REPUBLIC OF SOUTH AFRICA

DRAFT WHISTLE-BLOWER PROTECTION BILL

--------------------------------

---------------------------------

(...................................................)

[B - 99]

_______________________________________________________________

REPUBLIEK VAN SUID-AFRIKA

............................................. WETSONTWERP

--------------------------------

--------------------------------

(MINISTER VAN ......................)

[W - 99]

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

___________ Words underlined with a solid line indicate insertions in existing enactments.

_______________________________________________________________

B I L L

1. In the Act, unless the context otherwise indicates-

(i) "employee" means any person who works for another person or for the State and who receives, or is entitled to receive, any remuneration and in any manner assists in carrying on or conducting the business of an employer;

(ii) "Minister" means the Minister responsible for Justice;

(iii) "this Act" includes any regulation made and in force in terms of section ....;

(iv) "prescribed" means prescribed by regulation in terms of section ....;

(v) "Human Rights Commission" means the Human Rights Commission referred to in section 181(1)(b) of the Constitution of the Republic of South Africa, 1996;

(vi) "whistle-blower" means a person making a qualifying disclosure;

(vii) "employer" means any person who employs or provides work for any person and remunerates that person or expressly or tacitly undertakes to remunerate him or her.

2. (1) This Act shall apply to any protected disclosure which is made after the date on which this Act came into operation.

(2) A person who made a disclosure of information, within 3 years before the date on which this Act came into operation, shall be able to exercise any remedy referred to in section 12 if that disclosure would have qualified as a protected disclosure in terms of this Act.

3. (1) The objects of this Act are-

(a) to protect persons disclosing evidence of contraventions of the law, maladministration or corruption in governmental or private bodies;

(b) to provide for protection against any detriment suffered by a person who makes a protected disclosure.

4. (1) In this Act a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the person making the disclosure, tends to show one or more of the following -

(a) that a criminal offence has been committed, is being committed or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject;

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur;

(d) that the health or safety of an individual has been, is being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be damaged;

(f) that corruption, dishonesty or serious maladministration in a governmental body or on the part of an official of that body has taken place, is taking place or is likely to take place and without limiting the generality of this subsection includes-

(i) an abuse of power by a governmental body or an official thereof;

(ii) an improper or unauthorised use of the funds or other assets of the state or a governmental body; or

(iii) negligent administration resulting or likely to result in a substantial waste of resources, danger to the health or safety of an individual or the public, or an offence referred to in section 1 of the Corruption Act, 1992 (Act No. 94 of 1992);

(g) that corruption, dishonesty or serious maladministration in a private body or on the part of an official or employee of that body has taken place, is taking place or is likely to take place and without limiting the generality of this subsection includes-

(i) price-fixing or other anti-competitive conduct;

(ii) misleading or unfair practices towards consumers;

(ii) deception of, misrepresentation to, or breach of an obligation towards shareholders; or

(iv) insider-trading; or

(h) that information tending to show any matter falling within anyone of the preceding paragraphs (in this Act referred to as an "impropriety") has been, is being or is likely to be deliberately concealed.

(2) For the purposes of subsection (1), it is immaterial whether the impropriety occurred, occurs or will occur in the Republic of South Africa or elsewhere, and whether the law applying to it is that of the Republic of South Africa or of another country.

(3) A disclosure of information is a qualifying disclosure provided that -

(a) the person making the disclosure does so in good faith; and

(b) the disclosure is not made by a person to whom the information had been disclosed in the course of obtaining legal advice and where a claim of legal professional privilege could be maintained in legal proceedings.

(4) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

5. (1) A qualifying disclosure is a protected disclosure where it is made-

(a) substantially in accordance with any applicable external or internal procedure for reporting or otherwise remedying the impropriety concerned;

(b) to the employer of the person making the disclosure where there is no applicable external or internal procedure for reporting or otherwise remedying the impropriety concerned; or

(c) where the person making the disclosure reasonably believes that the impropriety relates solely or mainly to -

(I) the conduct of a person other than his or her employer; or

(ii) any other matter for which a person other than his or her employer has legal responsibility;

to that other person .

(2) A person who, in accordance with a procedure authorised by his or her employer, makes a qualifying disclosure to a person other than his or her employer, shall be treated for the purposes of this Act as making the qualifying disclosure to his or her employer.

6. A qualifying disclosure is a protected disclosure if it is made in the course of obtaining legal advice.

7. (1) A qualifying disclosure is a protected disclosure if the person making the disclosure-

(a) reasonably believes that the information disclosed, and any allegation contained in it, are substantially true;

(b) has used or exhausted any applicable procedure referred to in section 5 to report or otherwise remedy the impropriety concerned; and

(c) does so in good faith.

(2) Subsection (1) applies only if the person concerned discloses the information to-

(a) a committee of Parliament or of a provincial legislature;

(b) the Public Protector;

(c) the Human Rights Commission;

(d) the Auditor-General;

(e) the National Director of Public Prosecutions or a Director of Public Prosecutions; or

(f) more than one of the persons or bodies referred to in paragraph (a) to (e).

(4) Subsection (1) shall not apply where the disclosure is made by a person to whom the information had been disclosed in the course of obtaining legal advice where a claim of legal professional privilege could be maintained in legal proceedings.

8. (1) A qualifying disclosure is a protected disclosure if -

(a) the person making the disclosure reasonably believes that the information disclosed, and any allegation contained in it, are substantially true;

(b) the person making the disclosure does not make the disclosure for purposes of personal gain;

(c) in all the circumstances of the case, it is reasonable for him or her to make the disclosure; and

(d) one or more of the conditions referred to in subsection (2) apply.

(2) The conditions referred to in subsection (1) are-

(a) that at the time the person who makes the disclosure reasonably believes that he or she will be subjected to a detriment if he or she makes a disclosure to his or her employer in accordance with section 5;

(b) that, in a case where no person or body is prescribed for the purposes of section 7 in relation to the relevant impropriety, the person making the disclosure reasonably believes that it is likely that evidence relating to the impropriety will be concealed or destroyed if he or she makes the disclosure to his or her employer;

(c) that the person making the disclosure has previously made a disclosure of substantially the same information to-

(i) his or her employer; or

(ii) to a person or body referred to in section 7;

(d) that the impropriety is of an exceptionally serious nature; or

(e) that the person makes the disclosure during the course of giving evidence under oath in court.

(3) In determining for the purposes of subsection (1)(c) whether it is reasonable for the person making the disclosure to make the disclosure, the following shall be taken into consideration-

(a) the identity of the person to whom the disclosure is made (giving due weight, as regards the disclosure to one or more news media the public interest in openness and accountability which should clearly be shown to be outweighed by any need for non-disclosure);

(b) the seriousness of the impropriety;

(c) whether the impropriety is continuing or is likely to occur in the future;

(d) whether the disclosure is made in breach of a duty of confidentiality of the employer towards any other person;

(e) in a case falling within subsection (2)(c), any action which the employer or the person or body to whom the disclosure was made in accordance with section 7 was made has taken or might reasonably have expected to have taken as a result of the previous disclosure;

(f) in the case of the matter referred to in subsection (2)(c)(I), whether in making the disclosure to the employer the person making the disclosure complied with any procedure whose use by him or her was authorised by the employer;

(g) any belief on the part of the person making the disclosure that he or she would suffer serious reprisal or wrong doing or impropriety;

(h) inequalities of access to information and other socio-economic inequalities; and

(i) the public interest.

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information referred to in subsection (2)(c) where such subsequent disclosure extends to information concerning an action taken or not taken by any person as a result of the previous disclosure.

9. No person is civilly or criminally liable or may be subjected to disciplinary action in any court or administrative or other tribunal on account of having disclosed any information if, before the time of the disclosure of the information, it had become available to the public, whether in the Republic of South Africa or elsewhere.

10. (1) No person is civilly or criminally liable or may be subjected to disciplinary action in any court or administrative or other tribunal on account of having made a protected disclosure.

(2) A person who has made a protected disclosure may not be subjected to any detriment by any person on the ground that the person making the disclosure has made a protected disclosure.

11. (1) Any person who made, or indicated that he or she intends making, a protected disclosure or who refused to participate in an impropriety, may not as a result thereof or partly as a result thereof-

(a) in respect of his or her employment, profession or office-

(i) be dismissed, suspended, demoted, harassed or intimidated;

(ii) be transferred against his or her will;

(iii) be refused transfer or promotion;

(iv) be subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage, be otherwise detrimentally affected in respect of that employment, profession or office, including, but not limited to, employment opportunities and work security;

(v) be refused a reference from his or her employer;

(vi) be provided with an adverse reference on account of having made the disclosure;

(b) be denied appointment or election to any employment, profession or office; or

(c) be threatened with an action referred to in paragraph (a) or (b).

(2) Subsection (1) applies whether or not the person who disclosed the information concerned has used or exhausted any other applicable external or internal procedure to report or otherwise remedy the impropriety concerned.

(3) A provision in a contract of employment or other agreement whereby any provision of this section is excluded, is void.

(4) An employee who has made a protected disclosure must, on his or her request and if reasonably possible, be transferred from the post or position occupied by him or her at the time of the disclosure to another post or position in the same division or another division of his or her employer or, where the person making the disclosure is employed by a governmental body, to another governmental body.

(5) The terms and conditions of employment of a person transferred in terms of subsection (4) may not, without his or her written consent, be less favourable than the terms and conditions applicable to him or her immediately before his or her transfer.

(6) If it is proved, in any criminal or civil proceedings or disciplinary action before a court or administrative tribunal with respect to an alleged contravention or threatened contravention of subsection (1), that an action contemplated in subsection (1)(a), (b) or (c) took place within two years after a disclosure, indication of an intention to disclosure or refusal contemplated in subsection (1), it must be presumed, unless the contrary is proved, that such action took place as a result, or partly as a result, of that disclosure, indication of an intention to disclose or refusal.

12. (1) Any person who suffers a detriment in breach of sections 9, 10 or 11 shall be entitled to bring a claim for compensation for any loss or damage he or she has suffered as a result thereof or any other appropriate relief.

(2) Any person may lodge an application with the Court for appropriate relief in terms of subsection (1) (in the case of a detriment that has been suffered in the workplace in accordance with section 17(2), in the Council for Conciliation, Mediation and Arbitration).

13. (1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the person making the disclosure from making a protected disclosure.

(2) This section applies to any agreement between an employee and his or her employer (whether in the employee's contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

14. The head of a governmental body must give to every official of the body a copy of a notice prepared by the Human Rights Commission in consultation with the Public Protector, which explains-

(a) the provisions of this Act and all external and internal procedures available to an official of the body who wishes to report or otherwise remedy an impropriety or, when those provisions or procedures are amended, that amendment;

(b) that, if a contravention or threatened contravention of a provisions of this Act in relation to a person is alleged, that the person may lodge an application with the Court for appropriate relief.

15. The Minister may, after consultation with the Human Rights Commission and the Public Protector and after tabling in Parliament, by notice in the Gazette make regulations regarding-

(a) any matter which is required or permitted by this Act to be prescribed;

(b) any notice required by this Act;

(c) any administrative or procedural matter necessary to give effect to the provisions of this Act.

16. This Act shall be called the Whistle-blower Protection Act, 1999, and takes effect on a date determined by the President in the Gazette.