Protected Disclosures Amendment Bill: public hearings & Department response

Meeting report

Open Democracy Advice Centre (ODAC) submission
Ms Alison Tilley, ODAC Head of Advocacy, was accompanied by Ms Lorraine Martin, Manager: Whistleblowing Programme. Ms Tilley acknowledged the engagement with the DoJ in which it has allowed them to reach a consensus on a number of sections. However, they are concerned with section 9B of the Bill which creates a criminal offence if persons intentionally disclose false information.

Ms Tilley requested that they provide further evidence contained in letter from their international partners, the Whistleblowing International Network (WIN), about international best practice which they believe makes a convincing case for section 9B to be scrapped.

Chilling Effect of Section 9B and Evidence
Ms Tilley stated that the provision has the potential of a ‘chilling effect’. A punitive criminal sanction is inconsistent within the framework for the promotion of whistleblowing. It is of great concern that the ‘chilling effect’ will mean that whistleblowers are being discouraged. It is important to note that there is a wide range of risks that a whistleblower may face and which may contribute to a South African landscape hostile to those wanting to make protected disclosures.

Ms Tilley stated that there is statistical evidence from various sources supporting that there is a need for whistleblowers to be protected and for them to freely speak and avoid any chilling effect. According to the Memorandum on the Objects of the Bill, there is the justification for the creation of an offence relating to the fear of “reputational damage that such a disclosure may cause to an innocent employee or employer” with no link to a more evidence-based description of harm.

Necessity and Constitutionality
Ms Tilley stated that the only envisioned harm is ‘reputational harm’. In considering whether the provision sought to alleviate this harm is constitutional, such provision should be considered within the context of necessity. A falsely laid disclosure already does not attract the protection of the law. The reason that criminal sanctions are not included in whistleblower laws is that their chilling effect is unnecessary. In most jurisdictions it is a criminal offence to provide false statements to government and defamation laws create civil and in other instances, criminal liability. Within South Africa too, there are a variety of pre-existing laws that can be used to sanction or deter a false disclosure. Such alternative remedies could come from within contract law, crimen injuria and civil law. Further, as suggested the main purpose for criminalisation is to defend against defamation, this contradicts the international trend against criminalisation of defamation, which also constitutes a major activity of the African Union.

Ms Tilley stated that they analysed laws from various jurisdictions measured against international treaties, in which they found that it was proposed that any formulation of a provision against false disclosure consistent with the UN Convention against Corruption should only be drafted to reference civil and employment sanctions already in existence. In the Department of Justice’s research they indicated that civil remedies resulted in “expensive and drawn out” legal proceedings, but provide no substantive support to indicate how a criminal process that occurs within the same justice system would significantly mitigate against this, especially given the additional expense burdens on the state that are then borne by the taypaper. No adequate evidence has been provided to support the necessity of such a provision, nor evidence provided that it could offer a significant deterrence to false disclosures in a manner more effective than the remedies already available.

Ms Tilley stated they were concerned that the attempt to include this provision constitutes a retrogressive step taken by the legislature against the fulfillment of the right to free speech and dignity. Thus, they recommend that section 9B be removed.

Corruption Watch submission
Mr Nhlamulo Mvelase, Corruption Watch Attorney: Legal and Investigations, said that Corruption Watch is a non-profit organisation, independent with no political or business alignment. Its biggest concern is open and fearless reporting of corruption in South Africa. Corruption Watch works to ensure that custodians of public resources act in a responsible manner to advance public interests. He expressed his gratitude to the Department of Justice for considering most of their submissions made in the previous hearings.

Mr Mvelase stated that while they applaud the initiative taken by the Department to extend the application of the Bill and to strengthen the whistleblower protection in respect of employees and workers, Corruption Watch has several concerns on the implementation of the Amendment Bill and other practical challenges faced by employees and workers when making protected disclosures.

Mr Mvelase said that there were three areas that needed to be looked at, the first two would be discussed simultaneously as they are similar. Below are the areas discussed;
- The expanded definition of ‘occupational detriment’
- Section 9A which excludes civil and criminal liability for protected disclosures;
- Section 9B which introduces offence of making disclosures in bad faith.

Definition of occupational detriment and exclusion of civil and criminal liability
Mr Mvelase stated that the definition of occupational detriment is restrictive and there is no rational basis for that. They proposed that the wording should be: “being subjected to any civil claim for the alleged breach of a duty of confidentiality or confidentiality agreement arising out of a protected disclosure’. This wording would then ensure that individuals making general disclosures as defined in the Act would be protected.

Mr Mvelase said they submit that Section 1(e) (i) “in respect of which the employee or worker concerned commits a criminal offence by making that disclosure” contradicts Section 9A which excludes criminal and civil liability for making protected disclosures. It is a section that has a confusing set of requirements for which civil and criminal liability should be excluded thus it results in ambiguity and incoherent legislation.

Mr Mvelase said that the definition of ‘occupational detriment’ and Section 9A are addressing the same issue but there is a difference in the protection afforded under ‘occupational detriment’ and under Section 9A. The definition under ‘occupational detriment’ is narrow and it does not apply to all forms of disclosures made whereas Section 9A protects all forms of disclosures. Thus they request that the Department and the Committee revisit the two sections and attempt to align them because there will be confusion on the application of the sections at different times.

Corruption Watch notes that the introduction of Section 9A (b) which expands the type of information which may be disclosed beyond criminal offences to now include information which shows or tends to show substantial contraventions of the law. They regard this as a step in the right direction but cannot understand why civil and criminal liability should be excluded only in limited circumstance. They suggested new wording for the provision.

New offence for the disclosure of false information
Mr Mvelase stated that Section 9B is very significant and is very important especially to the work that ODAC and CW does, they will try to promote whistle blowing or informing authorities of all corrupt activities that occur. The offence of false disclosure has the effect to likely deter employees and workers from making protected disclosures since some information may appear to be legitimate but may, after investigation, prove to be false or unreliable. The new section implies that if an employee or worker makes a disclosure they are at a risk of facing criminal consequences. Labour laws exist for a reason whereby the employer investigates the protected disclosure and reverts to the employee about the veracity and possible action if proven to be true. Therefore, in this context disclosures are not regarded as being protected, if an employee does not make it in good faith. For employees that make a disclosure in bad faith, they may not be able to claim that their dismissal was automatically unfair, as it is a sanction that already existing in terms of the Act.

Corruption Watch states that the introduction of an offence is therefore unnecessary and may serve as a deterrent to employees and workers from making disclosures.

General Commentary
Ms Leanne Govindsamy, Corruption Watch Head; Legal and Investigations, stated that they were deeply concerned about the practical application of the Amendment Bill in light of the anomalies, confusing cross references and ambiguities in the drafting of the new sections. It was their hope that the Committee would carefully consider these in order to ensure that both employers and employees or workers are able to understand and apply the Amendment Bill in a way which gives rise to the meaningful protection of whistleblowers.

Ms Govindsamy said that the Amendment Bill has loopholes which employers may use to their advantage in order to exploit employees and workers from making disclosures. The Amendment Bill still does not create or make reference to affordable and accessible mechanisms for employees to effectively seek the protection of the legislation. Recourse is still being sought through the Labour Court which may be expensive and subject to numerous delays. They stated that their previous submissions had covered this and they pleaded that the Committee consider them.

In conclusion, Corruption Watch wished to draw the attention of the Committee to the training and education aspects in the implementation of the Amendment Bill. There is need to ensure that there is proper training of officials in the public sector on the nature and scope of the amendments, the circumstances under which certain liability may be excluded and the nuanced aspects of the amendments. Simple, easy to understand training material, guidelines and educational tools will form the backbone of the proper and meaningful implementation of this important piece of anti-corruption legislation. It was their hope these factors would be taken into consideration when finalising the Amendment Bill.

Department of Justice and Constitutional Development response
The team consisted of Mr Lawrence Bassett, Chief Director; Legislation; Mr Henk Du Preez, State Law Advisor
and Ms Inge Ontong, State Law Advisor.

Mr L Bassett stated that the document covered mainly two issues i.e. false disclosures and occupational detriment. He asked Mr Du Preez to express the views of the Department and that these views had also been expressed at the Portfolio Committee. The Portfolio Committee felt strongly about the false disclosures and they would like to state in their presentation why it is there. He stated that they should the Department should have had a discussion with Ms Tilley on the legislation she referred to in the WIN document citing different laws in different countries where it is suggested that the DoJ might have misread or misinterpreted the way they have set out what these laws seek to achieve. He stated he was personally confused and does not understand those issued but Mr Du Preez would deal with the issues. They do not want to misinterpret or misrepresent, but some of the countries and the legislation which they think is whistleblower legislation, they do not understand where they are coming from.

Mr Du Preez stated that he would first deal with the technical issue of occupation detriment versus Section 9A. On the technical level they agree with CW and possibly after the meeting they would like to have a meeting with them on a technical drafting level.

Mr Du Preez stated that  CW pointed out that their concern on the technical aspect of the definition of occupation definition and the new proposed  Section 9A dealing with the exclusion of criminal and civil liability needs to be aligned. The proposed new Section 9A in the introduced version of the Bill only refers to the disclosures of criminal offences. But the proposed new Section 9A was amended in the Portfolio Committee to include reference to information that shows or tends to show contravention or failure to comply with the law has occurred.

Mr Du Preez stated that they agree with the recommendation by CW to the extent that the definition of occupation detriment should be aligned to the proposed new Section 9A (1) (b). However CW further recommends criminal and civil liability should not only be excluded in limited circumstances namely the case criminal offences or substantial contravention of the law, they recommend that it should apply in respect of any disclosures as defined. The Department does not agree or do not support the recommendation because any breach f confidentiality is a serious matter and should be approached with care in order to avoid any possible negative consequences that are justifiably prevented by a confidentiality agreement. The disclosure of a criminal offence or substantial contravention of the law is of serious nature and enough to justify the alleged breach of confidentiality.

False Disclosures
Mr Du Preez mentioned to the Committee that whistleblowing in other countries sometimes is difficult to make comparison, because South has a very progressive piece of legislation to the extent that the Bill relates to a wide range of work place improprieties  in the first instance and second instance is that the Bill applies to both public and private sectors. Hence, it is very important to take that into consideration, many countries limit their legislation to public interest disclosure were improprieties  of the civil service are put under scrutiny and the protections are hoping to allow people to make those disclosures with regard to civil servants that are not doing their work  and subject themselves to being guilty of improprieties

Mr Du Preez stated that it is accepted that some examples used cannot point exclusively whistleblowing protection legislation but it proves one point that false disclosures are criminalized by means of legislation even in those countries that have common law remedies in respect of false disclosures.

Consequences of false disclosures
Mr Du Preez stated that when it comes to consequences for false disclosures, the Act requires persons giving information to act in a responsible manner. If the information does not qualify as a disclosure then it will not be entitled to the remedies prescribed in the Act if one is subjected to occupational detriment.

Mr Du Preez emphasised that there are sometimes serious consequences associated with false disclosures. The only example used is the issue of reputational damage which is a serious matter and it can take a long time to test the veracity of the information. In that process, a person or an institution can be compromised as a result of such disclosures. There is need for clarity on what is meant by ‘false disclosure’, it is a disclosure made by a person who knows it is false.

In accordance with the Act, it indicates that the disclosure is protected if it is made to certain persons, for instance to a legal advisor, an employer, or a member of Cabinet/Executive Council of a Province where the employer is a public sector body; to the Public Protector; and to the Auditor-General. It is prescribed that where an individual would like to make a disclosure, it must be made in good faith and it is reasonably believed that the information disclosed is substantially true. There is a difference between a whistleblower with good intentions, making a disclosure with the reasonable belief it is true and a person who knowingly has the intention to provide false information. It is the latter, that the offence applies to. For these disclosures to be protected they ought to have been made in good faith. The only exception to this is where the intention comes into play.

Mr Du Preez stated the Act only deals with one consequence of a false disclosure; it does not attract any protection in terms of the Act. This is so because it does not qualify as a protected disclosure. One of the negative consequences associated with it is irreparable reputational damage. Once information has been disclosed under this Act, it is presumed to be true and the person making the disclosure is a bona fide whistle-blower and the person or institution against whom the allegations are made, is compromised.

Mr Du Preez pointed out that an area of great concern was the distribution of fake news. Fake news can be under the guise of Section 9. In the case that fake news is believed to be true, the perpetrator is believed to have been a bona fide whistleblower and the innocent institution or person is compromised. This could lead to prejudice to members of the public and an infringement of their right to know.

Mr Du Preez said that the opinion from WIN which had an emphasis on corruption, does not take into consideration the understanding of the parameters of the Act. This Act is broad.

Proposed new section 9B
Mr Du Preez stated that criminal liability will only result if the intention was to harm and it was indeed suffered. The bone of contention was whether the requirement had gone too far to prosecute a person alleged to have made a false disclosure, to prove actual harm. They had included in the clause that this prosecution can only be instituted if it has been authorised at a senior level of the National Prosecuting Authority.

Other legislation
South Africa’s legislation is progressive in nature in that it aims to protect the whistleblower in both the public and private sector who discloses workplace improprieties. The submissions before the Committee seem to suggest that dedicated whistleblower protection legislation in other jurisdictions do not contain offences for false disclosure. This is understood to mean that such legislation does not reflect the offence concerned in those Acts. This is correct, but for example in Australian law, it provides for criminal liability in respect of “false or misleading information” and “false and misleading documents”.

Discussion
Ms Tilley stated it is difficult to separate legislation which properly criminalises false disclosure as pointed to by the Department in which it is a different case with Australia. She added that indeed the South African legislation covers both private and public sectors and covers a broad spectrum of issues.

Ms Govindsamy replied to the Department on Section 9A that the real question is in the phrasing of Section 9A and said that Corruption Watch would like to engage with the Department on the drafting of the section. On the introduction of the provision, they asked how the new provision differs from the definition of a disclosure.

Ms Govindsamy asked if the introduction of Section 9A amounts to the criminalisation of defamation. They are of the view that this provision now creates criminal liability for defamation but in a different guise. This is despite the push to no longer criminalise defamation. 

The Chairperson thanked the presenters and asked Members for comments and questions.

Ms T Mokwele (EFF) said that it is important to protect the whistleblower irrespective of where they are and they should freely do so. She asked the Department who is the actual custodian of the Act? Whether it is politically affiliated or it was an administrative issue. She stated that any introduction of new law should ensure that democracy is at the centre and should not be compromised. She asked what the Department is doing to ensure that such legislation is well-known. She asked how often the Department of Justice interacts with its sister departments to ensure that training of their employees is being done.

Mr M Mhlanga (ANC) welcomed the submissions. He asked for assurance that the concern raised by COSATU had been addressed. He asked ODAC why the research focused more on Western countries. It is important for South Africa to acknowledge its potential in formulating its own legislation that reflects its views and not from a Western perspective.

Ms T Wana (ANC) welcomed the submissions. She stated that there is a need to control some issues that can harm the country such as taking in false information. It was difficult to understand ODAC’s approach on the research presented in that they first looked into the legislation from the West and not looking at the apartheid era on this issue and how it was handled. She advised that they should have conducted  internal research first.

Mr M Mohapi (ANC) welcomed the submissions. He emphasised that in the many times legislation has been developed, communities seem to fail to understand the nitty-gritty of it despite having public hearings. There is need for an ongoing programme to engage people on this piece of legislation especially if the Bill has serious implications, so he advised that this should be taken into consideration.

Mr Mohapi stated that he endorses the Department on the issue of disclosing information in good faith. He said that the Act not only protects the whistleblower but also the person against whom the allegations are being made. Before one makes a disclosure, there is need to be mindful of the consequences. He agrees with the Department that intentional and malicious conduct is to be held criminally liable. This provision will deter intentional false disclosure happening, especially in the public sector.

Mr G Michalakis (DA) welcomed the submissions. One important thing was missing in the Bill. False disclosures are not protected disclosures in terms of the Act. He asked if this does not open enough avenues to deal with malicious disclosures. He also asked if it was necessary to go as far as including a section that criminalises it. According to the Act, it is accepted that the disclosure of information has to be in good faith and the moment it is a false disclosure in bad faith it is not protected anymore. In that regard, it is enough to take recourse against a person who maliciously disclosed false information. He bemoaned that it is not necessary to criminalise it as it will scare those people who would ordinarily have taken this Bill as a shield for disclosing information.

Ms Mokwele said that as politicians they must not treat issues differently and reference ideologies from the West when they do not suit the country. She asked whether the provision is in reference to the employer or the employee or the disclosure in this context is a general one. She added that a majority of members of the leading party were groomed by the West and that as a result some issues fail to be addressed because the country is stuck with a Western system

A point of order was raised by an ANC member that Ms Mokwele should refraining from referring to a person or party but refer to the Bill and not make frivolous suspicions about the ANC.

The Chairperson sustained the order and urged Members focus on the Bill.

Ms Mokwele replied that her question was in reference to the WIN document and she alleged that she was being closed out and that the reference she made was based on the WIN submission.

Before the Chairperson intervened, there were several points of order as two ANC members were of the view that Ms Mokwele should refrain from her comments about the party. The two ANC members and Ms Mokwele kept exchanging words. ANC members felt that Mrs Mokwele was raising frivolous suspicions and she remained steadfast  that she was only making reference to the WIN document presented by ODAC.

Ms G Manolope (ANC) noted that ODAC’s submission listed a number of countries and asked if those countries included a wide range of disclosures such as the Department raised. She pointed out that the Bill covers a wide range of issues and includes both private and public sector. She wondered whether the legislation of these countries referred to in the submission were as broad as the Bill. On the issue of good faith, she stated that the explanation the DoJ raised is sufficient. She agrees that the Bill does not just protect everybody and criminalises those that intentionally make false disclosures; it is also responsible to inform international investors in the country on how they will be protected.

Ms Govindsamy replied that it is important to understand the responsibilities of the publisher such as a media house, ODAC, Corruption Watch and so on. When it comes to information that emanates from a whistleblower that reaches the extent of publication, the publisher (for example, Corruption Watch has the responsibility to investigate first; failure to do so would mean they would be liable for defamation. Thus they have the duty to report truthfully in the public interest. The concern was about the publication of information that could be defamatory to any person or institution. It becomes defamatory when it is in the public eye. There are state institutions and mechanisms in place to deal with defamatory allegations. The same goes with matters of national security, there are other laws in place to deal with disclosures around that.

Ms Govindsamy noted that most of the tender irregularities that are disclosed to Corruption Watch are not disclosures of criminal offences. Does a tender irregularity constitute a substantial contravention of the law of a serious enough nature to justify the alleged breach of confidentiality? She stated it was not clear. Does it apply to an employment setting, what exactly is being controlled, so there is need for it be specific

Ms Govindsamy clarified that their point of view is that if someone makes a false disclosure in good faith, it is not protected, and thus it is a huge step to criminalise it.

Ms Tilley on the issue that false disclosures are harmful to the country’s in that disclosures on information on weapons of mass destruction, or human rights violations were not dealt with under this Bill and that this legislation only applies to an employment relationship.

Ms Tilley noted that the research made by WIN and the countries it referred to, were in reference to their practice/ jurisdiction. Thus this research was essentially evidence to convince the Committee not to criminalise and they agree with them.

In reply to the suggestion to research how disclosures were handled in the apartheid era, Ms Tilley stated that this Act was only introduced after the Constitution was introduced which created the freedom of expression which protects expression in the workplace as well. The Court should not be involved in such issues as this is a matter of politics and should be resolved in democratic spaces. She appealed to the Committee to resolve this in this political space.

Ms Tilley stated that in terms of Chapter 9 of the Constitution, the Public Service Commission has expressed interest in the legislation and want to be the institutional home of this Bill.

Mr Mohapi cautioned ODAC’s stance that there was nothing before apartheid because in the 1990s, South Africa experienced the most intense workers strike and some of the issues raised then also touched on the disclosure of information. He advised that ODAC refrain from dwelling on the issue of this on the political platform. He stated that the examples provided were merely to show the gravity of lies and not necessarily to imply that they are not aware of what the Bill seeks to achieve.

Ms Wana corrected ODAC that they were aware of the contents of the Bill; she was merely explaining the repercussions when a person makes a false disclosure on a particular issue. She added that without having to undermine ODAC’s submission, but that ODAC take note of what was before 1994 and how government handled disclosures. She did not understand why ODAC did not take note of her input.

Ms Tilley clarified about the four countries referred to in their submission, that they were not part of their findings but those of the South African Law Reform Commission (SALRC), which ODAC quoted to indicate the position of SALRC on the issue. They agreed that this Bill is progressive and is broad and that they were not in a position on the exact situation in the countries stated. They agree that the Bill protects the whistleblower but argue that criminalising will cause people to avoid speaking up. What really is being adopted and what is it mainly trying to achieve? They do not understand why it is necessary to criminalise and introduce criminal sanctions in the workplace which is of great concern.

Mr Bassett reiterated that indeed the Act is about the protection of whistleblowers but there is also need for people to be responsible. Even though only a few people may falsely disclose information, the law is to regulate the ‘rotten tomatoes’ existing in society which is precisely what the Bill is trying to achieve. The Department agreed with Members about education on the legislation and they will take it to the directorate dealing with this and discuss what they would like to do when the Bill comes into law, especially about section 9.

On interaction with sister departments, Mr Bassett stated that it was difficult for him to respond to that.

Mr Bassett stated that COSATU’s concern had been addressed.

Mr Du Preez said there are important issues that need to be addressed on public education.
- First, in amending the Bill they would like the assistance of the NGOs, for instance Corruption Watch and ODAC, to identify other institutions that need to be mentioned in the Bill and will request the Minister to include these institutions in the private sector on their responsibilities when it comes to publishing or disclosing information for the public interest as the Bill only covered institutions in the public sector.
- Secondly, though the original legislation was not entirely successful it contained guidelines to explain the provisions; it was the responsibility of the employer that these guidelines were made available to their employees. These guidelines will have to be revisited although it may take a while. They requested the assistance of NGOs in making the amendments to the guidelines to beef them up.
- Lastly, on false disclosures not being protected disclosures, the Department wanted to point out on the issue of public awareness of the Bill, they have now proposed an obligation on the employer to determine the procedure in the workplace for how an employee may make a disclosure. The success of the legislation lies in the implementation by the employer as the legislation was intended to protect the working environment.

Mr Du Preez pointed out to the Committee that in 1999, there was a Bill called the Open Democracy Bill which included a chapter dealing with the protection of whistleblowers but the Committee decided to remove that and place it in separate legislation which is now the Protected Disclosures Act. The origin of the current Bill comes from the Open Democracy Bill and there are existing deliberations on the applicability of freedom of expression. Mr Du Preez stated that they hold the position that false disclosures are not protected disclosures and the emphasis is on the responsible manner in which a person is to act in making that disclosure. The negative consequence is that a person will not be entitled to the remedies provided in the Bill - although there are more serious consequences to false disclosures.

Mr Mohapi apologised about the conduct of the Members that was displayed and conveyed his gratitude to the Department, ODAC and Corruption Watch. He added that the meeting was interactive and informative and believes that as discussions in this Bill are ongoing, understanding of the Bill will improved as well as the working relationship between the Committee and stakeholders.

The Chairperson thanked the members and all the presenters. He then adjourned the meeting.