Prohibition of Mercenary Activities & Regulation of Certain Activities in Country of Armed Conflict Bill: Finalisation; Protecte

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
25 October 2006
PROHIBITION OF MERCENARY ACTIVITIES AND REGULATION OF CERTAIN ACTIVITIES IN COUNTRY OF ARMED CONFLICT BILL: FINALISATION; PROTECTED DISCLOSURES ACT: PRACTICAL GUIDELINES FOR EMPLOYEES

Acting Chairperson: Mr S Shiceka (ANC-Gauteng)

Documents handed out:
Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict [B42B-2005]
Portfolio Committee on Justice Report on Practical Guidelines
Practical Guidelines for Employees on Protected Disclosures Act
Amended Part III of proposed Practical Guidelines

SUMMARY
The Committee were briefed on the issues that this Bill was intended to regulate. The Department again tried to allay concerns that this legislation would impact on the right of individuals to practice their profession. The Committee was taken through the Bill clause by clause and members raised matters that still posed a concern. The Freedom Front Plus and the Democratic Alliance argued for amendments to the clauses that required enlistment within a foreign country to be authorised. They believed that registration would be a more appropriate requirement. The Chairperson urged members to consider the legislation within the context of South Africa’s foreign obligations and foreign policy. There was also a briefing on the guidelines that would govern the Protected Disclosures Act (No 26 of 2000). Members were particularly concerned about how employees, who made disclosures, and employers, against whom frivolous disclosures were made, would be protected.

MINUTE
Motion of Desirability for Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill
Mr Shiceka reminded the Committee that the proposed Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict legislation related to a multi billion industry and was thus very important.

Mr D Worth (DA - Free State) asked if there would be a debate on the Bill when it was voted on in the plenary session. The matter had already been discussed extensively in the National Assembly and the Democratic Alliance had proposed certain amendments. He felt that since his party might object to certain matters during the debate, he should not agree to the motion of desirability.

Mr Shiceka explained that the motion of desirability allowed for the Bill to be tabled for its second reading. Once the legislation was up for adoption the Democratic Alliance would be able to voice their objections. The motion of desirability gave a platform from which the Committee could discuss the matter further.

Dr F van Heerden (FFP - Free State) seconded the motion of desirability.

Clause by clause discussion
Mr Siviwe Njikela (DOD: Legal Unit) said that he always got nervous when he had to discuss this proposed legislation because almost everyone had a very strong opinion on it.

He explained that mercenary activity was one of the areas the Department aimed to address through the new legislation. Following debates in the National Assembly and the subsequent presentations on the Bill he had gotten the distinct impression that the prohibition of mercenary activity was welcomed. Internationally, too, mercenary activity was regarded as an unlawful act. South Africa, in terms of its international obligations and its membership of organisations such as the United Nations and the African Union, had a responsibility to ensure that its territory and its citizens were not used for mercenary activities. The Bill aimed to ensure this.

The second area which seemed to create much confusion related to the regulation of assistance and services in an area of armed conflict or in a regulated country. The Regulation of Foreign Military Assistance Act (RFMA) of 1998 regulated foreign military assistance specifically. In the proposed legislation there was a shift from military assistance specifically, to now include any assistance and service in an area of armed conflict or in a regulated country. Humanitarian activities were completely excluded from the present RFMA. This allowed a person who wanted to render humanitarian assistance freedom to do so without any kind of regulatory mechanism being applied by the Government. Under the proposed legislation humanitarian assistance would be subject to regulation through a process that would apply to all humanitarian organisations that wanted to render assistance.

The Department’s experience in the application of the RFMA Act was that a number of South African organisations had been able to go to areas of armed conflict under the guise of humanitarian assistance only to then render services that went beyond the humanitarian mandate. It became necessary for the Government to create a framework to have oversight over such activities especially within areas of armed conflict.

The third area the legislation aimed to address related to enlistment which was also not regulated under the RFMA Act. Questions were raised as to the appropriateness of South Africa not to have regulatory mechanisms in place for its citizens who wanted to join foreign armed forces. A number of South Africans were enlisted in foreign countries and it appeared as though South Africa was a party to certain agreements that appeared to encourage such “cross pollination”. He emphasised that while the Government would not be prohibiting the enlistment of South Africans in any foreign armed forces, they would have to go through a particular process to get the necessary authorisation allowing them to enlist. The Department would then be able to account for all people enlisted abroad.

Concerns had been raised about how such legislation would impact on the rights guaranteed by Section 22 of the Constitution. This section guaranteed the right of individuals to practice their profession. The Department had tried to explain on numerous occasions that the issue of the limitation of the right itself would only enter into the picture if one were to impose a ban on that activity. The Bill merely required that one went through a particular process of enlistment and was no different to a range of other regulatory frameworks that were imposed on a range of other matters.

The issues of enlistment and assistance had highlighted the need for some transitional provisions. The Bill sought to regulate conduct and activity that up until now had not been regulated by the RFMA Act. Concerns had been raised that one would be criminalising conduct which up until now had not been unlawful or criminal. To accommodate such concerns, the Department created a transitional framework which sought to give those who were already enlisted in a particular country six months within which to apply to the National Conventional Arms Control Committee (NCACC) for their continued enlistment within that particular force. This transitional arrangement would prevent retrospective criminalisation of that conduct. The same would apply to assistance - since the Department had broadened the definition of foreign military assistance. They felt it necessary to give people who might be rendering such assistance the opportunity to legitimise their activities in those countries. The NCACC would then evaluate their activities and apply the criteria that were set out in Clause 9 to determine whether those activities were not contrary to South Africa’s obligations.

Mr Njikela continued saying that the Defence Act prescribed certain instances in which the defence force could be employed. These were prescripts which applied specifically to state armed forces. At present the Foreign Military Assistance Act, which would be repealed by the proposed legislation, was the only legislation that regulated the conduct of individual citizens and their participation in armed conflict. The Bill would thus regulate the participation or the conduct of South Africans in an area of armed conflict or in a regulated area.

Clause 1(1) Definitions
The definition for ‘armed conflict’ had generated much debate. If one looked at the Geneva conventions as well as many other national conventions a number of attempts have been made to define what constituted an armed conflict. It would be very risky for South Africa to come up with its own definition. Taking into consideration all the other instruments that governed the conduct of the State, the legislation rather than trying to redefine ‘armed conflict’ indicated all the additional things that definition included and which South Africa might specifically want to regulate. He pointed out that if South Africa were to redefine ‘armed conflict’ they would be limiting the definition which might bring it into conflict with some of the international instruments it had also ratified.

The definition of ‘assistance or service’ would to a large extent remain the same as the definition of ‘foreign military assistance’ within the RFMA Act. As already explained, the Department had now also provided for humanitarian assistance.

‘Committee’ referred to the National Conventional Arms Controls Committee. Under the RFMA Act the NCACC was a body which was established in 1995 by proclamation of the President. The National Conventional Arms Control Act was passed in 2002 making the NCACC a statutory body that was established in terms of that Act. The new definition aimed to make rectify the definition in accordance with the NCACC’s changed status.

When the war in Iraq erupted a number of South African companies went there to deliver one service or the other. Most of them did so without seeking the necessary authorisation from the NCACC. When asked to explain their presence there, they responded that notwithstanding the fact there were a number of running battles as reported by the media, there was no conflict in Iraq and that the conflict actually ended when Sadam Hussein was deposed by the allied forces. It was then decided that over and above defining what an armed conflict was, one also had to try to address those situations where South Africans sought to go into a particular country to destabilise it. Even though there might be no armed conflict in such a country, there might be tension or instability which would make it sensitive to destabilising forces.

There was a concern that perhaps the Government had to be empowered to be able to assess countries in order to make a determination as to whether the instability in a country justified the Government seeking to regulate participation of South Africans in rendering certain assistance or service which was likely to lead to a war. The Department felt that on the advice of the NCACC, the President should be able to say that he declared a particular country as an area of armed conflict because of the tensions and instability that existed there. The Government would recognise that that country was not in an armed conflict but due to the state of affairs on he ground certain services or capabilities could lead to a full scale conflict.

The definition of ‘security services’ was new to the Bill but it was not new to South African law: The definition was taken verbatim from the Private Security Industries Regulation Act of 2001. The RFMA Act merely referred to “security services to a party, to armed conflict or to his property“ and the Department had thought it necessary to further define what was meant by security services.

Clause 1(2)
Mr Njikela said that there was a very strong awareness that South Africa had certain obligations in terms of international law. South Africa’s actions should not negate these obligations. If in terms of those obligations South Africans were required to render certain services, those services should not be seen as assistance or service and need not be authorized by the NCACC.

Clause 2
In this clause the Department attempted to broaden the definition of mercenary activity which traditionally was often defined as direct participation as a combatant in an armed conflict and usually for private gain. Looking at the number of reports that had been issued, there was a growing realisation that mercenary activity was taking other forms too. The DOD now sought to regulate the training of people for involvement in such activity as well as the financing of such activities. If one applied the traditional definition of a mercenary activity one would not be able to proceed against persons involved in such activity. Under the proposed legislation recruitment of people for mercenary activities, their training, support or financing (even if you do not participate in those activities yourself) would be viewed as mercenary activities.

Mr N Mack (ANC – Western Cape) wondered whether instances whereby foreign nationals were involved in mercenary activity but came to hideout in South Africa would be covered by the legislation.

Mr Njikela explained that if a foreign national were using the territory of the Republic to commit offences, South Africa had jurisdiction over that person. In terms of international law mercenary activity was unlawful and criminal irrespective of where such activities took place thus South Africa would have jurisdiction over a person suspected of such activity. The legislation however dedifferentiated between mercenary activity and assistance or service. The latter was not necessarily regarded as a crime or an offence within international law.

Dr van Heerden wondered whether a South African lawyer representing someone in a foreign country that was in armed conflict would be seen as being involved in mercenary activity.

Mr Njikela said that this question had been raised on a number of occasions. The proposed legislation aimed to regulate mercenary activity and assistance or service. These areas of activity were defined in the legislation. A lawyer who genuinely went to defend a person in another country could not be seen as rendering assistance, a service or be involved in mercenary activities. He cautioned that it was however not unimaginable that a lawyer might go to another country under the pretext of going to defend someone only to get involved in other activities while there.

Mr A Manyosi (ANC-Eastern Cape) recalled that Adv George Bizos had gone to Zimbabwe to defend the Movement for Democratic Change (MDC) leader Mr Morgan Tsvangerai who had allegedly intended to violently overthrow President Robert Mugabe. At the time it had been feared that Adv Bizos would be forced to return to South Africa but that had not been the case.

Mr Z Ntuli (ANC- KwaZulu-Natal) wondered whether doctors and nurses working abroad would be affected by this legislation.

Mr Njikela said that doctors often went to countries that were in conflict in order to render humanitarian assistance e.g. doctors without borders whose primary focus was the provision of health services to victims of war. The activities of such doctors and nurses would be provided for under the regulations for humanitarian assistance. Such organisations merely needed to register as humanitarian organisations to be allowed to go and render their services. Again he added that it was not unimaginable for doctors and nurses to go beyond what they mandated to do once they were in the country.

Mr Shiceka wondered whether it was better for parties to register so that they would not be suspected of any unlawful a ctivities.

Mr Njikela said that no one would discourage anyone from registering for the services they wanted to render. He was reluctant to say that all people should go and register because the NCACC would be inundated with applications. The NCACC would screen every application and make an informed decision to determine who needed to register.

Clause 3
Mr A Moseki (ANC – North West) said that any South African citizen who loved peace and stability would approve of this clause.

Mr Shiceka noted that Clause 3(1)(e) spoke of assisting in the furthering of a party’s military interests. How wondered what happened if one rendered such assistance or services to more than one party.

Ms Carin Booysen (State Law Advisor, Office of Chief State Law Advisor) explained that from a drafting perspective ‘party’ included the plural.

Clause 4
Mr Njikela at present enlistment in armed forces outside of South Africa was not regulated. He believed that in some circles this clause was still much contested. People felt that it infringed upon their constitutional rights. The clause was a request to follow a particular process and not a prohibition. Clause 9 specifically prescribed the guidelines the NCACC should follow when evaluating whether authorisation or exemption should be granted. A number of provisions had been built into the clause to ensure that people’s rights with regard to administrative justice and the right to refer matters to court were recognised in instances where a person felt that they had been treated unfairly.

Since the aim was to regulate and not to prohibit enlistment with foreign armed forces, Dr van Heerden proposed that instead of ‘authorisation’ the word ‘registration’ should be used. He remembered that he had raised the same issue at the joint committee meeting at which the Minister of Defence was present. Minister Lekota had been receptive to the changing of ‘authorisation’ to ‘registration’. He felt that authorisation would place a heavier burden on the NCACC. If registration was required a subcommittee could determine whether one complied with the registration requirements or not. He added that Freedom Front Plus was against mercenary activities.

Mr Moseki said that this matter had been discussed. The Minister had been very clear that the Department needed to know where South Africans who were enlisted abroad were stationed. If one had dual citizenship you were subject to the rules and regulations of the country you were in. The Government wanted South Africans to be responsible not only to South Africa but also to the world.

Dr van Heerden suggested that registration be used for in the case of enlistment as well.

Mr Njikela explained that the registration vs authorisation debate had specifically related to, Clause 5. The Minister had said that humanitarian assistance due to its nature and South Africa’s obligations to facilitate the passage of military assistance to people in need and victims of war made authorisation impractical. All humanitarian organization should rather be registered. Humanitarian assistance had to be given within a very short space of time to save lives. If each time these organisations had to get authorisation from the NCACC they might not perform their duties.

Mr Worth noted that according to clause 4(1) anyone who wanted to enlist with a foreign armed force had to register with the NCACC. There were about 800 South Africans enlisted with the British defence force. He wondered what the impact would be if one had already enlisted with a foreign army and was deployed to an area of armed conflict.

Mr Shiceka wondered how the Department would deal with a situation whereby South Africans enlisted in the British defence force were expected to fight the South African National Defence Force.

Mr Njikela explained that no offence was created in respect of Clause 4(2). The sub clause aimed to provide for situations in which people might have the authorisation to enlist in a particular defence force which may later be at war with another country which South Africa might consider a friendly nation. Such a conflict would have political implications. The sub clause was necessary to protect South Africa’s neutrality in wars that “were not really South African wars”. He said that there were a number of legislations in the rest of the world that dealt with such issues.

Clause 5
Mr Njikela had detailed the implications of this clause in his opening remarks.

Cause 6
Mr Njikela explained that this clause related to ‘grey areas’ – situations where conflict was imminent. Any South African that wanted to render assistance or services in that country would have to get authorisation from the NCACC.

Clause 7
Mr Njikela explained that this clause set out the procedure for the application for authorisation as required by Clauses 3, 4 and 5. It detailed the powers the NCACC would have in respect of each application. Sub clause 5 was provided for the rights of applicants who felt aggrieved.

Clause 8
Mr Njikela said that the President had the power to declare certain areas as regulated areas. This clause created a framework whereby the Department could have a register for all authorisations, proclamations, exemptions and declarations.

Clause 9
This clause explained what the NCACC would be guided by when giving authorisation. This was taken wholly from the RFMA Act.

Mr Manyosi requested clarity in Cause 9(d). He wondered who decided where the balance of power was situated.

Mr Worth wondered how long applications for authorisation would take before a decision was made. He wondered whether the NCACC would be able to feat with the volume of applications.

Dr van Heerden was concerned about the restrictions authorisation would place on soldiers enlisted in one army who then received a better offer from another army. He asked if these soldiers would then have to apply for authorisation again. He felt that a process of registration would give greater mobility.

Mr Shiceka said that it was important to keep in mind the political context in which the legislation was created and would exist. South Africa decided to promote peace and order in Africa and the world. This formed the corner stone of South Africa’s foreign policy. All interactions had to be informed by this policy. If South Africa was involved in a war against terrorism any soldiers enlisted in any place in the world and who fought terrorism would be justified in their activity and their authorisation would not be taken away.

Secondly, South Africa was promoting peace. Thus if one learnt of a situation in which South Africans were stoking the fires of war such action militated against the country’s foreign policy. It was necessary to know where all South Africans were enlisted and what they were doing. He felt it important to understand the legislation in the context of that policy.

He added that South Africa could not be seen as speaking with a forked tongue: promoting peace yet South Africans were involved in wars across the globe. It was necessary to understand the broader political context.

Dr van Heerden explained that registration requirements could be sculpted such that they required people to inform the NCACC of any change in their locations. He agreed that South Africa had to know where its citizens were at all times. He still felt that registration was a better option and raise the matter in the house.

Mr Shiceka said that South Africa was a heterogeneous country with different views. It was important that South Africa’s policies overrode everything else. If there were no control measures one might find South Africans slaughtering one another because of their enlistment in different armies. Authorisation would allow for such actions to be avoided.

Mr Mack said that authorisation was needed if one went into the armed forces. Regulation was for humanitarian activities. If one went onto any war situation one could potentially kill people and such activity needed to be authorized, not regulated. Authorisation was also necessary so that one could track the activities of soldiers abroad so that if their lives were put at risk the Government could negotiate for their safety. He added that after the 2001 terror attacks on the United States no country would be sympathetic to terrorist activity.

Mr Worth said that many governments across the world have indicated that if their nationals were found to be involved in terrorist activities their countries would not negotiate on their behalf. He said that much money flowed into the country due to South Africans’ legitimate involvement in security services.

Mr Shiceka said that such activities were provided for under assistance and was protected in the legislation. The law did not prohibit people from earning an income.

Mr Moseki said that he would be surprised if everyone was not in agreement after Mr Shiceka’s explanation of why the legislation was important. He had adequately placed the discussion in its political context. Sometimes it was important to listen to others reasoning instead of being rigid in what one had been taught to believe. South Africa did not want to be party to a situation that contributed to the activities of terrorists. It did not want any group of South Africans to, in the guise of humanitarian work, get involved in unlawful activities.

The Chairperson wondered whether the opposition parties had any other issues other than those related to the registration and authorisation provisions that they wanted to raise.

Dr van Heerden said that his amendments related only to clauses 4 and 5; these amendments would of course imply consequential amendments.

Mr Worth was aware that the Democratic Alliance had certain amendments that had been proposed by their spokesman on Defence. The party had nothing against the provisions related to mercenary activities. Their concerns related to the provisions related to people who wished to join professional armies overseas.

Mr Shiceka said that he himself had been lobbied by some very powerful people. The requested him to propose certain specific amendments. He had rejected efforts to influence him and chose to be guided by his conscience. Members were creating a foundation for their children and grandchildren. The proposed legislation aimed to ensure that South Africa did not promote and stoke conflicts. The interest of South Africans should be paramount.

Clause 10
Mr Njikela said that the Department merely prescribed offences and their sentences especially with regard to Clauses 4 and 5. Clause 10 empowered the Government to confiscate any property used in the committing of the offences.

Mr Shiceka said that judges took a dim view when they felt that they were being prescribed to. He wondered why Clause 10 did not also provide for the confiscation of he proceeds accumulated as result of mercenary activities.

Mr Njikela did not think that there was anything that would prevent the Government to proceed to confiscate any proceeds under the Prevention of Organised Crime Act of 1998.

Mr Ntuli wondered what would happen to weapons that were bought with the express purpose of facilitating conflict.

Mr Shiceka said that the legislation allowed for two actions to be taken: the confiscation of property used to commit the crime as well as the right to confiscate the proceeds of that crime. Mr Shiceka felt that not stating clearly that money too would be confiscated might create a problem at a later stage.

Ms Booysen said that if one considered how the subsection was drafted one would see that the court could consider the forfeiture of the proceeds and property related to the crime. Section 35 of the Criminal Procedure Act (????) allowed the Court to determine the shape the seizure would take.

Mr Shiceka said that the Committee would have preferred if the clause was clearer.

Mr Moseki wondered whether the issue could be addressed in the regulations that would govern the legislation. He said that he understood that normally departments did not interact with Committee’s as far as regulations were concerned but he felt that such interaction between the DOD and the Committee would be useful.

Mr Shiceka agreed and said that it was important that the regulations were in tandem with the legislation.

Clause 11
Mr Njikela said that of particular interest here was that irrespective of where crimes were committed South Africa retained jurisdiction over the perpetrators.

Clause 12
Mr Njikela pointed out that under the RFMA Act most of the powers were vested in the National Executive. The feeling was that since the mater was of national importance it should be elevated to the level of the President. The president could thus issue regulations with regard to registration and other administrative matters etc.

Clause 13
This cause empowered the President to grant exemption to certain humanitarian organisations. If an organisation was formed but had not been registered the President could grant an exemption allowing it to go and render certain services. This power would be exercised subject to the provisions of Clause 9.

Clause 14
Mr Njikela said that the Department had amended the Criminal Law Amendment Act of 1997 because it did not prescribe sentences for such crimes - sentencing was left to the discretion of the court. Despite fines of up to R2 million there was a feeling that the fines did not match the gravity of the crime. The proposed legislation would also repeal the RFMA Act.

Clause 15
Mr Njikela commented on this clause in his opening remarks.

Clause 16
Mr Njikela had no additional comments as far as this clause was concerned.

Mr Shiceka wondered how urgent the passing of the legislation was.

Mr Njikela said it was an urgent matter. The Bill had been introduced in Parliament outside the parliamentary timelines and as a matter of priority. The Department had not however attached any particular timeframe to the passage through the parliamentary processes.

Mr Shiceka agreed with Mr Moseki that the Department should now consider the regulations so that when next they reported to the Committee the matter could be concluded. He asked members to indicate whether they wanted to vote on the Bill immediately.

Dr van Heerden said that in fairness to the Democratic Alliance voting should take place at a later stage. He too would like to return to his party to discuss the matter. The FFP felt very strongly about the amendments but he did not foresee that there would be any problems.

Mr Shiceka said that the Committee could call another meeting at which they could vote. He hoped that opposition members would express the Committee’s views as far as the political context of the legislation.

Protected Disclosures Act (2000): Practical Guidelines for Employees Briefing
Mr Henk Du Preez (Department of Justice and Constitutional Affairs Legal Drafter) briefed the Committee on the background to guidelines. The Promotion of Access to Information Act was introduced to Parliament as the Open Democracy Bill. The Bill had contained a clause dealing with whistle blower protection but it was felt that the provision was not really properly suited for the legislation dealing with access to information. It was then decided that a second Bill had to be promoted. That Bill was eventually enacted as the Protected Disclosures Act. The Act stated that employees who made disclosure regarding any corrupt or unlawful activity in the workplace would be protected from any negative consequences that may follow the disclosure. It also detailed the routes employees could use to make their disclosures. The guidelines to the Act amongst others explained the legislation, detailed the routes employees could use to make their disclosures and gave information on the protection the law offered them.

Discussion
Mr Shiceka agreed that the guidelines were very simple. He wondered whether a pocket-sized booklet would be made available to make them more user-friendly.

Mr Du Preez said that at this stage the Department wanted to get the guidelines out into the public as soon as possible. For now the Government Gazette version would have to suffice. It would also be available on the Department’s website. A pocket size version would hopefully be made available in future.

Mr Moseki wondered why disclosures could not be made via Parliament as well.

Mr Du Preez explained that the guidelines at this stage were merely a discussion document offering an explanation of the Act. One of the very first drafts the Department had made, proposed that Parliament should also be included as a route. The Portfolio Committee on Justice and Constitutional Affairs had at that stage felt that since they were creating a new system of making disclosures they should try to limit those to whom disclosures could be made to the most obvious persons who might be in positions to immediately act upon a disclosure.

Dr van Heerden wondered who would cover the costs involved if an employee chose to use the legal route of making their disclosure. Many people shied away from making disclosures because of the financial cost involved.

Ms F Nyanda (ANC – Mpumelanga) wondered what compensation would be available to someone who was unfairly dismissed.

Mr Du Preez said that strictly speaking one would have expected the Department of Labour to administer the legislation since it addressed the employer-employee relationship. The remedies were squarely situated in the realm if labour legislation so employees could get assistance from their labour union.

Mr Du Preez said that when the Committee approved the Bill they requested the South African Law Reform Commission (SALRC) to do further research into the legislation. On of he options the Portfolio Committee had considered at that stage was rewarding employees who made disclosures. They realised however that that would be very difficult and would involve an intricate part of he law. The SALRC would soon be submitting their report.

Mr Manyosi wondered who decided whether an employee acted in good faith when making their disclosure.

Mr Du Preez said that this dependent on whether the employee may be subjected to an occupational detriment and whether he or she then sued his or her employer. This would be determined in a court of law. The good faith requirement was extremely important because one did not want an employee who might have taken part in the unlawful activity to make a protected disclosure after they realised that they would soon be discovered.

Mr van Heerden wondered what would happen in cases of frivolous reports. He wondered how employers would be protected.

Mr Du Preez said that a frivolous disclosure would not qualify as a disclosure and should the employer decide to take disciplinary action the act would not shield the employee. It also did not shield the employee from civil or criminal liability. The legislation was there for the responsible employee who felt that he or she had to disclose unlawful or unprofessional activities in the workplace.

Mr Shiceka said that this was the first briefing. The Committee would consider what he had briefed them on, and another meeting would be convened at which the matter would be finalised. He urged members to remember that they were not dealing with regulations but with guidelines. Members should thus raise issues that were dealt with in the legislation and regulations but were not necessarily covered in the guidelines. Amending the legislation would require another process.

The meeting was adjourned.