Whistle-Blower Protection Draft Bill

Meeting report

JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
1 December 1999
DISCUSSION: WHISTLE-BLOWER DRAFT

Documents handed out:
Whistle-blower Draft (OPD 91)

SUMMARY
The discussion revolved around the newly drafted Whistle-blower Bill. The new draft is very similar to the UK model, but there are some questions around whether or not the Act should extend beyond the employer/employee relationship.

Concerns were raised by both government and opposition members over this Bill only offering protection to whistle-blowers within an employee / employer relationship. Adv de Lange said he would welcome any proposals on protection outside this relationship if members could show him what would be protected and what remedies might be offered to whistle-blowers. He felt that the concept of whistle-blowing was that it was done within an employment situation. Only a person within an employment situation will have access to the crime or corruption going on and only they have something to protect – their employment. Other issues raised included:
• Ensuring that the wording of section 4 will make it fully applicable to the private sphere.
• Whether there would be any viable and appropriate way to allow a person to make a protected disclosure if they committed a crime in doing so – section 4(4).
• Obliging bodies to have effective internal procedures through which people can whistle-blow – changes to section 5(1) will probably ensure this.
• Ensuring that section 6 on obtaining legal advice is not too broad and does not become a fourth way to gain protection.

The following committee meetings are confirmed: 2, 7 and 8 December 1999.

MINUTES
Mr Henk du Preez of the Department went go over the draft with the Committee

Mr du Preez said that the draft closely follows the UK model. He included the definitions of employee and employer in Clause 1. He tried to combine the public interest disclosure of the UK model with that provision from the existing Open Democracy Bill, which is found in Clause 4(f) of the Whistle-blower draft. Clause 4 of the Whistle-blower deals with qualified disclosure. It lays out the factors that a person would need to follow in order to qualify for protection under the Act. Part 3 was taken directly from the UK model, and it deals with the circumstances when a qualifying disclosure will be protected by this Act. Essentially, it lays out the three steps or avenues for making a disclosure which were debated in previous meetings on this subject. Clause 9 of the Whistle-blower is a mirror image of what was Clause 64 of the Open Democracy Bill. Subsection 2 of Clause 10 was taken from the UK model and it deals with exclusion of liability when a person makes a protected disclosure. Clause 11 covers when a person suffers detriment at work, which is the same as Clause 65 of the existing Open Democracy Bill. Clause 12 deals with remedies, but there is a part that he put into parenthesis that needs to be discussed. Specifically regarding Clause 14, he included both the Human Right Commission (SAHRC) and the Public Protector. He had concerns about the "an impropriety" language and how it related to Clause 4. He pointed out that Clause 4(1)(g) deals with horizontality and he was not sure how that affected this language. As a result, he added the same language to Clause 4(h).

The Chair asked if Clause 4(g) was the only clause relating to horizontality.

Mr du Preez said that horizontality is also covered in the definitions of employer and employee. For example the definition of employee includes "any person working for another person . . ." He told the Chair that he got the definition for employee from the Labor Relations Act and the definition of employer from the Occupational Health and Safety Act.

The Chair asked why he did not take the definition of employer from the Labor Act as well?

Mr du Preez sad he had looked at several pieces of legislation that defined both terms. He said that he would bring those in so the Committee could look at all of the options.

The Chair was worried that Clauses 2, 3, and 4 did not have any employer/employee language in them. He also wanted Mr du Preez to add a Preamble to the Bill, which would explain everything that they were trying to do in the Act. He admitted that the definitions of employer and employee were very important, but he said that they would come back and look at them.

Clause 2 - Application of the Act
The Chair asked where the definition was for protected disclosure.

Mr du Preez said that he could add it to the definition section.

The Chair asked him to add it because he felt that was the missing link - he wanted the legislation to be clear on the difference between protected and qualified disclosure as it is in the UK model. He then pointed out the language "which is made after the date on which this Act came into question, " and said that was the language dealing with retroactivity.

Mr du Preez pointed out that Clause 2(2) extended protection to a person who blew the whistle even before this legislation was passed. Even a person who blew the whistle years before could use the remedies provided for in this Act.

The Chair asked how that was going to work. How can Clause 2(1) and (2) work together, and how can they go back and protect a person who blew the whistle years ago? He felt that (2) was completely wrong.

Mr Mgidi (ANC) said with respect to Clause 2(2) how would you prove that a person was being victimized because of something they blew the whistle on three years ago?

Ms Chohan (ANC) felt that you really cannot give people rights that they did not have at the time that they blew the whistle. She warned not to take the retroactivity clause too far.

The Chair asked if the remedy in Clause 12 was the only one that was in the UK model. He said that there must be other remedies. He said that they needed to include protection against things such as losing your job and getting demoted. He went on to say that he did not think that they should have a retroactive clause at all. Further, he wanted to get the protected disclosure issue sorted out.

Ms Chohan (ANC) said that they should check and see what was done with protected disclosure in the UK model. She thought that protected disclosure was a part of the definition of qualified disclosure.

The Chair said that this Bill just seeks to protect workers and when they are victimized in the workplace. The protection would not be extended to companies. He said that they should stick with just the employer/employee relationship, because this is the way to ensure that they can apply the Bill on the horizontal level as well. They need to do something similar to what is in the UK model's Section 43(a).

Mr Smith said that you could have some retroactivity to cover the period in between now and when the Bill is promulgated. This way people that blow the whistle now will still be protected under this Act.

The Chair said that was a possibility, and it could be done by using the term "enacted" instead of the term "operation." However, the problem is determining what the consequences of doing that would be, because they would not have the proper procedures in place until the Bill was promulgated.

Mr Solomon (ANC) asked if they really wanted to keep this legislation limited just to employee/employer relationships. There are many other areas of mal-administration and corruption that would not be covered.

The Chair said that the problem with extending it past the employer/employee relationship is that they do not know what the consequences would be. You can only protect victimization or loss of a job by limiting the application to employer/employee relationships. The point is to create remedies that are enforceable

Ms Jana (ANC) asked about Clause 12. She said that there must be other remedies, because the ones listed are already remedies (e.g. civil action). Shouldn't there be a remedy of compensation? Maybe you could have a remedy for compensation and create some type of internal procedure for it so that they wouldn't have to rely on just the courts.

The Chair said that they would look at the remedy section, but really anything relating to compensation would have to be decided in court. The court would have to make a factual finding on such issues

Ms Botha (ANC) referred to a research report on retroactivity. The report said that the Bill could cover disclosure that happened before that Act, but the victimization had to be happening after the Act was passed. She also wanted to point out that Mr Solomon was right in questioning whether they should limit the legislation to just employer/employee relationships, because there are issues of welfare payouts where beneficiaries are being victimized and they would not be covered.

The Chair said that was a good point, but won't qualifying disclosure cover that point? He said that they have had problems with the way the courts have interpreted legislation before.

Ms Taljaard (DP) had two points. She wanted to know whether or not government procurement or tendering was adequately covered under the Administrative Justice Bill, and if it wasn't then it should be addressed here. Secondly, she said if the Bill was limited to employer/employee relationships, then there would be no protection if one firm blew the whistle on another firm. She felt that the legislation should be extended beyond just the employer/employee relationship.

The Chair said that he was not averse to extending the application of the Act, but how are they going to regulate it? He pointed out that they only have until 4 February to get all of this together. He suggested that perhaps they put it into the resolution.

Mr Smith (IFP) was also worried about the time restrictions, and said that the resolution sounded like a good solution

Ms Chohan (ANC) asked about other legislation that extended protection to whistle blowers.

The Chair agreed that was a vital point and asked Mr du Preez to look at other legislation including the Intelligence Act.

Ms Chohan (ANC) asked about a duty to disclose and said it might be a point that they could put in a memorandum. She wasn't sure if the duty to disclose say child abuse or domestic violence actually fitted in here.

The Chair asked to be reminded of what the previous discussions on duty to disclose were.

Ms Chohan (ANC) said that this legislation really deals with voluntary disclosure, but that there are some instances in the law where there is a duty to disclose certain information, and that this law needs to look at that.

The Chair said that maybe reference to that can be put under the section on qualified disclosure. Maybe say where there is a common law or statutory duty to disclose, then the person must disclose.

Ms Jana (ANC) said that was a good idea, but she wasn't sure how to make that work with this legislation.

The Chair admitted that was true. It doesn't really fit into the employee/employer relationship. He said that they will need to look at creating a duty in terms of that relationship and not as a blanket duty of disclosure.

Mr Smith (IFP) said that they needed to look at the Public Service Act to make sure that no harm would be done to its application

The Chair asked Mr du Preez to look at that as well

Ms Jana (ANC) said that there was a recent decision on duty to inform about a crime in relation to the media. It dealt with the public having to report a crime at the time the act was being commissioned. She said she was not sure that it would apply, but that it should be looked into.

The Chair said that they would look at that.

Mr Schmidt (DP) said that he had heard that the decision had finally gone in favor of the journalist.

The Chair said that they would look at the judgement. He said that there is definitely no duty now in common law.

Mr Smith (IFP) asked what if there was a duty to disclose in this legislation as well as another one. Which would apply?

The Chair said that he would have Mr du Preez look into it, but that it should be that you would be allowed to plea in the alternative - pick which one you want to use or try it under both.

Clause 3 - Objectives of the Act.
Mr Schmidt (DP) asked if person meant the same thing as employee in this clause

Ms Chohan (ANC) said that it could not mean the same thing, because if you blew the whistle and were then fired on the spot, you would be excluded from protection. If you want to use the term "employee" then you will need to change the definition to incorporate these people.

The Chair said that was a good point. People that are fired still need to be covered. It is also true, however, that the term "person" could also include juristic persons.

Mr Solomon (ANC) asked if it should not cover both natural and juristic persons?

Mr Smith (IFP) wanted clarity on what was meant by the term "employee." Does it exclude contract workers that are not actually employed as an individual?

The Chair said that was why he had asked Mr du Preez in the beginning where he got the definitions from. He said that they really needed to look at other legislation to see how they define employer and employee. He is happy that the one came from the Labor Relations Act. He said the point Mr Smith was making was vital. He also said that there was a Judicial Matters Bill that had been passed that also defined them, and he asked Mr du Preez to find that as well.

Mr Smith asked what maladministration really dealt with.

Clause 4 - Qualifying disclosure
This clause states the matters on which you are allowed to blow the whistle. He said thought that Clause 4(f) did not come out of the UK model and that it was taken out of the existing Open Democracy Bill. He said that it looked like (f) was an extension of (b). Clause 4(1)(a) covers the past, present, and future in relation to criminal acts. Corruption would be included here as well as any common law or statutory criminal offences.

Mr Masutha (ANC) asked what "tends to show" actually means in 4(1). He felt that this language was too weak to enable someone to invoke protection.

The Chair said that it was weaker that if prima facie was used.

Mr Smith (IFP) asked if (a) meant criminal offenses in the work context or in any context?

The Chair said that the way it was written here it would apply to any context, but they would have to look at that.

Ms Chohan (ANC) asked if they needed a broad definition of criminal offenses? She also commented on the "tends to show" language, and she said that it came from the UK model. It means that a person may not be able to give concrete or hard evidence at the time he wants to blow the whistle. Her third point was with regards to 4(1)(d). She was not sure that when they talk of individual health and safety if they wanted to limit it to "an individual," because there could be groups or the public in general that need protection.

The Chair said that "an individual" would cover groups.

Ms Chohan was worried that the language would not be interpreted that way.

The Chair said that they would look at the "tends to" language because Mr Masutha was correct in saying that the language determines the test. Tends to is not a well known word used in South Africa, which could be a problem when the courts go to interpret it. He also said that the term "any offenses" in 4(1)(a) may be too broad. He felt that the offense had to be a qualifying offence in terms of the work place.

Mr Schmidt (DP) said that he agreed with Mr Masutha on the "tends to" language. He pointed out that the language qualifies the disclosure not the individual making the disclosure, and so if they choose another term instead of "tends to", then they need to keep that in mind

Ms Jana (ANC) asked how the concepts of good faith and reasonable belief relate in Clause 4.

The Chair said that you need to read subsection (3) and (4) together, because one uses reasonable belief and the other uses good faith. He said that she was right in thinking that they do need to figure out how they relate.

Ms Jana (ANC) said that they are going to have to determine what a reasonable belief is, and the good faith portion is going to have to fit in somewhere.

The Chair said that reasonable belief was a weak test. It was a subjective test that has some objective factors attached to it as well, because of the "tends to show" language. His worry was that the definition of qualifying disclosure was different in subsection (1) than in subsection (3). Subsection (1) uses "reasonable belief" as the test for qualifying disclosure whereas subsection (3) uses good faith.

Mr Solomon (ANC) shared the same concerns as Mr Masutha. Also he wanted to point out that Clause 4 only deals with qualifying disclosure and not protected disclosure, which is found in Clause 5

The Chair said that there were two issues. First the "tends to show" creates a low test. Secondly, that language is unfamiliar. If it is hard to determine what the language means, then they are not going to know how the court is going to interpret it. It seems that the test is intended to be low, which is why they also need to look at subsection (f) carefully. The UK model did use the "tends to show" language, but only in relation to subsection (a) through (g). The UK model does not have a Clause (f).

Mr Jeffery (ANC) said that they needed to look at Clause 7 as well, because it uses both the reasonable belief and good faith. "Tends to" is a low test, whereas prima facie would be higher. If the test is that you have a reasonable belief that something might be wrong, then that is a low test.

The Chair agreed that prima facie was a higher test. He pointed out that Clause 7 is only referring to the second stage of the disclosure process, which is why he was worried about 4(3). Subsection (3) only applies to a qualifying disclosure and not everything. Why have the test here when you have it in Clause 5 and 7?

Mr Smith (IFP) asked about 4(1). He did not understand why a person needed to make a disclosure in good faith. He felt that having reasonable grounds for disclosure was enough. Whether you disclose for the purposes of nailing your boss or not is really irrelevant. The test is whether in the person's mind they believed that the disclosure was reasonable. He also asked about what civil service and code of conduct meant in terms of maladministration

The Chair said that they would have to look at that, but he thought his concern was covered by 4(1)(b)

Mr Smith (IFP) asked what 4(1)(b) added to (a)

The Chair said that the action may not constitute a crime. You may have spent the money correctly, but you did not follow the proper procedure.

Ms Botha (ANC) said that the words "tends to" are not uncommon, but that they are not a part of commonly used legal terms. She liked the idea of using it, because they are trying to move away from using legal terms. She also felt that the test should be low.

The Chair said the problem with the fact that "tends to" is not commonly used in the legal field is that the courts are the ones that have to interpret it. This clause is not going to be read by ordinary people.

Ms Botha (ANC) pointed out that there are other pieces of legislation that have used the language "tends to."

Ms Chohan (ANC) brought up the issue of good faith and reasonable belief. She agreed that you need to have a low test and that reasonable belief was appropriate, because you need to take into account the circumstances surrounding the disclosure. She said that Mr Smith had make a good argument in terms of good faith, but you still want to be sure that the person that discloses for purely vexatious reasons does not fall through the cracks unpunished.

The Chair said that they were not going to remove good faith test

Ms Chohan (ANC) said that they could just use good faith in a different place than it is in the Bill currently.

The Chair agreed that they should put it somewhere else. The qualifying disclosure stage is a stage were you do not want a high test. When you get to the different stages of disclosure then you can use good faith.

Ms Jana (ANC) said that the point she had made earlier on good faith and reasonable belief was totally wrong. She said it was important to keep the good faith requirement even at the qualifying disclosure stage. She felt that you needed to have good faith AND reasonable belief with a low test, because you need to protect both the employer and the employee.

The Chair said that good faith should come in at a later stage. The UK model has it in a later stage.

Ms Jana (ANC) said that essentially you have the good faith test in some circumstances but not in all?

The Chair said that this draft would need to be changed to look more like the UK draft.

Ms Taljaard (DP) asked if 4(1)(a), (b) and (f) were going to be collapsed into just (a) and (b). She also pointed out that it is known that there is little confidence in the anti-corruption statute, and she wanted to know how far this legislation was going to go in supplementing that legislation.

The Chair said that they had not decided whether or not to collapse (f) into (a) and (b), but that they would be looking at that as an option. Further, he said that he was aware of the problems with the anti-corruption legislation, but that this one could not be used as a way of fixing the problems in that one.

Mr Smith (IFP) asked whether the law referenced in 4(2) was South African law or the law of the other country involved.

The Chair was not sure, and he said that would be were they started the discussion after lunch.

Afternoon session
Section 4 - Qualifying Disclosure
Mr Ditshetelo (UCDP) referred to issues discussed in the morning, namely the drafting of a Bill that only relates to whistle-blowing within the employer / employee relationship. He felt that this made the Bill narrow and limited from the outset. As the inventors of the Bill the committee should try to make it as inclusive as possible.

Adv de Lange explained that this Bill is not being drafted to get people to come forward with information but is drafted to protect those who have come forward. It is a Bill about protecting and protection is only needed within the employment relationship. What is there to protect and what remedies can we offer to people outside the employment situation? If you are not an employee and have information on crime or corruption then you can report it without having a job to protect or victimization to avoid and should you need protection you are entitled to it under the witness protection scheme.

Adv de Lange felt that it was inconsistent that this section referred to both qualifying disclosure and to impropriety.

Ms Chohan-Khota (ANC) felt that both impropriety and qualifying disclosure were needed because of the context of the sub-sections they were part of. It would not be easy to just use one or the other.

Adv de Lange accepted that this was currently true but that it would be possible to write each sub-clause to fit one or the other. Plus the expansion of section 5(1) on qualifying disclosures becoming protected disclosures would mean many of the sub-clause in section 4 would not be needed. He went on to explain that the British Bill, on which this draft is based, uses the term qualifying disclosure whilst the section on whistle blowers in the ODB uses impropriety. As bits from both Bills have been mashed together, both terms have been used. The committee should decide which sub-clause it wants and than the next draft will set these out in a standard terminology.

Adv Swart (ACDP) pointed out that in the British model that the when referring to the actually act of impropriety the synonym 'failure' is used.

Both Adv de Lange and Ms Chohan-Khota raised concerns over the extent section 4 would work to regulate the private sphere. Adv de Lange felt that committing ‘serious maladministration’ was difficult to determine in the private sphere where there are less legal requirements and demands of legislation placed on bodies. He also pointed out that as price-fixing is not always illegal it would not always be covered under this Bill. The committee and the Department must ensure that that clauses can be adapted to fit the private sphere. Ms Chohan-Khota pointed out that some requirements may only be legal obligations in the private sphere but by not doing them a body may not actually commit a crime, hopefully 4(1)(b) will cover this.

Mr Smith wished to know why 4(2) was necessary [that a qualified disclosure can be one of the improprieties set out in 4(1) that is being deliberately concealed]. He felt is something could become a qualified disclosure under 4(1) then 4(2) made no sense.

Ms Chohan-Khota (ANC) felt that this clause was needed in two ways. Firstly if an employee makes a disclosure of a potential crime whilst another employee sees information on this crime being destroyed. 4(2) allows the destruction to be a crime as well. Secondly 4(2) would cover a person seeing the destruction of records before they were aware of a crime.

Mr Smith (IFP) moved on to the fact that all disclosures should be done in 'good faith' and whether this might have unintended consequences. If you were motivated by a desire to nail a person then it is possible you would fall outside the Act. The good faith criteria would also mean that you would have a duty to report things straight away instead of delaying reporting until you felt that your disclosure would really nail a person. He felt a clear definition of good faith was needed.

Adv Schmidt referred to section 4(2) which helps to govern improprieties that occur outside South Africa. He thought that the wording should be checked against the wording of other similar Bills world wide and also checked so that it covers people trading across several countries at once.

Mr Smith (IFP) also pointed to section 4(2) and exactly what and who it would protect. An impropriety can occur outside South Africa and the law applying to it need not that of South Africa. However Mr Smith wished to know whether this protected the disclosure of an impropriety that occurred another country but was not actually an impropriety there.

Adv de Lange confirmed that in this case protection would not be given but the issue was not as easy as this. If you think something is a crime then you get protection. It is quite likely that if you saw something that is a crime in South Africa committed elsewhere you will assume it is also illegal and this alone would gain you protection; the test for protection is very low.

Mr Jeffery (ANC) wondered why section 4(4) is needed. [A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.]

Adv de Lange said that most countries have similar clauses as all have some information that should not be disclosed.

Mr Jeffery (ANC) wondered whether you could disclose that a protected defence plan as corrupt is you disclosed no information on the plan itself and if not he thought there should be some means of doing this without breaking the law.

Adv de Lange accepted that such corruption would need to be exposed but said the Bill could not legislate for allowing laws to be broken. Even the police must follow the letter of the law when they are setting traps if they are to secure a valid arrest and conviction.

Ms Chohan-Khota (ANC) said that making such disclosures internally would be protected, problems would only arise if disclosures were made under sections 6, 7 or 8.

Mr Smith (IFP) spoke specifically on section 6 which says that disclosures are protected if made whilst obtaining legal advice. This alone would not protect you if you broke a law by making a disclosure but you might be protected by attorney-client privilege. However technically you would still commit an offence.

Committee members agreed that if you committed a crime in disclosing information to your attorney you would not be protected by privilege.

Ms Jana (ANC) thought that Acts like the Official Secrets Act must be scrutinized to see if there are any let outs by which information might be disclosed without a crime being broken.

Mr Du Preez, the drafter, agreed to look at this.

Adv de Lange thought that one possible way out would be for people to disclose information on the promise they would not be punished for the crime they committed in doing so.

Mr Mabeta (UDM) said that although a person would not commit a crime if they disclosed information internally, it is unlikely people would want to follow the internal process. Wherever excessive internal abuses occur people will have no desire to turn in. If this Bill is to work then all bodies must be obliged to set up proper and effective internal mechanisms to ensure people use them.

Adv de Lange agreed that something like this must be included in the Bill itself and not merely in regulations. [It was later decided that with the proposed changes to section 5 that such a section would not be needed.]

Ms Taljaard (DP) wondered how the section 4(4) linked to ODB Information Officers and what would happen if they disclosed information that was covered by an exemption.

Adv de Lange said that this Act must be correlated with the ODB at some stage, especially as the ODB would probably make some information disclosure a crime, for example the disclosure of information that is then wrongfully used in civil and criminal discovery. Hopefully most disclosure would be allowed under the ODB public interest override but this should be checked. For the moment Adv de Lange felt that 4(1)(a) would be okay but that the rest of section 4 may be problematic.

Mr Smith (IFP) felt that information exempted under the ODB would not be an issue as it is only exempt to a third party. Only because the information has been ‘requested’ does it become exempt so this does not mean records contain information that it is a crime for employees to disclose.

Ms Chohan-Khota (ANC) also thought they would be no problem as the public interest override would correlate with section 4(1).

In concluding the discussions Section 4 Adv de Lange felt the following points had been reached:
• The Bill will have to be brought in sync with the Open Democracy Bill at some stage.
• Basically much of Section 4 will end up reflecting the British Act.
• Sub-sections (a)-(e) and (h) are the preferred sub-sections of the committee and will be most easily adapted to deal with horizontality.
• The issue of horizontality must be fully addressed.
• 4(3) and (4) will be collapsed together to form one clause.
• 4(4) remains a problematic issue that must be dealt with.
• Tests such as 'endanger' or 'damage' are perhaps too low whilst 'miscarriage of justice' is enormously wide.
• The issue of sexual harassment is to be flagged. It will probably be covered within categories such as 'miscarriage of justice' but a specific clause that deals with it, when it is and is not a criminal offence, is to be looked in to by Mr Du Preez.

Part 3 Circumstances in which a qualifying disclosure is a protected disclosure
Section 5 - Disclosure to employer or other responsible person
Adv de Lange explained that section 5 indicated the first step to be taken in making a disclosure. That this was to disclose to your employer and allow for internal review reflected the 'good faith' aspect of the Bill. However Mr Du Preez's draft differed from the British Act by not explicitly mentioning good faith and by removing the first sub-clause in their equivalent section. This section will not be needed in this Bill if all bodies are obliged to have internal review mechanisms. Adv de Lange felt that it might be better if this Bill more closely adhered to the British Act and if the draft section 5(1)(a) comes at the very bottom of the clause. This would avoid the need to legislate for all bodies to have internal procedures.

A discussion occurred on exactly who is the employer of state officials, civil servants, public servants, MPs and Ministers and so on. For example MPs are elected but may well be deemed appointed in the strictest sense of the Constitution and employment legislation. This is to be investigated.

Section 6 - Confidential disclosure to legal advisor
Mr Jeffery (ANC) felt the intention of this clause was not to give another means of disclosure but to allow for a person to gain legal advice before a disclosure is made. He felt it should probably be narrowed as legal advice might be obtained at any sort of legal office and no attorney-client privilege would exist to protect you.

Ms Chohan-Khota agreed the clause was too broad in this sense but also too broad as it does not specify you are obtaining legal advice about making a disclosure, merely that you make a disclosure whilst seeking legal advice.

Adv de Lange wondered how this clause fitted with section 7, as it is this section that sets out when a qualifying disclosure becomes a protected disclosure. Further as both a qualified and protected disclosure is made according to this section it is almost like a fourth option a person can follow if they intend to whistle-blow. Adv de Lange remained unsure if this was the intention.

As several members felt that this would be inappropriate it was felt the British wording may be closely used as it does not lead to the equivalent section becoming a fourth option.