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SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
19 June 2000
PROTECTED DISCLOSURE BILL: DELIBERATIONS AND VOTING
Documents handed out:
Proposed amendments to Clause 4 (attached)
The proposed amendment to the Bill was considered which makes the following changes: Concurrent jurisdiction falls away. It merges reference to the Labour Court in Clause 4(1)(a). A consequential cross-reference is made in Clause 10.
After the Democratic Party voiced some concerns, the amendment was approved by all parties. The Bill was voted on clause by clause and there was no opposition. The Bill will be debated in the National Council of Provinces on 20 June.
The proposed amendments to Clause 4 make the following changes: Concurrent jurisdiction falls away. It merges reference to the Labour Court in Clause 4(1)(a). A consequential cross-reference is made in Clause 10.
Adv De Lange, Chair of the Portfolio Committee on Justice, was uncertain over the legal consequences of concurrent jurisdiction and did not want to create the impression that the Bill was creating concurrent jurisdiction.
The Department of Labour feels that the amendment is in order, although they were reluctant to put this in writing.
Mr Lever (DP North-West) asked what harm there would be in using the formulation in Clause 4(1)(a) and (b). Would it not be less ambiguous?
Mr De Lange, Director of Parliamentary Legislation: Department of Justice, said he was satisfied with the amendment as it is although he does feel it is a bit vague to refer to 'any Court'.
Mr Lever asked whether they should not be defining which Courts have jurisdiction.
Mr De Lange replied that the High Court would always have jurisdiction and the Magistrate Court could have jurisdiction if it falls within its monetary limit.
Mr Lever thought it vague to say you can "approach any Court having jurisdiction'. He felt that you should define the process and specify either the High Court or the Labour Court as having jurisdiction because as it is the courts are not getting too much guidance.
Mr De Lange suggested that you could phrase it as 'any High Court having jurisdiction'.
Mr Lever said he felt more comfortable with this.
An ANC member asked whether jurisdiction is determined by geographical or monetary factors because in his mind questions of accessibility to the High Court are of concern.
Mr De Lange thought that the way the Bill is framed, the Magistrate Court could have jurisdiction if damages awarded do not exceed the monetary limit of the Magistrate Court. He said that the Department's view has always been that that the Magistrate's Court would not in fact have jurisdiction because its jurisdiction is so clearly set out in the Magistrate Court Rules; jurisdiction in respect of specific matters and monetary amounts. Furthermore some might argue that the Labour Court is more accessible that the High Court. The main aim of the amendment is that people could approach the CCMA (Commission for Conciliation, Mediation and Arbitration) which is in itself a low cost option and then eventually the Labour Court. He felt that people would prefer such specialist adjudication, which also happens to be cheaper.
The Chair commented that the initial Bill had been passed in the format of the latest amendment. Addressing Mr Lever, he asked what the Democratic Party's view was on that amendment.
Mr Lever could not recall his party's position. However, he said it seemed unlikely to him that the Magistrate Court would ever have jurisdiction and this would only cause confusion. For instance, the Magistrate's Court would not be competent to transfer a person where this is required.
Mr De Lange responded that the Bill in its current form would still leave the door open to amend the Magistrate Court Rules.
Mr Lever referred to Clause 10(1)(b) and was concerned that the Minister would be given the power to make regulations, which he could use to establish a process for dispute resolution.
The Chair, Mr Mahlangu, pointed out that these regulations would have to be tabled by Parliament in terms of Clause 10(3). Mr De Lange added that what is important is that the employee is given the choice and regulations cannot limit his choice. Regulations would only be aimed at establishing other cheaper options.
Mr Lever said that the de facto position is that the High Court and the Labour Court would have jurisdiction. Although he was concerned over the unrestricted powers conferred by Clause 10(1)(b) there was still the safeguard in Clause 10(3).
Generally, there was consensus that all parties were in favour of the amendment. A formal vote was taken. The Democratic Party, ACDP, New National Party and the ANC voted in favour of the amendment.
The Chair, Mr Mahlangu, read the Bill clause by clause. All parties indicated they were in favour of the Bill.
The Bill is tabled before the NCOP plenary on 20 June. The ACDP felt they wanted a debate on it to allow different views to be heard. Because each party is entitled to a declarational vote due to it being a Section 75 Bill there will be a short debate. A formal motion of desirability will only be signed and submitted to the NCOP later.
The meeting was adjourned.
1. On page 6, from line 47, to omit subsection (1) and to substitute:
(1) Any employee who has been subjected, is subject or may be subjected, to an occupational detriment in breach of section 3, may-
(a) approach any court having jurisdiction, including the Labour Court established by section 151 of the Labour Relations Act, 1995 (Act No. 66 of 1995), for appropriate relief; or
(b) pursue any other process allowed or prescribed by any law.
(2) For the purposes of the Labour Relations Act, 1995, including the consideration of any matter emanating from this Act by the Labour Court-
(a) any dismissal in breach of section 3 is deemed to be an automatically unfair dismissal as contemplated in section 187 of that Act, and the dispute about such a dismissal must follow the procedure set out in Chapter VIII of that Act; and
(b) any other occupational detriment in breach of section 3 is deemed to be an unfair labour practice as contemplated in Part B of Schedule 7 to that Act, and the dispute about such an unfair labour practice must follow the procedure set out in that Part: Provided that if the matter fails to be resolved through conciliation, it may be referred to the Labour Court for adjudication.
1. On page 12, in line 10, to omit "subsection (1)" and to substitute "paragraph (a)".
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