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JUSTICE and CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
2 March 2000
"PROTECTION OF DISCLOSURES" BILL
Working Draft of Bill dated 29/2/2000
Discussion focused on final instructions to the drafter, Mr Johan de Lange, in anticipation of finalisation of the Bill next week.
Clause 10 Unlawful disclosures
The Chairperson, Adv de Lange (ANC), noted that work on this draft Bill is almost done, with only a few open issues remaining. The first to be addressed was whether a specific provision criminalising contraventions is necessary. The Chair stated his belief that inclusion of such a provision is unnecessary, noting that it would create too much mischief in the employer/employee relationship. It would be used as leverage when individuals jockey for position when disputes arise in that context.
The Chair then requested comments. Dr Delport (DP) queried whether intentional falsehoods should not be criminalised. Another opposition member added that without criminalisation there would be no consequence for defamatory disclosures and allegations. The Chair acknowledged that without sanctions the constitutional protection of human dignity could be undermined, but noted that the act does nothing to prevent use of existing civil and criminal remedies when appropriate.
Further, he stressed that the way the bill is structured there are built-in safeguards in the "doors one walks through" to become protected under the provisions. The "first doors" include bringing complaints to the employer, to the government minister who appointed said employer, or to a prescribed organisation (all of which are private procedures which minimise the chances for defamation). However, while a discloser can go straight to the "second door" of the media, if his facts are incorrect the disclosure is not "protected" under the act, and he will be subject to criminal and civil sanctions already available. The Chair went on to observe that, in this respect, the more "public" the discloser goes, the higher the credibility/accuracy threshold he needs to cross in order to be protected under the act.
Ms Chohan-Khotha (ANC) agreed with the Chair that existing sanctions are generally adequate. However she wondered whether an added punitive damages remedy for reprisals by employers might be appropriate. The Chair allowed that while that might be a good idea, "this act is a shield, not a knobkerrie", and that without research as to the effects of adding remedies, it is preferable to rely on those which already exist. Mr Masutha (ANC) concurred on this, but Ms Taljaard (DP) noted that other jurisdictions have criminalised reprisals. However, the drafter, Mr de Lange, suggested that doing so opens a minefield, in that employees could raise reprisal allegations whenever they are dismissed. He also noted, in response to a query from Ms Jana (ANC), that a contravention of this act would amount to "crimen injuria", and entitle the person harmed to appropriate remedies.
The Chair indicated that while no criminalisation provision would be included, the resolution to accompany the act, elaborating on issues requiring more research and which may be appropriate to be covered by later amendments, or regulations, can mention this one.
The next point considered was the language of Clause 10(1)(a), and the consensus was that the phrase "contravenes any law" should be changed to "commits any offence" so that the scope of the provision is appropriate.
Clause 12 Short Title of the Act
Several suggestions for the title of the Bill were made and the Chair advised that he would consider these over the weekend.
He requested the drafter to consider paragraph 12 of the comments of Mr Calland of IDASA when finalising the next draft of the Bill. The Chair noted that if issues where more information is necessary are to be handled via use of the Resolution, then the Bill is nearly ready, subject to review of the final draft by the committee and input from the political parties.
He said that he expects the Bill to be finalised next week, and has scheduled committee meetings on this matter for 7 March (9:30AM) and 8 March, with Friday also available if necessary.
The meeting was then adjourned.