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Corruption Watch is in Parliament today to make further oral submissions to the Select Committee on Security and Justice on the Protected Disclosures Act amendment bill, which was published in December 2015. This act sets out the procedure that must be followed when public and private sector employees disclose information about unlawful behaviour in the workplace, and how those employees must be protected.
In September 2016 we made our initial submissions on the bill, confining our submissions to four main points:
- The definition of “business” and “worker”;
- The expanded definition of “occupational detriment”
- Section 9A which excludes civil and criminal liability for protected disclosures;
- The introduction of offences for making disclosures in bad faith;
Delegations from the Open Democracy Advice Centre (Odac) and the Congress of South African Trade Unions (Cosatu) also made submissions in September.
In our appearance before the select committee today, we expressed our concern that a number of our previous submissions were not considered in detail so as to evaluate whether the bill does indeed provide for the real and meaningful protection of whistleblowers.
Getting down to the details
Our latest submissions centre on the following points which we had made before:
a) The expanded definition of “occupational detriment”;
b) Section 9A which excludes civil and criminal liability for protected disclosures;
c) The introduction of offences for making disclosures in bad faith.
We submitted that the definition of occupational detriment and the new section 9A which deals with the exclusion of civil and criminal liability needs to be aligned, to ensure that there are no contradictions and anomalies in the legislation. We felt that the amendment of the definition of occupational detriment to include “being subjected to any civil claim for the alleged breach of a duty of confidentiality or a confidentiality agreement arising out of the disclosure of a criminal offence,” needs further refinement.
The section protects whistle-blowers from a civil claim where he or she breaches a duty of confidentiality only when disclosing a criminal offence – but there is no rational basis for restricting this section to the disclosure of a criminal offence and the wording should instead be “being subjected to any civil claim for the alleged breach of a duty of confidentiality or confidentiality agreement arising out of a protected disclosure.”
The section should be thus amended to ensure that those who make disclosures that are not criminal offences but general disclosures as defined in the act, will be protected.
No need for criminal sanctions in whistleblower law
As in our previous submissions, we felt that the offence for the disclosure of false information is likely to deter employees and workers from making protected disclosures since some information may appear to be legitimate but may, after investigation, prove to be false or unreliable.
This is why the employer must investigate the protected disclosure and revert to the employee on the veracity and possible action if proven to be true. In this regard, disclosures are not regarded as being protected if an employee does not make it in good faith. The introduction of an offence is therefore unnecessary and may serve to deter employees and workers from making disclosures.
Our colleagues at Odac are similarly concerned about this section and, with the Whistleblowing International Network (WIN), submitted that the grounds to prosecute someone who deliberately discloses false information exist already in South African law – such alternative remedies could come from within contract law, crimen injuria and civil law. Therefore the need to introduce a new offence is not necessary and is counterproductive.
“We submit that is it inconsistent to have a punitive criminal sanction within a framework of promotion of whistleblowing. It is particularly worrying that the inevitable ‘chilling effect’ will take effect within a context in which whistleblowers are currently discouraged,” said Odac.
Download our latest submissions.
Download Odac’s latest submissions.
Download the letter from the Whistleblowing International Network.
