Protected Disclosures Act Amendments to the Practical Guidelines for Employees

Meeting report

Practical Guidelines under the Protected Disclosures Act

Mr Makhubela Mokulubete, State Law Advisor, Department of Justice & Constitutional Development (DoJ&CD), said the presentation was being made to seek the Committee's approval of the amendments to the Practical Guidelines under the Protected Disclosures Act, 2000 (Act No. 26 of 2000).

As background, he said Section 10(4)(a) of the Act requires the Minister of Justice and Correctional Services to issue practical guidelines which explain the provisions of the Act, and all procedures which are available in terms of any law to employees or workers who wish to report or otherwise remedy an impropriety. The Guidelines must be issued after consultation with the Minister of Public Service and Administration. In Section 10(4)(b), the guidelines must be approved by Parliament before publication in the Gazette. The guidelines were published in Government Gazette 34572 on 31 August 2011.

Mr Mokulubete said the Act was amended on 2 August 2017 to specifically include the South African Human Rights Commission (SAHRC), the Commission for Gender Equality (CGE), the Commission for Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and
the Public Service Commission, as other institutions to which protected Disclosuress could also be made.
 
Before its amendment, section 8(1) of the Act provided that any Disclosures made in good faith to the Public Protector, the Auditor-General, or any person or body prescribed for the purposes of that section and in respect of which Disclosures, the employee or worker concerned reasonably believes that:
 
the relevant impropriety falls within any description of matters which, in the ordinary course, are dealt with by the person or body concerned; and
The information disclosed, and any allegation contained in it, are substantially true, is a protected Disclosures.

Mr Mokulubete said the inclusion in section 8(1) of the Act of the said Commissions necessitated amendments to be effected to the guidelines by amending paragraph 3 of Part I under the heading “SPECIFIED PERSON OR BODY: (ROUTE 4),” to specify not only the Public Protector and the Auditor-General, but also those four Commissions.

It also necessitated amending Part III to set out the contact details of the Public Protector in all nine provinces, and not only in four provinces, as the guidelines currently provide, as well as to set out the contact details of other persons or bodies contemplated in section 8(1)(c) to who protected Disclosures can be made.

Finally, it required deleting Part IV of the Act from the guidelines. The proposed deletion would also obviate the need to amend the guidelines from time to time by substituting the Act whenever it is amended.

Mr Mokulubete said the Office of the Chief State Law Adviser (OCSLA) had provided an opinion on 23 February 2022, that the amendments to the guidelines were not in conflict with the Constitution or the empowering provisions. In terms of Section 10(4)(a), the Minister must consult with the Minister of Public Service and Administration before the amendments to the guidelines are submitted to Parliament for approval. The acting Minister of Public Service and Administration, in a letter dated 3 June 2022, stated that the amendments to the guidelines were supported.

It was therefore recommended that the Committee approve the proposed amendments to the Guidelines.

Discussion

Ms W Newhoudt-Druchen (ANC) asked if the officials of the Department of Education did not fall under the Public Service Commission (PSC). Where would the Department of Education officials be covered?

Mr W Horn (DA) asked whether the Department had considered amending the guidelines to give some effect to one of the findings of the Zondo Commission report. A weakness of the current whistleblower regime was that there was no clarity around the exact procedure to be followed by persons who intended or were considered to be whistleblowers. He would have thought that the guidelines could give some effect and bring some clarity on the exact procedure that needed to be followed. He did not know whether this had been considered.

Ms N Maseko-Jele (ANC) said the contact details provided were for different institutions that covered people within those institutions. She mentioned Mr Horn’s question about different institutions like the Department of Education and others that were not included. Was it possible for the Department to include a central number? There would then be one number where these things were reported. Although there were already different numbers for various institutions, this particular number would be the central number that could disseminate information down to those departments. This would even cover the small companies and people working as contractors, as there was a possibility that this information did not reach them. If there was a customer service centre, there would be one point to receive and disseminate information to various places. If this was considered, it would also assist the Committee in monitoring the monitor. Sometimes, people called these institutions and did not find joy. She said this so the Department could monitor those who were monitoring or receiving complaints.

On the issue of good faith, the information needed to be substantially true. The allegations needed to be substantially true and done in good faith. In a case where people had differences in their places of work and made allegations, these allegations still needed to be tested. Sometimes these allegations were investigated, the truth was not found, and the allegations were made maliciously. Before discovering that these allegations were false, money and time would have been wasted. What would happen to the whistleblowers who brought a report only to find that it was untrue? Where was that information tested?

Department’s response

Mr Mokulubete shared a slide from the guidelines to respond to the questions. There were different routes as to how Disclosures could be made. Route one could be made to a legal representative. Route two could be made to an employer. An employee could make a Disclosure to the employer. The Department was not making this institution a closed list. Many others were not included, because they were covered. Disclosures could be made to the employer of the institution itself. For instance, with the Department of Education as an employer, Disclosures could be made directly to the Minister. Route three stipulated that a Disclosure could be made to the Minister or Member of the Executive Council (MEC) of a province. The Department had looked into the issue of considering the Zondo Commission reports, and he hoped the chief director could give further details on that.

There was a project related to the Act itself, which was being reviewed in light of the recommendations made by the Zondo Commission. That was a separate project apart from this one, and would be an ongoing project. Those recommendations would be considered within that project.

On the customer matter, this was not a matter that the Department could do in these guidelines. There needed to be a body to establish the suggested call centre so it could cover everyone who wanted to submit Disclosures. However, there was a provision in the Act. For instance, if a Disclosures was submitted to a certain institution only to find it was not meant to be submitted there, the institution where the Disclosures was submitted was obliged to submit those Disclosures to the relevant institution.

The issue of good faith was also covered in the Act. This was covered in Section 9(B) under Disclosures of false information. If a person disclosed false information, that person could be found liable or guilty upon conviction. They could be given a fine or sentenced to prison for a period not exceeding two years. Although the intention was to ensure members of the public or employees were free to report any impropriety or criminality, they should do this without fear. However, there needed to be the element of good faith. If there was no good faith and the intention was to make false Disclosuress, then Section 9(B) kicked in. This was when a person was found guilty of disclosing false information.

Practical Guidelines 2011

The Department described the three different routes that could be followed to make Disclosuress.

Route 1 - Legal representative

In many instances, an employee would first wish to obtain legal advice regarding making the Disclosures in terms of the Act and, in this process, make a Disclosure to the legal adviser concerned.

The requirements were that the person being consulted by the employee must be a legal representative whose occupation must involve giving legal advice (for example, an attorney or legal representative of the employee’s labour union). The information must be given for the purpose of obtaining legal advice.

Route 2 -- Employer

An employee can make a Disclosure to his or her employer. The requirement was that the employee must act in good faith when he or she discloses the information. "Good faith” means that the employee must act responsibly and honestly without any motives to gain any personal advantages from making the Disclosures.

It should be noted that an employer may decide to lay down certain procedures in terms of which Disclosures must be made, even that a Disclosures must be made to a person other than the employer (a Disclosures of this nature would also be regarded as a Disclosures to the employer). Many employers have established anti-corruption hotlines, which employees may use to report crimes in the workplace.

Route 3 -- Minister or MEC of a Province

An employee can make a Disclosures to a Minister or a Member of the Executive Council (MEC) of a province. The requirements were that the employee must act in good faith when he or she discloses the information. This procedure applies only if the employee’s employer is an individual appointed by the relevant Minister of MEC in terms of legislation, or a body (e.g. a board or other institution) appointed by the relevant Minister or MEC in terms of legislation.

Follow-up discussion

Ms Maseko-Jele said there needed to be a body that came up with a view of one centre where people could go. Where was that body supposed to come from? The Department? In the explanation given by Mr Mokulubete, he had said that if somebody reported at the incorrect place, that information would be channelled to the right place. She wondered about the practicality of this. In this case, someone would have reported a matter in good faith. The Department was now telling this person they had reported it to the wrong place and needed to do it somewhere else. Could they not devise a way to make it simple for that person? This would ensure that the person did not run around.

The Department had also said it would assist with funding. She did not know if the Department would assist the whistleblowers and create a fund for those experiencing problems with funds during the process. The Committee wanted to know if the Department was ready. Did it have money? At the moment, some whistleblowers were out there alone with no funding assistance. They came up on television daily and complained that they were not being assisted -- they did not have money and were hiding. The Committee wanted to know if the Department was ready to address these issues. She brought this down to the ordinary person, who worked under contract even with private companies. Was it only in government institutions where people could report wrongdoing?

The Chairperson said some issues would be dealt with when the Committee looked at a comprehensive review of the legislation. Currently, it has dealt with part of subordinate legislation; it was not even dealing with the amendment to the primary legislation. This dealt with the regulations to the Act. These things need to be expressed in the primary legislation rather than in the subordinate legislation. If these things were not catered for, no enabling legislation would be amended. It would be problematic to put these into the subordinate legislation.

Follow-up response

Mr Mokulubete thanked the Chairperson, and said he was spot on. He acknowledged the submission by Ms Maseko-Jele, which was an important aspect to raise. He left it to his chief director to respond on whether the Department was ready to establish a body overseeing the call centre. On the issue he had raised, it seemed that a person could be moved around from one institution to another. The Act intended to avoid that -- if a person reported or disclosed some irregularity or criminality to a certain institution, and if that was the incorrect institution to deal with the impropriety, that institution was obliged to refer the matter to the correct institution. It did not mean the institution that received the complaint would return to the complainant and tell them to go to a certain institution. The institution itself needed to refer the complaint directly to the appropriate institution.

Adv Tsietsi Sebelemetja, Chief Director: Legislative Development, DoJCD, confirmed that research was being conducted in response to the recommendations from the Zondo Commission. He noted the importance of ensuring a central place and mechanism for monitoring. The review also looked at witness protection issues and the combination of the two. The Department would discuss the protected Disclosures and protection of witnesses and see how it could come up with a solution. A symposium in July would deal with whistleblower protection and see how the public service could respond to the current challenges.

Closing remarks

The Chairperson thanked the Department and asked the Committee if it was happy with the responses, or if anyone wanted to make a follow-up. He said the Committee should try to adopt the report on the guidelines next week. These regulations needed to go to the National Assembly.

The meeting was adjourned.