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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
8 March 2000
"PROTECTED DISCLOSURES" BILL
Protected Disclosures Bill [6/3/2000)
The Committee considered Sections 4 - 12 as well as preamble and the objects clause and decided that the title would be the 'Protected Disclosures Bill'.
The Chair summarised the major outstanding issues at this point:
- Section 5, those from whom legal advice may be sought, must be refined;
- A new general section is required which provides that the Act does not affect all exiting remedies.
- The possibility that the Act will be made inapplicable by an agreement to place obstacles in the way of its operation must be addressed in 2(3);
- There is the possibility of including section 10 in the definitions section.
The committee hopes to achieve consensus rather than have to vote on options it has identified for certain clauses as it is important for the Committee to send out a unified message. The Committee will vote on the Bill next Wednesday,15 March.
The Committee briefly discussed a draft programme for the next few months.
The Chair, Adv J de Lange (ANC), noted that he had received a request for some members to be excused at 12h15 to participate in a march against gun violence. He stated that the meeting would consequently adjourn early and that time was therefore limited.
Section 4 - Additional remedies
The Chair remarked that much of this section will be moved to the Resolution. The drafter, Mr de Lange, would however draft a general clause providing that other legal remedies will not be affected by this Act. He noted that the Labour Department has indicated that it is not averse to including s4(1) and s2 as formulated in Option 2. He noted that the Resolution should not be directed at the Labour Department exclusively.
Dr Delport indicated that there is general agreement on this course of action.
Section 5 - Protected disclosure in course of obtaining legal advice
The Chair remarked that he had a problem with the formulation of this section - it is completely open-ended. The intention behind the provision is that workers should be able to go to a lawyer or a shop-steward to obtain advice. The formulation is, however, so open that it allows a person to go to anyone to 'obtain legal advice'. It is so open that it could cover what is provided in other sections. He suggested that there be a limit on who could be approached for legal advice. He suggested using the phrase 'a person who usually gives legal advice'.
He noted that there is a problem where an employee makes a disclosure that hurts his or her employer. He cited the example of a company that intends to engage in mining activities on Table Mountain. The company might be in the initial stages of planning such as conducting an environmental impact assessment. The company has not yet done anything illegal and may indeed not go ahead with the plans.
The employee may, however, wish to expose the plans. This exposure could undermine the company's endeavors, despite the company's not having done anything wrong. The employee could go to almost anyone to make the disclosure under the guise of seeking legal advice. This type of disclosure would not amount to defamation, but it would harm the business interests of the company. Protecting these sorts of disclosures should therefore be guarded against. He concluded that the new s10(1)(b) read with s5 results in s5 being far too open.
Mr de Lange stated that he agreed with the concerns as articulated by the Chair. The Chair stated that the concern has been raised, that he had proposed a solution and that the matter was open for discussion.
Mr Mzizi (IFP) noted that many black persons cannot afford attorneys and that there needed to be protection when legal advice is sought from other persons. He suggested that the seeking of legal advice from 'a trustworthy person', for example a religious minister, should be protected. Such a trustworthy person is one who would not go to the media etc.
The Chair noted that this would be difficult to apply in law. He remarked that he did not know of any person who did not regard him- or herself as trustworthy. He stated that Mr Mzizi's point about the expense of obtaining advice from lawyers was important. This is why the formulation of 'person who usually gives legal advice' has been suggested - it includes the shop-steward.
The Chair concluded that section 5 should be limited to 'persons who usually provide legal advice'.
Section 6 - Protected disclosure to employer
The chair noted that there were no particular problems here.
Mr de Lange observed that a paragraph (c), dealing with disclosures to third parties, still needed to be inserted into s6(1). The Chair confirmed this - it provides for the situation where the employer is the person engaged in the impropriety. In this case, the employee could not be expected to make the disclosure to the employer.
Mr de Lange raised the concern regarding the determination of whether there is an employment relationship and stated that this would be sorted out.
Section 7 - Protected disclosure to member of Cabinet or of the Executive Council of a province
The Chair noted that there were no major problems with this section. He remarked that there had been a concern in the past regarding the ability of a person to make a disclosure to any Minister. He stated that he had raised the concern, but that the other members had not seen this as a problem. He stated that it should be seen how this will work in practice and that if any problems arise, they could be dealt with at a later stage.
Ms G Magwanishe (ANC) questioned whether a disclosure to a Minister could be regarded as protected legal advice. The Chair responded that it could not be.
Ms Magwanishe asked what would happen if a complaint was made to the wrong Minister and that Minister directed the complaint to the relevant Minister. The Chair responded that this did not affect the protection afforded to the disclosure. He stated that a disclosure to any Minister would be a protected disclosure and that Ms Magwanishe's questioned related to what might occur in practice after a protected disclosure has been made.
Section 8 - Protected disclosure to certain persons or bodies
The Chair noted that the previous paragraph (c) (disclosures to Directors of Public Prosecutions) had been deleted. The reason for the deletion is that the Bill should not give the impression that every complaint to a Director or Prosecutions constitutes a disclosure. He asked Mr de Lange about the alternative solution to this problem - confining disclosure in this context to a 'disclosure in terms of this Act'.
Mr de Lange stated that he had not looked at this, but that disclosure was a defined term and therefore every reference to disclosure in the Bill must be interpreted as a disclosure in terms of the Bill.
Dr J Delport (DP) remarked that he was unhappy with the deletion of paragraph (c). A person who lays a criminal complaint might be subject to victimisation. He argued that if such a person goes to a public prosecutor and follows the procedures in the Bill, he or she should be protected, even if he or she is laying a charge.
The Chair noted that it was correct that the protection of the Act would generally be available if the procedures in the Act are followed. The problem is, however, that by treating the laying of a charge as a protected disclosure, indemnity (which was provided in section 3 and has now been omitted) is brought in "through the back door". He stated that, if Dr Delport's suggestion was to be provided for, the definition of 'disclosure' would need to be extended.
The Chair, however, that having listened to Mr Delport, qualifying disclosure to read 'disclosure in terms of this Act' perhaps goes too far. He explained that a person who is unaware of the provisions of the Act might make a disclosure. This disclosure could be one that should be protected. However, if 'disclosure' is qualified, the protection of the Act could be denied because such a person is not making a disclosure 'in terms of the Act.'. He concluded that the solution should not narrow the ambit of the Bill and that it was probably best to leave the issue of Directors of Public Prosecutions to the regulations. Exactly what complaints are to be regarded as protected disclosures could be specifically set out in the regulations.
Mr de Lange remarked that it was not necessary to omit Directors of Public Prosecutions from section 8. All that needed to be provided is that a disclosure in terms of the section does not include the laying of a charge.
The Chair concluded that it as the Committee's view that Directors of Prosecutions should be regarded as prescribed bodies, but that they should be dealt with in the regulations, and not in section 8.
The Chair concluded the discussion of section 8 by noting that 'or prescribed in terms of' has been inserted after 'referred to in' in subsection 2.
Section 9 - General protected disclosure
Mr Mzizi (IFP) remarked that he had difficulty in seeing how it could be tested that a disclosure is not for personal gain. When a disclosure is made, the recipient will listen to the disclosure and will not be concerned with what the motivation is.
The Chair responded that if it comes to light that the disclosure was made for personal gain, the disclosure will not be protected. He stated that this was an evidential question. The law provides the notice that disclosures for gain will not be protected. In a labour dispute, for example, the employee may allege that he or she has been fired because of a disclosure to the media of criminal activity engaged in by his or her employer. The employee, in addition to the other requirements, must aver that the disclosure was not made for personal gain. This averment could then be challenged by the employer - the relevant media body might be issued a subpoena and be asked whether the information was paid for. It will be a matter of evidence.
Ms Chohan-Khotha (ANC) raised the exclusion of disclosures made when there are rewards payable 'in terms of any law'. She noted that this would cover rewards offered by the state, but not rewards in the private sphere.
The Chair remarked that he could not imagine an example of this but stated that this did not mean that he regarded private rewards as an outright impossibility.
Ms Chohan-Khotha state that there was nothing illegal in a private body's offering a reward. The Chair responded that extending the exclusion to private rewards would create a loophole - the media could simply say that a reward, as opposed to payment for personal gain, is offered for information.
Section 10 - Disqualification
The Chair stated that Mr de Lange had been asked the previous day to look at whether these disqualifications from what constitutes a protected disclosure could be included in the definition of 'protected disclosure'. He stated that Mr de Lange would work on this as an option. He noted that the square-bracketed portion had been deleted.
Section 11 - Regulations
The Chair noted that the issue of the Public Services Commission in s11(1) had been discussed. Mr de Lange had indicated that it should be required that the Minister for Public Service and Administration be consulted by the Minister of Justice in the drafting. There would be a protocol problem in excluding consultation with the Minister for Public Service and Administration. He stated that he saw no difficulty in providing for consultation simply with the Minister.
The Chair noted that s11(1)(b) has been replaced. The old paragraph refers to 'notice required by this Act' but that the Act does not provide for any notices. He stated that any notices that may be made will be covered by paragraph (a) and the new paragraph (b).
The Chair noted that 'or the National Director of Public Prosecutions' has been deleted from subsection (c).
The chair raised a concern regarding the 'in consultation' requirement in section 11(5)(a). He stated that in the past legislation has not been implemented because persons who are required to consult with each other are unable to see eye to eye.
Mr de Lange remarked that it was unnecessary to require consultation of this nature and parliamentary approval.
The Chair noted that there was general agreement that the section should state 'after consultation with the Minister...'.
Dr Delport questioned whether the Minister's official title is the Minister 'of', or the Minister 'for' Public Service and Administration.
Mr de Lange stated that he would investigate this.
The Chair pointed out that the numbering is incorrect - there is no subsection 2.
Section 12 -Short title and commencement
The Chair noted that the question of the title of the Act is important. He stated that he had put some thought into the matter and that he has been discouraged from going for 'Whistle Blower Act'. He supported 'Protected Disclosures Act'. It covers what it referred to in the Bill - it summarises the content of the Bill. He noted, however, that this was his personal choice. He stated that Dr Delport has also voiced his support for this option and the DP and the ANC were therefore in agreement here.
There was no opposition to this title and Mr Mzizi noted that it would translate well into Zulu.
The Chair summarised the major outstanding issues, now that the Committee had gone through most of the Bill. There are areas where a conceptual reworking is required. Section 5, those from whom legal advice may be sought, must be refined. A new general section is required which provides that the Act does not affect all exiting remedies. The possibility that the Act will be made inapplicable by an agreement to place obstacles in the way of its operation must be addressed in 2(3). There is the possibility of including section 10 in the definitions section.
There are other technical refinements to be made. He stated that for some matters, options have been provided, and these will be voted on.
Ms Camerer urged that the members reach consensus rather than vote on the options. She stated that agreement was possible.
The Chair stated that he was willing to work hard on achieving consensus and that it is important for the Committee to send out a unified message.
The Chair stated that the Committee should vote on the Bill the following week, on Wednesday at the latest. A Bill could therefore be sent to Parliament before the upcoming recess. A debate in the House should happen as early as possible.
The Chair noted that there needed to be a new point, under the subheading 'And in order to...', which could read 'to create guidelines to protect persons who make disclosures'.
Dr Delport observed that the preamble refers repeatedly to 'corruption, crime, maladministration and other improper conduct', but that these terms are not used in the Bill.
The Chair suggested that this term be used once in a general statement regarding the Act's aims and thereafter 'impropriety' could be used.
Ms Camerer questioned how the general horizontality provision fits with the rest of the preamble.
It is important that this be explicitly stated. It is possible that the Act may be challenged by employers on the grounds of unconstitutionality. He stated that it is less common for legislation to limit rights in the private sphere, but that such a limitation is possible. This provision makes it clear that rights in the private sphere are affected. He stated that this provision could be looked at further.
Ms Chohan-Khotha noted that the phrase 'good and efficient governance' misses the elements of openness and accountability. She suggested that similar qualifications should be placed upon 'corporate governance'.
The Chair, regarding the 'corporate governance' element, stated that the present general formulation avoids debate. The King Report on Corporate Governance refers to the principles of good governance, one of which is openness.
Dr Delport returned to the earlier discussion regarding replacing 'crime, corruption' etc with 'impropriety' in the preamble. He suggested that the phrase 'criminal and improper conduct' be used.
It was suggested that the preamble should provide that 'the employer and employee have a responsibility to address corruption...' as both bear this responsibility. The Chair regarded this as an excellent suggestion.
There were no more comments regarding the preamble. The chair noted that it is broad and fairly uncontroversial.
Section 2 - Objects and application of the Act
The Chair noted that s2(1)(b) is strongly worded and that it had been fine this way when the Bill had provided the remedies in s4(1). It would be better to indicate that the Bill does not affect existing remedies and provides limited new remedies.
The Chair noted that Mr de Lange should look at including the 'transparency' and 'openness' element here.
The Chair stated he would like to see a new paragraph (a) which indicates that the Bill provides procedures for making protected disclosures (the present (a) would become (b) etc). This provision should also indicate that there are various options (the "five doors" notion) and procedures.
The Chair raised a difficulty with the word 'vitimisation' It is not used in the Bill - the Bill uses the word 'detriment'. He said that this was not serious. A word that is not used elsewhere can be used in the objects clause.
Mr de Lange noted that the New South Wales legislation uses the term 'reprisals'. The Chair approved of this term and Ms Chohan-Khota noted that it is used in the preamble.
The Chair asked whether a preamble is necessary if there is a strong objects clause and remarked that this was Mr de Lange's view. He stated that the objects clause is a stronger tool of interpretation. He stated that he was "lukewarm' and that there were strong arguments on both sides.
Ms Chohan-Khotha remarked that if the objects clause is to contain everything in the preamble, it will be very long.
Mr Mzizi voiced support for having a preamble and an objects clause.
The Chair He stated that the Committee would not meet on Friday. This means that, on Tuesday, the Committee would have to go through every clause and make final amendments and on Wednesday the Committee would vote. The Bill will then be placed on the Order Papers for debate in the NA in early April. From there, the Bill will go to the NCOP.
Ms Camerer requested that the issue of the recognition of foreign legal qualifications needed to be revisited by the Committee. The Chair noted that the Minister has been considering reciprocity arrangements with SADC countries. He suggested that Mr de Lange be requested to prepare an input for the Committee the following week concerning the position of the Department and how far the process had come. The Chair noted that time needed to be provided for discussion of the lapsed Bill regarding lawyers and foreign qualifications.
The Chair stated that he was trying to obtain information regarding the date of the budget vote.
Mr Nel stated that he had no information in this regard. The chair requested Mr Nel find this out, so that the information could be passed on to the Committee. He stated that he hoped to start on a programme for the budget vote soon. He stated that he wanted the department to provide a more analytical address rather than a simple presentation of information.
He stated that the National Director of Public Prosecutions should address the committee, as well as the Legal Aid Board, the SAHRC and the Gender Commission. He said that the Committee should get as many of these bodies in as possible so that the members could have a full picture of the portfolio before the budget debate.
The Committee would not meet in the first week of April because the JSC would be meeting then. There will be a meeting in the first week only if there is a matter of urgency. The Chair adjourned the meeting.