour legislation and are expressly excluded from the reach of the remedies contained in the labour legislation. Amending the definition of “employee” to include for example, independent contractors will therefore create confusion regarding the remedies that are available to such persons in terms of the principal Act. Secondly, by defining the term ‘worker” separately the protection offered by the principal Act will be extended to independent contractors, agents and consultants.

The proposed amendment of the definition of “disclosure” has a dual purpose. Firstly, it aims to ensure that a disclosure for the purposes of the principal Act also means a disclosure of information of a worker. Secondly, it should be noted that Chapter II of the Employment Equity Act, 1998 (Act No. 55 of 1998) contains a range of grounds considered to be unfair discrimination within the context of employment policy and practice. The definition “disclosure” should therefore be amended to include reference to family responsibility, HIV status, political opinion and medical and psychological testing as grounds that are considered to be unfair discrimination.

Clause 1(d) contains a proposed amendment to the definition of “occupational detriment”. The proposed amendment aims to introduce two additional forms of occupational detriment that an employee may be subjected to as a result of having made a protected disclosure. The definition will be extended to include reprisals such as defamation suits and suits based on the alleged breach of a confidentiality agreement or duty. The term “occupational detriment” will further be extended to include a specific form of detriment typically experienced by contract workers, who do not currently fall within the ambit of the Act, namely the loss of a contract or the failure to be awarded a contract.

Clauses 2, 3, 6, 7, 8 and 9 of the Bill reflect consequential amendments to amend sections 2, 3, 6, 7, 8, and 9 of the PDA in order to ensure that the term “worker” is included after the word “employee” wherever it appears in the sections. The proposed amendments aim to ensure that the substantive provisions of the Act reflect the proposed extension of the ambit of the Act correctly.

Clause 6 further aims to introduce an obligation in respect of employers to have appropriate internal procedures in place for receiving and dealing with information about improprieties. The substantive amendments that are reflected in clause 6 will introduce an obligation in respect of employees to have appropriate internal procedures in operation for receiving and dealing with information about improprieties.

Clause 4 aims to introduce two new provisions in the PDA, dealing with joint liability and a duty to investigate a disclosure, respectively. Joint liability is the proposed new section 3A. The provision will cater for the scenario where, for example, a protected disclosure is made by a nurse who is employed by an agency, either to the agency or to the care home where she works.  If the nurse is subjected to an occupational detriment as a result of the disclosure she will be entitled to the remedies provided for in the PDA.

A new section 3B deals with the duty to inform employees. Employees who make protected disclosures experience difficulties where they are not notified of a decision not to investigate the disclosure, or of a decision to refer the matter to another body to investigate, or of the outcome of an investigation. The proposed new section 3B aims to address this concern.

Section 4 of the Act, among others, provides that an employee who has been subjected, is subjected or may be subjected, to an occupational detriment may approach a court having jurisdiction, including the Labour Court, for appropriate relief. Employees are therefore required to institute proceedings in their own names. However, circumstances may prevail that make it difficult or impossible to do so. The proposed amendment to this section is aimed at providing an avenue for making application for redress, on behalf of those employees who are unable to do so in their own name.

Furthermore, the proposed new subsection 4(1A) makes it clear that a court may order an employer to pay compensation or actual damages to an employee or worker and further provides that a court may issue an order directing an employer to take steps to remedy an occupational detriment.

Clause 5 of the Bill contains proposed amendments to section 4 of the PDA which deals with remedies. Mr du Preez said again that section 4 remedies are, in the Act, limited to “employees” in the strict sense and do not cater for independent contractors, consultants and agents.  The proposed amendment of section 4 therefore aims to ensure that all workers (including independent contractors, consultants and agents) will also be able to exercise certain remedies if they are subjected to any occupational detriment as a result of having made a protected disclosure.

Clause 10 introduces a new section dealing with the exclusion of civil and criminal liability. The proposed new section 9A will help achieve one of the main aims of the Act, namely, to facilitate and encourage disclosures. The new provision does not introduce blanket immunity. The need to protect certain information, either in the national interest of the country or in the interest of the livelihood of an employer, militates against granting blanket immunity.  It can therefore only be justified where the content of the disclosure is sufficiently serious. That is where the disclosure relates to the commission of an offence. Immunity will not be automatic but will be subject to the discretion of the court in which an action is brought.  The Act places a high premium on the responsible manner in which employees must disclose information regarding improprieties, but does not deal with false disclosures.  It does not deal with the other more serious consequences of a false disclosure, for example, the reputational damage that such a disclosure may cause to an innocent employee or employer.  Clause 10 introduces a new provision, section 9B, in the PDA, in terms of which employees or workers who make false disclosures are guilty of an offence. The proposed amendments that are reflected in clause 11 entail the inclusion of the term “worker” after the word “employee” wherever it appears in section 10. 

Clauses 12 and 13 of the Bill aim to amend the long title and Preamble of the PDA, respectively, in order to bring the provisions concerned in line with the proposed amendments to the Act.

Clause 14 represents the “short title” provision of the Bill.

Mr du Preez noted that the SALRC had consulted widely and solicited comments from a variety of interested parties in the public and private sectors.

The State Law Advisers and the Department of Justice and Constitutional Development are of the opinion that the Bill must be dealt with as a section 75 Bill. They further do not believe that it is necessary to refer this Bill to the National House of Traditional Leaders, since it does not contain provisions pertaining to customary law or customs of traditional communities.

There was no discussion on the Bill.

Justice Administered Funds Bill (JAF Bill): Deliberations

The Committee Secretary said that Parliament had advertised the Bill and requested comment, but no written submissions were received. The Committee must consider the JAF Bill and submit amendments in the presence of the Department, the State Law Advisor and the Parliamentary Legal Advisor.

Ms Sueanne Isaac, Parliamentary Legal Advisor, explained that the JAF Bill was introduced as a section 75 bill and has undergone parliamentary processes. She said that there is a duty on the NCOP to facilitate public participation in the legislative processes, and repeated that although the public was invited to comment, no written submissions were received.

Ms Isaac explained that in the past, four Acts passed had been challenged where the NCOP had failed to facilitate public participation at Bill stage, and they were found to be unconstitutional. The judgments noted that Parliament has a discretion on public participation, which will afford Parliament leeway in deciding what will be appropriate public participation, since some bills generate greater interest than others, which should be assessed on a case-by-case basis.

Ms Isaac further explained that reasonableness refers to the nature and importance of the legislation and the intensity of the legislature on the public, as well as time and expenses. According to Ms Isaac, the NCOP has not failed in its duty to facilitate public participation in this case, having attempted to do so, and she was of the opinion that the Committee had therefore upheld its Constitutional obligations

Discussion

Ms T Wana (ANC; Eastern Cape) recommended that the Committee  should popularise public participation in provinces.

Mr M Mhlanga (ANC, Mpumalanga) supported the recommendation made by Ms Wana as the Bill affects the provinces on the basis that courts are situated in the provinces. Since the money under discussion belongs to the public, the public has a right to comment. Mr Mhlanga asked who money is being invested for and what the purpose of the investment is as it is public money.

Ms T Mokwele (EFF; North West) said that the Committee needs to be able to provide guidance on the current situation and what is required going forward. She is aware of workshops taking place but said that more clarity was needed on the legislature. The presentation suggested that things may not always have been done correctly.

Mr M Mohapi (ANC, Free State) welcomed the presentation. He noted that the Committee has the discretion of deciding whether the matter should be taken to the House and whether it is of public interest. He asked what determinant would be used.

Mr S Thobejane (ANC; Limpopo) suggested that if there is no objection, the Bill should be passed and taken to the House for adoption.

Ms Isaac explained that the investment is to offset charges on the bank account. Ms Isaac indicated that the Department would be better suited to respond to the question. She said that the Committee may always call for a legal opinion or presentation.

Ms Isaac explained that Section 76 Bills affect the provinces, and this must be considered to determine the appropriate public participation. She explained that the standard is to assess the response from the public as well as determine the effects on communities. In this case, she reiterated her belief that the Committee has made sufficient attempts to facilitate public participation by means of the local radio stations.

Mr Nico van Heerden, Director: Third Party Funds, Department of Justice and Constitutional Development, explained that the Department requires investment to offset bank charges or receive a higher return through investment in other accounts.

Mr Mhlanga enquired whether the Department is still developing a policy to manage the Fund. 

Mr Van Heerden explained that once the Bill has been enacted, policy will be developed. He explained that a legal vacuum exists regarding the management of the funds.

Members agreed to the adoption of the Bill.

The Committee Secretary noted that the NCOP would adopt the report on the Bill at the next meeting.
Consideration of Minutes

The minutes of 23 November 2016 were tabled.

Ms Wana enquired as to the purpose of the asterisks next to members’ names.

The Committee Secretary explained that member attendance is determined by the relevant parties, and these members were marked as alternates by the respective parties.

Ms Mokwele said that the parties are responsible for submission of names to the Committee.

Mr Mohapi recommended that the asterisks be removed.

Ms Mokwele noted that the Committee does not have such powers, and that the political party concerned is required to deal with the matter.
 

The Chairperson noted a technical error and said ‘agenda’ must be corrected to ‘minutes’.

Mr M Chetty (DA; KwaZulu-Natal) recommended that members must have an ANC caucus on a matter that was being repeated.

Ms Mokwele explained that more recommendations were made regarding overcrowding of correctional centres, and the request for the research unit to assess the situation, but those recommendations were not captured in the minutes. She hoped the recommendations will be properly captured in the report.

Ms Mokwele emphasised that “If the matter of the Office of the Chief Whip is not attended to immediately, the institution will collapse”. She explained that there were irregularities, influenced by the Office of the Chief Whip, which have a negative impact on the morale and participation of Members.  Some Members were not aware that they were declared alternates and this did not make for good working relationships in the Committee.

Ms Wana indicated that, although the opposition has stated the issue, it needed to be solved as there is no Whip in the Committee.

The Chairperson explained that the Chief Whip, although a member of the ANC, is the Chief Whip of the institution.

Mr Chetty noted that the Committee should not be involved in internal politics.

The meeting was adjourned.

 

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