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JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
29 OCTOBER 1999
REVIEW OF SUBMISSIONS
Open Democracy Bill [B67-98]
Expanded Summary of Submissions
The Committee discussed three principles regarding the Whistle-blower section of the Bill. They discussed whether or not the section on whistle-blowers should apply to both the public and private spheres. Also they discussed whether or not the new draft of this section should be modeled after the United Kingdom three-step approach. Finally, they discussed whether or not to keep a provision on criminal sanctions. In the end, the Committee was in general agreement that the draft should include both the public and private spheres, it should be modeled after the UK statute, and that there should be some type of limited provision invoking criminal sanctions in certain circumstances.
The submissions relating to Clauses 67 to 71 were reviewed. There was an extensive discussion as to the various options with regard to the forum to be used when an application against the refusal of an urgent appeal application is made. The proposal in the Bill of the Supreme Court is favoured by no one in the committee.
Part Five: the Whistle-blower provision
The Chair asked the committee to comment on three general principles regarding the Whistle-blower provision in Part Five of the ODB. The first discussion would be on whether or not this provision should apply to both the public and private spheres. Thereafter the discussion would turn to whether or not they should model their draft after the United Kingdom three-step approach. Finally, he wanted the Committee to discuss criminal sanctions. He said if they broadly agree on a subject, then they can move onto the next one. He was not looking for any firm decisions to be made, but rather a kind of general agreement on what should be included in the new draft of this provision.
Mr Durr (ACDP) commented that the term "whistle-blower" had a negative connotation and was quite demeaning. He suggested that they use the phrase "public information disclosure" instead.
The Chair agreed with what he said, and said that the UK called their Act the Public Disclosure Act. He then asked how everyone felt about the private sector application.
Mr Smith (IFP) said that the problem with including the private sphere is that the scope of the Act might be different. The internal procedures in the private sphere are different than those of the public sphere, and this could impact on the scope of the Act
The Chair said that the aim should be to protect shareholders. By protecting the whistle-blower and ensuring that even they are not victimized, you are making the investment into the organization more investment friendly. As a shareholder you want to know if people are squandering money, and people within the company should feel secure in revealing such information of mal-administration.
Mr Smith (IFP) said that it is important to define maladministration. It could be a mess otherwise. You need to identify specific acts of conduct that will constitute maladministration and corruption. You need to remember that there are separate rules of procedure in the private sphere.
The Chair admitted that there was a good argument in what Mr Smith was saying, but that they really needed to look at what the Act does. If you are a whistle-blower the law will determine whether the acts reported by the whistle-blower constituted maladministration or whatever. It is the courts job to define those areas.
Mr Swart (ACDP) wanted to say that he thought this provision should apply to the private sphere.
Ms Chohan-Kota (ANC) pointed out that other countries use a general "catch-all" type of definition of maladministration. She gave an example of one, and pointed out that it may be something that South Africa would want to adopt also. There really is not a need for a broad definition.
The Chair agreed that they should look at what other countries have used, and perhaps keep the definition so that it includes the broad miscarriage of justice.
Mr Durr (ACDP) also agreed that the provision should apply to both the public and private spheres. This needs to happen because typically it is the private sphere that is the initiator of the action which affects the public. It happens often where both spheres are involved. He asked if they should not try and trump what acts companies already have in place so as not to interrupt the flow within the companies.
The Chair said that this act does not do that right now, but that he would flag that point.
Mr Solomon (ANC) said, in reference to Mr Smith's earlier concern, that mal-administration was a good thing to look at in terms of shareholders.
The Chair said that not having a clear definition of maladministration would have a negative affect, because you could start to have too much whistle-blowing. From this, a body of law could develop around whistle-blowers being victimized, because you do not necessarily want to protect the person who "yells fifteen times about one piece of paper". There needs to be a balance between maladministration and corruption.
Mr Smith (IFP) said that it is more difficult to determine maladministration within the private sector, because in the public sector the rules are more clear and universal.
The Chair said that this is not really true, because the private sector also has a general framework from which they operate under.
Ms Chohan (ANC) asked how broad a coverage do you want to extend to the private sector? The question that they need to ask is whether they want to be flexible here and in so doing have a general "catch-all" type of definition. Whether the Act should be written in the interest of the shareholder or management is really an issue for larger debate
The Chair agreed that the private sector must be covered in the Bill. They need a draft as to what needs to be in. Also they need to decide what they meant by "qualifying disclosure."
Ms Camerer (NNP) raised the point that the Minister of Intelligence had addressed, which was that the Inspector General appointment had been a good idea, but that the appointment was never made. Should this Committee recommend that the appointment be done now?
Mr Landers (ANC) informed Ms Camerer that the appointment of the Inspector General was made and that served for 6 months so there is a procedure in place. However, she was correct in that there is no one in that position now. They have just passed two new laws to deal with the issue.
The Chair asked Mr du Preez to copy the whistle-blower clause from the recently passed Intelligence Act.
Mr Durr (ACDP) asked that the Committee have the humility to put South Africa in line with what other countries have done with regards to this issue instead of going beyond them. He asked that the Committee not be so ambitious as to go beyond what others have done in this area.
Dr Delport (DP) said that he was happy with the public sector ideas, but they needed to be careful with the private sphere so as to not to bring in protected actions within the definition of maladministration. One needs to confine the definition to duties, criminal action, or corruption. Maladministration in the private sector is a minefield.
The Chair said that everyone needed to keep in mind that the Bill only applies in one sense. You have complained about something, and then as a result you were victimized or fired. This is always a factual issue, and the definition needs to be limited. He agreed that the definition of maladministration needed to be narrowly defined, but that they do not need to worry about how it will be in practice. People will be deterred enough when they have to spend money to go to court for whistle-blowing.
Mr Solomon (ANC) wanted to say that the Committee should consider Dr Delport's comment regarding this provision interfering with the way that private companies run their businesses.
The Chair wanted to stop discussion on this point, since there seems to be general agreement that the private sector should be included in the whistle-blower section. Since they agree in principle that the private sector should be included, then further discussion can be put on hold until they get a copy of the new draft. He then moved the discussion onto the issue of whether or not the Committee should draft the new whistle-blower section after the UK three-step model, which was proposed by Lala Camerer. Again, the three steps would be 1) the matter is reported internally; 2) the matter is reported to the designated authority (e.g. Inspector General) and; 3) the matter is reported to a body outside of the department (e.g. the media or the courts). The chair said that these steps were not in a form of hierarchy, but rather each step has its own test to meet before you can be protected for reporting the matter on that level. The test is the highest if you choose to report to someone outside of the department, which is Step 3. He asked the Committee whether or not they agreed with this approach.
Mr Smith (IFP) asked for clarity on the reasoning behind the three tier stage. Does it mean that you want to keep the matter out of the public eye until step 3? How does the English model link with the Freedom of Information Act which strives to make information accessible to the public eye early on?
The Chair said that you are not confined to the order of the steps. What is important to understand is that in order for a whistle-blower to be protected under the Act they have to meet certain tests. Each of the three steps has its own test. You take a risk of not being protected if you go straight to step 3 without making sure that you meet the test. Again, you are not precluded from going straight to step 3 though.
Ms Camerer (NNP) said that the point of the Bill is to protect the whistle-blower and not the information itself.
Mr Smith (IFP) said that is true that if someone requests the information that the whistle-blower is divulging and that information does not fall under one of the exemptions in the ODB, then that information will be released.
The Chair said that a procedure needed to be drafted and complied with in order for the whistle-blower to be protected and to know when they will actually be afforded protection. Mr Smith was correct when he said earlier that if the information that the whistle-blower divulges does not fall under one of the exemptions, then it may be disclosed to the public upon request.
Mr Smith (IFP) said that they still needed to keep in mind the public interest override.
The Chair said that was a good point and that he would flag the issue.
Mr Smith (IFP) wanted to be clear that currently there was no positive duty to be a whistle-blower - it is voluntary. Is there anywhere internationally where a positive duty is invoked on certain people within certain levels of a company or department?
The Chair asked Mr du Preez to check into this issue.
Ms Smuts (DP) said that the first step of the UK model which encourages people to go and report the matter internally was a good one, because it would be a lot to expect someone to report to the media right away. She is not sure, however, about the mechanics of the three step model: would not speaking to the designated officer bear a stigma as everyone would know that if you were seen talking to that person that you were blowing the whistle on someone.
The Chair said that is why they favour the UK and Wales approach, because both models create a designated body whose job it is to fight for you and make sure that you are protected. You want a system where a higher official internally is there to protect the whistle-blower, and if they do not that the whistle-blower can go to this designated body or the media. It will be important to regulate the first step strictly to ensure that the job is being done.
Ms Chohan-Kota (ANC) said that the UK test to get protection under the third step is really high. Should the public interest override apply here?
The Chair agreed that if the override applies everywhere, then it may jeopardize this section of the Bill.
Ms Jana (ANC) wanted to know if the Staggie decision from two weeks ago on the positive duty to report crime would impact on this legislation.
The Chair said that at common law there is no positive duty to report a crime.
Ms Jana (ANC) then asked what would happen if the whistle-blower did not go through the internal procedure, but they act with reasonableness in going to one of the other steps.
The Chair said again that you cannot look at the three steps as being water tight. There are tests at each one of the steps. If you pass the test at any step in whatever order, then you will be afforded protection.
Mr Durr (ACDP) also pointed out that the Bill needed to keep in mind that some whistle-blowers would be in fear for their safety and/or their lives
The Chair said that the Act does provide for that, but he said that if he was a whistle-blower himself that he would be very sure that he passed the test before to ensure that he was protected once he reported the information
Mr Smith (IFP) asked about being anonymous - is there a way for whistle-blowers to disclose the information without revealing their identity?
The Chair said that they would look into what other countries have done in that respect. He will give Mr Smith a document to look at to see if that point is reflected in it.
Ms Jana (ANC) stressed that guidelines are important, and she proposed that those guidelines be scrutinized by the Committee before they are implemented.
The Chair said that they can ask that the regulation be tabled in but NOT approved by Parliament. If they asked to approve them, then the regulations could take forever to be implemented. He also wanted to point out that that was the reason why he had suggested splitting up the ODB into three separate bills. As three separate bills, the chance that regulations will be drafted and implemented in a shorter amount of time is much more probable.
Mr Masutha (ANC) felt that the current ODB did not provide for mechanisms for protection, but he admitted that he had not looked at the UK model. The re-draft must take protection mechanisms into account. Also, how will the regulations relate to the existing labor law relations?
The Chair said that the usual grievance procedures would apply, and that there was no impact on labour law.
Mr Masutha (ANC) questioned if there really was an impact on witness protection for example.
The Chair said that there would be no effect on the witness protection programme or anything like that. You could use both options if you chose - using one does not preclude you from using another.
Mr Durr (ACDP) wanted to know if 85(b) (criminal sanctions) eroded everything that they were trying to do in section 63.
The Chair said that they would flag this issue. It will be the last point that they would discuss.
Mr Landers (ANC) wanted to verbalize his support of the three step model, and reminded everyone that they were not going to produce a perfect document no matter how hard they tried.
The Chair then moved the discussion to focus on whether or not they should have criminal sanctions. He said that he did not want to create criminal sanctions that would hinder a whistle-blower from coming forward with information, but he did want to prevent people from doing harm to others or to a company. The submissions provided an easy solution which was that you could just file a civil suit against the whistle-blower for defamation or something similar. The problem with this option is that civil cases can take two or three years to complete. Another suggestion was to limit the criminal sanction to people who have been severely malicious, and where a civil suit would not be effective because the whistle-blower has no money and they were planning on leaving that job anyway. The Chair was in favor of carefully drafting a clause dealing with this narrow area. Perhaps before you go to court you have to get a certified certificate from high up in the Public Authority.
Mr Durr (ACDP) said that this should be the "What can I do about it?" Bill.
This Bill is saying how you can do something about what is going on in your organization. He did support the Public Prosecutor idea. You have to look at the Bill from the perspective of the public and their participation in government.
The Chair agreed that was an excellent way of looking at the Bill. The point is to avoid creating obstacles, but at the same time making sure that people who seek the protection are not doing it so as to divert the blame from themselves. We need a system of checks and balances. The solution lies in having a narrowly defined way of being subjected to a criminal sanction.
Ms Smuts (DP) agreed with 85(b) and felt that it was not so bad. She felt that criminal sanctions were needed, because human judgement is not always so good. Keep it narrow and implement the certification idea.
Mr Smith (IFP) asked if this was not already covered in other areas like defamation.
The Chair asked Ms van Schoor to check to see what other areas of existing law this would be covered in. Its drafting also needed to be looked at. The clause in 85 now is intent based rather than negligence. The Committee must be careful not to undermine the purpose of the Bill. It will be difficult to insulate whistle-blowers with suspicions.
Mr Masutha (ANC) said that they should be protecting whistle-blower with suspicions. How will this Bill affect the Child Care Act and domestic violence disclosure policies?
The Chair said that these areas would not be affected. There was confusion as to whether or not this Bill applies to those areas or just to the employer-employee relationship. It seemed that everyone felt that the Bill was limited to that relationship. The Bill is not creating a new crime by developing a criminal sanction, but rather is offering the company or department protection in the event that the whistle-blower acted with malice or with no foundation.
Ms Jana (ANC) said that this Bill applies only to specific crimes and not all crimes so the Child Care Act would not be affected. She said what would be an issue is if the whistle-blower provision in this Bill was in conflict with the whistle-blower provision in another Bill.
The Chair agreed with her point, and said that he was most worried about the Environmental and Intelligence legislation. He said that a comparison of all of them needs to be done so as to avoid any conflicts. The Chair then closed this issue and let the committee talk about retroactivity.
Ms Smuts (DP) asked whether the protection that would be afforded to whistle-blowers from this Bill would apply retroactively to people who blew the whistle in the past. One submission suggested that the Bill apply back to 1994.
The Chair said that could be a problem constitutionally, because how do you hold someone accountable for something that was not against the law when they did it?
Mr Smith (IFP) pointed out that it would be difficult to determine after all those years whether or not the victimization at work was really caused by the whistle-blowing.
The Chair said that it also raises the issue that if the legislation is neutral on the issue that people will come forward wanting protection from something they blew the whistle on way back.
Mr Solomon (ANC) did not think it was a bad idea to take it back to 1994.
The Chair wanted everyone to think practically. You are thinking about the whole of South Africa. Applying this Bill retroactively could cause past civil suits to reopen and such things.
Mr Durr (ACDP) asked if they should have rewards for people who blow the whistle.
The Chair said that they would look into it, but the problem with it would be that it undermines the idea that people must take control and responsibility over work relationships and situations.
The Chair then summarized the meeting. The committee agreed on several principles - not to say that the Committee made any firm decisions on these principles. They agreed generally that the document may have to be separated into parts. Everyone agreed that the Bill should include both the private and the public, and that they should use the UK model in drafting the new provision. They agreed that there should be some kind of limited criminal sanctions, and that they needed to look at the whistle-blowing clauses from the Environment, Intelligence and Income Tax Acts/Bills to see how they compare to this one. Further, they agreed that they need to look into the issue of anonymity and confidentiality more fully. They also need to look at whether or not they should create a positive duty, and whether or not people should be compensated for blowing the whistle.
Clause 67: Right of Internal Appeal to Head of Governmental Body.
On analysing the submission by Transnet the Chairperson warned that the appeal referred to in the clause relates to internal appeals within the Departments and must not be confused with appeals to the courts of law. The requester need not initiate the appeal. A requester has a choice either to make an internal appeal to the Department or to go to court as allowed by Section 72.
With regard to the submission by the Mpumalanga Government, the Committee concluded that it had been incorrectly placed here in the summary of submissions and it belonged to the section on whistle blowers.
Clause 68: Manner of Internal Appeal and Appeal Fees.
The Committee agreed that this section is to stand over until the fee structure is discussed.
Clause 70: Decision on Internal Appeal and Notice thereof.
Ms S Camerer (NNP) supported the submission by the Banking Council of South Africa in Section 70(7) that the word "dismissed" be replaced by the word "granted". Ms F Chohan-Kota (ANC) suggested that the South African Human Rights Commission (SAHRC) must be charged with the duty of ensuring that the Director General meets the provisions of the Act.
Clause 71: Urgent Internal Appeals
The Chairperson suggested that various options should be explored on the forum to be used when an application against the refusal of an urgent appeal application is made. The first option is the one in the Bill, namely the Supreme Courts. The second possibility is the Magistrates’ Courts acting as such. The third option is the use of the Magistrates’ Courts by a tribunal with different procedures as those of the Magistrates’ Courts. The fourth option is the same as the third option but it must have a tribunal out of the court. The fifth option is the Administrative Tribunal working as a court. The sixth option is that of an information office as used in Australia. This option handles the area between the department and the legal system where the two parties can be called in and the problem enquired into.
Mr L Landers (ANC) said he understood all the options but wanted to know whether the Magistrates’ Courts were ready for the task. Ms S Camerer (NNP) opposed the idea of the use of Magistrates’ Courts describing them as "in a mess", overburdened and unsophisticated. The Chairperson concurred with her.
Mr P Smith (IFP) agreed that Magistrates’ Courts are not suitable for the job and he suggested that a structure working like the Commission for Conciliation Mediation and Arbitration (CCMA) be considered for use. He conceded that he understands that such a structure may be expensive.
Mr B Magwanishe (ANC) proposed that the effectiveness of the Small Claims Courts be investigated and be considered for use. The Chairperson disagreed with this view and said permanent full time people are needed for the job contemplated as opposed to the voluntary presiding officers currently used in the Small Claims Courts.
Mr H Schmidt (DP) pointed out that the Supreme Courts are out of bounds for the majority of the people. He opted for the CCMA / Small Claims Courts type of forum which have the advantage of opening after hours.
Mr M Masutha said although he understood the problems facing the Magistrates’ Courts, he did not think they were so incapacitated as to be unable to carry out this task. He submitted that these courts are geographically suited for ordinary people in the rural areas and in the townships.
The Chairperson closed the meeting by stating that no one supported the option as contained in the Bill. He said the other options would therefore have to be considered.
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