Whistleblower Bill: final discussion

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
14 March 2000
PROTECTED DISCLOSURES BILL

Documents handed out:
Protected Disclosures Bill (Working Document, dated 14/03/2000)
Draft Resolution (email [email protected] if required)

SUMMARY
The whole of the Protected Disclosure Bill was discussed, including the preamble and the Draft Resolution. The definitions of 'employer' and 'employee' were agreed upon. It was agreed to bring section 10 under the definition of 'protected disclosure'. Section 2(4) was discussed extensively and it was proposed that it be deleted and that this matter be addressed in section 4. Section 4(1) was discussed. The Bill will be voted upon on Wednesday 15 March.

MINUTES
The Chair, Adv J de Lange (ANC), remarked that the Committee had discussed the issues of the Protected Disclosure Bill and should now consider the wording. He stated that most of the issues had been agreed upon. Some issues, which had been suggested should be in the Bill, are included in the Draft Resolution.

Sections 51 & 52 of the Criminal Law Amendment Act (the "minimum sentences" Act)
As a preliminary issue, it was brought to the members' attention that there was a Motion in the Order Paper concerning an extension of the period of operation (from one to two years) of sections 51 & 52 of the Criminal Law Amendment Act (the "minimum sentences" Act). The Chair stated that he had discussed the matter with opposition party leaders. He stated that most of the parties have indicated that they are willing to extend the life of the Act.

Protected Disclosures Bill
The Chair stated that the Preamble would be addressed at the end of the discussion.

Section 1 - Definitions
S 1(i) - 'disclosure' - The Chair noted that paragraph (g) (the English Law provision concerning the element of concealment) has been re-inserted.

The Chair remarked that most of the members had agreed that 'in an unlawful manner' should be deleted from paragraph (e). He noted that it will be included as an option to vote upon.

The Chair recognised that some members were concerned that paragraph (f) repeats the provisions of paragraphs (a), (b) and (c). The Chair acknowledged that there was repetition, but that paragraph (f) is a "specific repetition" and included because of the country's specific history.

The Committee agreed on the rest of the subsection.

S 1(ii) - 'employee' - The Chair observed that there were three options and expressed a preference for Option 2 which comes mainly from the Labour Relation Act. He stated that this option seems to be the safest way to go. He noted that it excludes the independent contractor. He remarked that, if an option is decided upon which differs from the definition in the LRA, there may be difficulties. He stated that the Bill should capture the employment relationship as it exists.

Ms S Camerer (NNP) pointed out that there were 4 choices - the original definition and the three options. Mr S Swart (ACDP) expressed his support for Option 2, as did Ms Camerer.

The Chair noted that all the members seemed to be in agreement.

S 1(iii) - 'employer' - The Chair stated, that if Option 2 of the definition of 'employee' is adopted, so should Option 2 of the definition of 'employer'.

The drafter, Mr Johan de Lange, pointed out that the wording of paragraph (b) needed to be changed from 'assist him' to 'assist him or her'. The Chair confirmed this.

S 1(iv) - 'impropriety' - The chair noted that the original formulation has been abandoned and that it had been agreed to adopt the option. He noted that paragraph (c) has been moved to section 2(2). Section 2(2) now contains all the provisions relating to retrospectivity. All the members agreed option as drafted (with the omission of the portions in square brackets).

S 1(v) - 'occupational detriment' - The chair noted that the original formulation proposed an open list and a catch-all paragraph. The Option provides a closed list, but an open paragraph (i).

The Chair noted that 'or election' had been deleted from paragraph (g). He stated that there seemed to be no circumstances in South African Law under which a person is elected to employment.

There was general agreement on this definition.

There were no difficulties with the definitions of 'organ of state' or 'prescribed'.

S 1(viii) - 'protected disclosure' - The Chair remarked that what is provided for here will depend on what is done in the rest of the Bill. Paragraph (a) in the original formulation refers to a disclosure made in terms of s 5. The Chair drew the members' attention to the proposed changes to s 5, which define from whom legal advice may be sought. This proposition will benefit the employee because the persons from whom advice may be sought will be familiar with the rules regarding the confidentiality and privilege of such a consultation.

The Chair noted that 'or body' has been inserted into paragraph (e) so as to conform to paragraph (d).

The Chair noted that the Option brings section 10 into the definitions section. He proposed a further option - that the option in the draft be inserted after the original formulation and that the first part of paragraph (viii) be deleted. This would read:
'(viii) 'protected disclosure' means a disclosure to - (a) any person in accordance with section 5… - (e) any other person or body in accordance with section 9,
but does not include a disclosure in respect of which the employee….'.

Mr de Lange stated that he was happy with this formulation.

The Chair noted that, if this formulation is adopted, two changes to the Bill are necessary: Firstly, section 10 must be removed and secondly, 'subject to section 10' must be deleted from each of sections 5 - 9.

There was general agreement regarding this proposition.

There were no difficulties with the definitions of 'Minister' and 'this Act'.

Section 2 - Objects and application of Act
S 2(1) - The Chair noted that this would be discussed at the end together with the preamble.

S 2(2) - The Chair noted that this "restrospectivity clause" was very clever. There were no problems expressed.

S 2(3) - The Chair provided an example of the type of situation which this subsection should address. The Chair noted that the new paragraph (b) covers most instances where there is an attempt to regulate the operation of the Act by agreement. The Chair questioned whether the formulation could be fine-tuned.

Mr M Masutha (ANC), who had initially proposed the paragraph, stated that the concept is captured but that the formulation might not be ideal. He stated that he would put some thought into it.

S 2(4) - The Chair noted that this provision is not found in English Law, but that it is not necessary in English Law because whistle blowing is addressed within their labour statutes.

He stated that s 2(4) is not necessary if the Act is interpreted in a logical manner. However, the Act might not be so interpreted and it was therefore necessary to include s 2(4).

The Chair noted that there was the further issue concerning the insertion of 'or an employer'. He remarked that if it is not inserted this may imply that, while the employee's remedies are not affected, the employer's might be.

He concluded that there were consequently two issues: Firstly, whether s 2(4) is necessary and secondly, if it is necessary, whether the wording is correct, particularly regarding the inclusion of 'or an employer'. He invited suggestions.

The Chair suggested that 'or defence' be added after 'remedy' and asked whether a remedy would include a defence. Mr de Lange responded that 'remedy' would cover 'defence'. He remarked that if it is provided that the Act preserves the common law (as s 2(4) does), an employer might argue that, notwithstanding the provisions of the Act, the common law fiduciary relationship between the employer and employee remains intact. The employer could argue that this fiduciary relationship prohibits an employee from blowing the whistle.

The Chair remarked that this was a good point. The Act does in fact alter the fiduciary relationship somewhat. He asked whether Mr de Lange was implying that s 2(4) should be removed. Mr de Lange confirmed that he was. The Chair asked whether it was then perhaps better to include this subsection in the Resolution.

Ms F Chohan-Khotha (ANC) suggested that another solution would be not to insert 'or employer' and that there would be interpretation problems if s 2(4) were omitted.

The Chair argued that Mr de Lange's point was correct. He stated that most of the employment relationship is governed by statute and some of it by the common law. The Act protects a whistle blower from suffering a detriment and this is contrary to the law as it stands in some respects. The Act changes the law to a degree and it can therefore not be provided that the law is frozen, as s 2(4) implies.

The Chair repeated that perhaps Mr de Lange was correct in suggesting that the subsection be deleted. Ms Chohan-Khotha remarked that not much turned on this.

Mr Masutha stated that he thought that it was necessary to include 'or an employer'. The way he understood the matter, the Bill attempts to capture the LRA system. If only one side of the equation (the employee) is dealt with, there could be an imbalance.

The Chair pointed out that it was proposed that the whole of s 2(4) be deleted and not just 'or an employer'. He repeated that the Bill changes the fiduciary relationship between the employer and employee. It was therefore not correct to say that the law is frozen and that the Bill does not change the legal position.

Mr Masutha stated that the source of his confusion might be that he did not know what the original motivation for the clause was. He stated that originally labour law was dealt with in the common law. The LRA then introduced the notion of unfair labour practices. This Bill then adds to, rather than alters, the unfair labour practices in the LRA.

The Chair responded that the Act's extension of unfair labour practices is something that Mr Masutha was implying into the Bill. It has not been explicitly stated that this is what the Bill does.

Mr Masutha stated that the purpose of the subsection was to protect the rights in the LRA by making use of the provisions of this Act.

The Chair emphasised again that s 2(4) as it stands is simply not true - the Bill does change the legal position. He stated that the subsection should be included in the Resolution. It should be stated in the Resolution that the Committee had considered including the subsection, but that it felt that it did not reflect what the Act in fact does. If there needs to be a revision, this should be left to a revision of the LRA.

Dr J Delport (DP) remarked that the Committee has drafted an elegant Bill. However, as the Bill stands, section 2(1) states that the Act provides remedies, s 2(4) provides that existing remedies are not affected and section 4 provides for additional remedies. He stated that it would be neater to provide a general clause that says that existing remedies are not affected and that new remedies (in section 4) are created.

The Chair stated that there had been an attempt to do what Mr Delport had suggested but that this was not so simple. It could not be provided that the existing employment relationship does not change while, in fact, it does. He stated that he was in agreement with Mr de Lange that s 2(4) should be left out, but that he would have preferred it if there could have been a general provision preserving existing remedies. It appeared, however, that this could not work.

Ms Chohan-Khotha stated that the clause could speak in terms of procedural remedies. The provision could read that the Act does not substitute existing procedural remedies.

The Chair stated that there were two problems with this suggestion. Firstly, he doubted whether this was a term used in labour law and secondly, the question of 'occupational detriment' is linked to the substantive position of the employee - the Bill is not only concerned with procedure.

Ms Chohan-Khota stated that the question was whether the Bill should provide that the provisions of the LRA could be used to give effect to this Bill.

The Chair stated that this was not the point of s 2(4). The subsection was intended to provide that existing remedies are not excluded. If the subsection is omitted, the Act does not prescribe that the provisions of this Act should be used first and then that the provisions of the LRA should be used in the alternative. The Act will remain as a shield and how the shield is used would be worked out in practice. Omitting the subsection will allow the Act to grow into the labour laws and precedents would emerge quickly.

Mr Masutha stated that the question being dealt with was the extent to which the Bill amends the common law and statutory law concerning the employment relationship. A second issue is the vehicle for exercising remedies - the question of what mechanisms could be used to obtain the protection of the Bill.

He stated that there were two ways of approaching this: Firstly, the matter could be left to the courts or secondly, the courts could be provided with guidelines (which is what s 2(4) is intended to do). He remarked that the Committee had to decide on which approach it should take and then it had to decide on the procedural framework for enforcing the rights under this Bill.

He proposed that as far as amending the labour law is concerned, this should be left to the courts. Section 2(4) should therefore relate to procedure only and should address which law should be used to enforce the rights under the Bill.

Dr Delport supported the removal of s 2(4). However, section 4 could then be changed: The title could be 'remedies' and could provide that 'any employee may approach a court having jurisdiction any may use the common law or any procedure in terms of any other law to enforce the provisions of this Act'.

Mr de Lange stated that this could work. He observed that the matter had been discussed before. Australian law allows a person to use either the avenue of tort or the avenue of the labour legislation. The only caution was not to create a new cause of action. He stated that it was an easy option to omit s 2(4) and to provide the suggested addition to s 4 as an option.

Mr Masutha suggested that the addition to s 4 should not be confined to approaching a court with jurisdiction. It must be provided that a person may approach a tribunal or court so as to accommodate the CCMA. The Chair agreed.

Section 3 - Employee making protected disclosure not to be subjected to occupational detriment
There were no difficulties and the Committee settled on the option as drafted.

Section 4 - Additional remedies
The Chair noted that a new s 4(1) would be worked on (as discussed above). The Chair commented that the existing s 4(1) is vague and asked whether the Department of Labour was satisfied with the subsection.

Mr de Lange responded that the Department thought that the subsection was not a problem and that it accurately reflects the law as it stands.

The Chair raised a concern regarding the subsection. He stated that the easiest way for an employee to be transferred if an employer has refused to transfer him or her, is to make a disclosure and use the subsection. There needs to be a link, therefore, between the making of a disclosure and the transfer, for example to provide that there may only be a transfer 'if the employment situation would be made intolerable'.

Dr Delport suggested that there should be a transfer only if the employee can show a 'likelihood that detriment will be suffered'.

The Chair proposed that the clause should read: 'if an employee makes a protected disclosure and reasonably believes that he or she will suffer detriment…'. He also proposed that 'reasonably possible' be changed to 'reasonably practicable'.

Section 5 - Protected disclosure in course of obtaining legal advice
The Chair noted that this section had already been looked at. The persons from whom advice may be sought have been more narrowly defined. 'Subject to section 10' has been deleted. Adv H Schmidt (DP) proposed that 'made' be inserted before 'to a legal practitioner' in s 5(a).

Section 6 - Protected disclosure to employer
The Chair note that 'subject to section 10' has been deleted and that there are a number of minor technical changes. He raised a concern regarding s 6(1)(c). The paragraph seems to be in conflict with the definition of 'disclosure' as it concerns persons who fall outside the employment relationship and it was difficult to come up with an example of where this paragraph would apply.

The co-drafter, Mr H Du Preez noted that there was the example of a person who works for a nursing agency. The agency would provide the staff for an old age home. The paragraph would apply where the nurse discovers impropriety in the old age home and complains to the owner of the home, who is not the employer.

The Chair noted that even in this situation, the paragraph was not necessary - the nurse could simply make the disclosure to the nursing agency. It is only the agency that can effect the detriment and not owner of the old age home. Mr de Lange noted that an employer includes a person who assists in the carrying on of a person's business. He stated that the paragraph is therefore not necessary because there is an employment relationship between the nurse and the home.

The Chair stated that there was no need to include paragraph (c) here and that the matter could be addressed in the Resolution. He noted that where clauses that have not been included in the Bill are referred to in the Resolution, the clauses should be set out in the Resolution.

It was agreed that the paragraph should be deleted and should be referred to in the Resolution.

Section 7 - Protected disclosure to members of Cabinet or of the Executive Council of a province
The chair noted that 'subject to section 10' must be deleted. He noted that Mr de Lange had suggested inserting paragraph (c). He remarked that the provisions of paragraph (c) might be covered under paragraph (b). However, paragraph (b) could be interpreted narrowly and therefore paragraph (c) should be included. There were no further concerns raised and it was agreed that paragraph (c) should be included.

Section 8 - Protected disclosure to certain persons or bodies
The Chair state that 'subject to section 10' must be deleted. The National Director of Public Prosecutions (paragraph (c)) has been deleted. The matter will be addressed in the regulations. They will set out exactly what complaints made to prosecuting authorities will constitute protected disclosures. 'Or prescribed in terms of' has been inserted in subsection (2). There were no further problems with section 8.

Section 9 - General protected disclosure
The Chair noted that Mr de Lange had pointed out that it is problematic if disclosures in terms of sections 5 - 8 are interpreted as falling under section 9. This would place the restrictions in s 9 on disclosures in terms of sections 5 - 8. The phrase 'other than a disclosure made in accordance with section 5, 6, 7 or 8' has therefore been included.

Ms Chohan-Khotha noted that she had not thought through the implications of this inclusion. She asked what would happen if a disclosure is made in terms of section 5 or 6 and nothing comes of it. More evidence could come to light later. She asked whether a new case could then be brought under section 9.

The Chair responded that this would be possible as the sections are not mutually exclusive. Ms Chohan-Khotha argued that the inclusion in fact contradicts this intention.

The Chair responded that this might appear to be the case on first blush. On further consideration, it is clear that nothing prevents a person making a disclosure in terms of each of section 5 - 9, but that for each disclosure to be protected and for the Act to function as a shield, the person must follow the procedures set out in each section.

Ms Chohan-Khotha repeated her concern that the inclusion may imply that each section is mutually exclusive. She stated that the use of 'other than' gives rise to this implication.

Mr de Lange repeated that the inclusion does not render the sections mutually exclusive. He asked Mr de Lange for his opinion. Mr de Lange noted that he understood Ms Chohan-Khotha's concern, but that it was not necessarily a justified concern. He stated that formulating it something like 'in addition to disclosures…' might better state the concept. The Chair asked that this formulation be included in square brackets.

The Chair noted that 'subject to section 10' should be deleted.

Section 10 - Disqualification
This section has been moved to the definitions section.

Section 11 - Regulations
The chair noted that the necessary changes had already been made. There were no further problems.

Section 12 - Short title and commencement
It has been decided that the title will be the 'Protected Disclosure Act'.

Preamble
The Chair noted that the long title was clear and simple - it no longer refers to remedies. Mr de Lange noted that the third paragraph now refers to 'crime and other improper conduct' - (it previously referred to 'corruption, crime, maladministration and other improper conduct). The Chair pointed out that, following Ms Chohan-Khotha's suggestion, the elements of transparency and accountability have been included in the third paragraph.

Mr de Lange noted that paragraph 4 has changed. The fifth paragraph now refers to the employee - (it previously referred to the employer only). Mr du Preez noted that the element of protection against reprisals has been included in the sixth paragraph.

Mr Schmidt suggested using 'neither… nor' rather than 'neither… or' in the forth paragraph. The chair suggested that this be looked at. There were no further problems with the preamble.

Section 2 - Objects and application of Act
The Chair noted that in the option, sections 2(1)(d) & (e) have been deleted - they are included in the preamble. He stated that the list in (a), (b) & (c) is simple and that all the other niceties have been included in the preamble. There were no further problems.

Chair's Summary
The chair clarified the major issues that need to be clarified: The definition of 'protected disclosure' needs to be changed as discussed. Mr Masutha will look at rephrasing section 2(3)(b). There needs to be a new draft of section 4(1) so as to provide a requirement of a reasonable belief that there will be detriment before there can be a transfer after making a disclosure. Section 9(1) needs to be considered.

Draft Resolution
The Chair suggested going through the Resolution to see whether any obvious concepts had been left out. He stated that if the members have technical problems, they should speak to Mr de Lange individually.

The Chair noted that 'and the Committee concluded that' (section 2) should be introduced as a new sentence (The Committee concluded that…). He stated that each of the provisions suggesting that the South African Law Commission undertake research should be included at the end of the Resolution. A concluding paragraph would therefore provide that the SALC should investigate x, y and z.

The Chair repeated his point that wherever it is mentioned that a provision in the Bill has not been included, the omitted provision should be set out.

Dr Delport suggested deleting 'By' from section 4(b). The chair noted that this paragraph refers only to civil disputes, but that the constitutional right covers civil and criminal disputes. This requires correcting.

The Chair proposed inserting into paragraph (c) the example of a crooked person who makes a disclosure regarding some other impropriety. The question is whether such a person should be indemnified. There needs to be a paragraph break between "…the public." and "The Portfolio Committee" in paragraph (c).

The Chair noted that 5.1 and 5.2 needed to be presented so as to indicate clearly that they are alternatives.

Conclusion
The Chair concluded that the Committee would meet again at 09h30 the following day (Wednesday 25 March) to vote on the Bill. He stated that he thought that the Resolution was excellent. He stated that there is an attempt to set a date in the second week of April for the hearing of the Bill in the NA. He noted that the Committee was still waiting for a date for the budget vote. He stated that when the Committee meets again in the second week of April, the issue of public submissions on the Bills before the Committee needed to be discussed.

Dr Delport thanked the Chair for his hard work and the Chair extended his thanks to Mr de Lange of the Department. The meeting was adjourned.