Whistleblower Bill: voting & draft resolution

Meeting report

JUSTICE & CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
15 March 2000
PROTECTED DISCLOSURES BILL

Documents handed out:
Protected Disclosures Bill (dated 14/3/2000)
Draft Resolution (included in the minutes)

Relevant Document:
Resolution

SUMMARY
The committee unanimously adopted the Protected Disclosures Bill after adding a few minor amendments to the latest draft. Thereafter it adopted the Resolution after making a few amendments.

MINUTES
The committee deliberated on the latest draft (dated 14/3/2000) which contained amendments suggested by the committee in the previous meetings.

Long Title
The committee accepted this.

Preamble
In the preamble, Mr P Delport (DP) felt that "crime and other irregular conduct" should be "criminal and other irregular conduct". Mr Johan De Lange, a departmental drafter, agreed with this. There were no objections. The chairperson Adv De Lange proposed that "effective" replace "efficient". There was no objection to this.

Definitions
"impropriety"
Imam Solomon (ANC) pointed out that the reference to "(a) to (f)" was wrong. It should be "(a) to (g)". The committee agreed.

"prescribed"
Ms S Camerer (NNP) pointed out the mistake with the reference made to section 11 when it should have referred to section 10.

The chairperson said that the same applied to the reference in the definition of "this act", to "section 11", where it should also be "section 10".

Objects and application of the Act
Mr Masutha wanted the words "limiting or" to be included before "discouraging" in 2(3)(b)(ii). Both Mr De Lange of the drafters and Ms Camerer had their reservations in view of possible misinterpretation. Mr Masutha backed down. The chairperson initially felt that the word "purport" should refer to 2(3)(b)(i) as well as 2(3)(b)(ii). He was however convinced by Mr De Lange, to leave the section as it stood since 2(3)(b)(ii) did not intend to be read " purports to have the effect of …." The section was thus unchanged.

Remedies
The only change was in section 4(1), where "…in order to protect him or her…" was changed to "…in order to protect himself or herself…"

General Protected Disclosure
In 9(1) after "Any disclosure" the words "other than a disclosure made in accordance with section 5,6,7or 8" were deleted on the advice of Ms F Chohan Khotha (ANC). The chairperson said that the possible incorrect interpretation resulting from the inclusion of these words could cause problems in that section 9 could be seen as excluded from the ambit of this section.

It was proposed, moved and shaken, that the committee adopt the Bill with the few additional amendments which they had just made. It was unanimously approved and will come before Parliament probably in the second week of April 2000, and would be down in the order paper for that week. The following draft resolution of the committee was also adopted.

DRAFT RESOLUTION

The Portfolio Committee wishes to report further as follows:

1. The Bill is derived from Part 5 (whistleblower protection) of the Open Democracy Bill [B67-98], which Part was omitted from that Bill to be dealt with as a separate Bill. (See the report of the AdHoc Joint Committee on the Open Democracy Bill, dated 24 January 2000.)

2. The Bill purports to protect employees from victimisation by employers and, for that purpose, is confined to the relationship between employer and employee in both public and private spheres. The Portfolio Committee considered the possibility of extending the ambit of the Bill beyond the purview of the employer/employee relationship. The Committee, amongst other, considered the following possibilities:

(a) an individual who makes a disclosure concerning the corrupt activities of an insurance salesperson and who, as a result thereof, is denied insurance coverage by that or another insurance company;
(b)a pensioner who, as a result of reporting on the involvement of an employee of an organ of state in criminal activities, experiences delays in receiving his or her pension; or
(c)a private contractor discloses information concerning corrupt activities in an organ of state or a private body and as result thereof an existing contract is breached or any expectation for future contracts is surrendered.

It was, however, noted that most foreign jurisdictions tend to limit legislation of this nature to the relationship between employer and employee. The Committee concluded that:
(a) any extension beyond the current ambit would require defining the different types victimisation to which persons who are not in an employer/employee relationship may be subjected as a result of making certain disclosures; and
(b) existing labour, contractual or other remedies may not be sufficient to provide appropriate redress for persons who, as a result of making certain disclosures, are subjected to victimisation.
The Portfolio Committee is not opposed to an extension of the current ambit of the Bill, but is, however, of the view that it would require comprehensive and comparative research into the possibility.

3. The Portfolio Committee noted that the British "Public Interest Disclosure Act, 1998" contains a provision (section 43C) in terms of which a worker can also make a protected disclosure relating to the conduct of a person other than his or her employer. The Committee considered the insertion of the underlined words into clause 6:
"6. (1) Any disclosure made in good faith-
(a)and substantially in accordance with any procedure prescribed, or authorised by the employee's employer for reporting or otherwise remedying the impropriety concerned;
(b)to the employer of the employee, where there is no procedure as contemplated in paragraph (a); or
(c)to a person other than the emplovee's employer. where the emplovee reasonably believes that the impropriety concerned relates solely or mainly to
(i) the conduct of that other person; or
(ii) any other matter for which that other person has legal responsibility is a protected disclosure.
However, the Committee concluded that the provision would extend the ambit of the Bill beyond the scope of the employer/employee relationship as discussed in paragraph 2 above.

4. Clause 63(1) of the Open Democracy Bill made provision for the exclusion of criminal or civil liability for making, what in terms of this Bill amounts to, a protected disclosure. The Portfolio Committee, after considering this matter, came to the conclusion that it is undesirable to include this provision in the present Bill for the following reasons:

the Bill purports to protect employees from victimisation by employers and is confined to the relationship ship between employer and employee;
extending the scope of protection of employees to matters in respect of which they would otherwise-
(i) be liable to criminal prosecution; or
(ii) have incurred civil liability to third parties,
may amount to a denial of the constitutional right to the adjudication of a justiciable dispute in a court of law or another independent forum; and
(b) the indemnifying of employees against prosecution for offences (who in certain cases may use the provisions of the Bill to conceal their own involvement in criminal activities) may frustrate the Legislature's intention in respect of certain statutory offences and may not be in the bests interests of the public.

The Portfolio Committee was not in a position to conduct an audit of the effect that such a provision may have on existing laws and is of the view that such an audit will be essential so as to prevent unintended consequences resulting from such a provision. The Portfolio Committee realises that the matters referred to in paragraphs (b) and (c) are arguable, and holds the opinion that these matters should be investigated more fully and, if necessary, the provisions of the Bill could then be reviewed.

5. The Portfolio Committee also considered the creation of a new cause of action for an employee who had been victimised by an employer in contravention of the Bill. Such cause of action could be aimed at the person who acted in contravention of the Bill, or at both the employer (vicarious liability) and such person, and could also introduce the concept of "punitive damages" law. The Committee considered the following as possible draft provisions for consideration in this regard:

Option 1
(a) Any employee who is subjected to any detriment in breach of section 3 is entitled to claim punitive damages in any court having jurisdiction.

(b)The punitive damages may be awarded against the employer, alternatively or as well as against any person in his or her personal capacity if such person's action caused the detriment.

(c)Nothing in this Act shall be construed as preventing the employee who is subjected to detriment in breach of section 3 to institute action for an order to set aside the action taken by the employer which constituted the detriment or an order directing the employer to remedy the detriment.

(d)Notwithstanding any other remedy prescribed in other legislation, the employee may, if an application is made in terms of paragraph (a) above, add an application for an order referred to in paragraph (c) above."

Option 2
"(1) Any employee who-

(a) has suffered a detriment;

(b) on account of, or partly on account of having made a protected disclosure; and

(c) who has suffered any loss or damage resulting from such detriment, may, in addition to any other relief at his or her disposal, bring a claim for appropriate compensation or any other appropriate relief against the person whose conduct resulted in such detriment."

However, the Portfolio Committee is of the opinion that the creation of new remedies in the labour field should be approached with caution. A thorough knowledge and understanding of the existing remedies and procedures in this field will be necessary so as to ensure that duplication does not occur and to prevent the development of a dual- system, which could create legal uncertainty and detrimentally affect the administration of sound labour practices. The Portfolio Committee is further of the opinion that the introduction of the concept of 'punitive damages" should likewise, be approached with caution.

6. The Portfolio Committee considered the desirability of creating offences in the Bill, in terms of which (a) an employer would be committing an offence by unlawfully subjecting an employee to an occupational detriment; and (b) an employee would be committing an offence by making a false disclosure, or by making a disclosure not knowing or believing it to be true. The Portfolio Committee holds the view that it may well be appropriate to create such offences. However, the Committee is aware that countries, which have similar legislation differ in this respect. The Committee is also mindful of the fact that such a provision may impact on the existing laws and practises regulating employer/employee relations. This matter needs some further research and consideration, also taking into account the Government's decision in 1995 to decriminalise labour legislation, before any criminal sanctions are created.

7. The Portfolio Committee is of the view that the South African Law Commission would be best suited to undertake research in the matters referred to above and, accordingly, requests the Minister for Justice and Constitutional Development to consider referring the above matters to the South African Law Commission for investigation.