1. PDA Amendment Bill Submission to the Ad Hoc Committee by ODAC
September 2016

2. Specific Sections
September 2016

3. Section 1 We commend the extension of the definition of workers
Adjusting section 1(e) in line with new 9A
Section 1(e) qualifies the definition of a disclosure to exclude that a disclosure is not protected if an offence is committed. However, given the amendments intended by the Bill, this should reference its subjectivity to section 9A to avoid circularity.
Unintended amendments seem to have been made to section 1(e) due to 9A
- Section 9A refers to the exclusion of “criminal offences”. However, the amendments to section (e)(ii) only refers to “offences”. Normal rules of statutory interpretation must mean this is then to be read differently to “criminal offence”, but surely the intention was not to suggest a disclosure is no longer protected if a mere policy or labour offence is committed?

4. Section 2
While not a drafting issue, there should be an awareness campaign in relation to section 2(30, which renders provisions that attempt to subvert the PDA void (see further our Code of Good Practice).
Section 3B
We recommend to obligation to investigate return to the previous Bill proposal of 14 days, rather than 21
Section 3(B)(3) is problematic
There is no requirement to justify a delay in reporting back, which makes the provision for a 6 month delay in decision making worrying. This time should be limited further – perhaps to 3 months.
Section 3B(4) should include an obligation that an employee be informed “in writing”.

5. Substitution Section 6
Section 6(2) does acknowledge employers must take reasonable to alert employees of their policies
However, for clarity’s sake, 6(1) should incorporate considerations of where this may not have been done, possibly as such:
“6. (1) Any disclosure made in good faith—
(a) and substantially in accordance with any procedure [prescribed, or] authorised by the employee’s or worker’s employer for reporting or otherwise remedying the impropriety concerned if that has been made reasonably known to the employee or worker; or
(b) to the employer of the employee or worker, where there is no procedure as contemplated in paragraph (a), is a protected disclosure.

6. Section 9A We commend the insertion of this section
The requirement of attempting to show, or tend to show, that a “criminal offence” may be unintentionally restricting.
- ODAC would recommend considering the drafting contained in the Promotion of Access to Information Act , so that it could potentially read as:
Notwithstanding any other provision of this Act a person who makes a disclosure of information which  (a) reveals evidence of—
(i) a substantial contravention of, or failure to comply with the law; or  
(ii) an imminent and serious public safety or environmental risk: and

(b) the public interest in the disclosure of the record clearly outweighs the harm contemplated shall not be liable to any civil, criminal or disciplinary proceedings by reason of having made the disclosure if such disclosure is prohibited by any other law, oath, contract, practice or agreement requiring him or her to maintain confidentiality or otherwise restricting the disclosure of the information with respect to a matter. 

7. Section 9B This section should be excluded
The substantive purpose of the Act is the protection of whistleblowers
The section’s inclusion conflicts with the recommendations of the South African Law Reform Commission
It is not considered best practice: South Australia’s Whistleblowers Act, the United Kingdom PIDA and the New Zealand Protected Disclosures Act do not provide for criminal offences.
Criminal provision may have a “chilling effect”
- Particularly given it provides an offence for not “reasonably” having known the information they managed to obtain was false is a conjectural standard.
The envisioned harm is dealt with by other laws
- Within the Memorandum to the Act, the drafters themselves note the main motivation relates to a fear of “reputational damage”. Given the array of remedies available for reputational damage in existing civil law laws, renders its inclusion superfluous.

8. Section 10
The amendment of this section is an opportunity to include a revised Guide
ODAC presents as an example of such a Guide our Code of Good Practice on Whistleblowing

9. Lacuna
September 2016

10. Financial incentives
The provision of financial compensation outside of a labour reward should be included to encourage, and compensate, whistleblowers (research on this is available)
G20 states laws should include:
“Examples of best practices in support of this principle could include…[incentives] for whistleblowers to come forward…[and positive] reinforcements, including the possibility of financial rewards for whistleblowing”.
This would be consistent with the provision made in section 34B of the National Environmental Management Act e.g.
- “A court which imposes a fine for an offence in terms of this Act or a specific environmental management Act may order a sum of not more than one-fourth of the fine be paid to the person whose evidence led to the conviction or who assisted in bringing the offender to justice”.

11. Expansion Confidentiality
The range of recipients to whom a protected disclosure may be made is too narrow, but could include :
the  South African Human  Rights  Commission;
the  Commission  for  the  Promotion  and  Protection  of  the  Rights  of  Cultural, Religious and  Linguistic  Communities and Commission for Gender Equality;
the  Electoral  Commission;
the  Independent  Authority  to  Regulate  Broadcasting;
the  Speaker  of  Parliament;
the  Commissioner  of  Police;
an  ombudsman;
an  organ  of  state;
a  Labour  Inspectorate;  or
a  person  or  body  prescribed  for  purposes  of  such a section.”.
Confidentiality
There is no express obligation on organisations in terms of the PDA to protect a whistleblower’s identity. Confidentiality is not the same as anonymity. Confidentiality being preserved between the two parties as a proactive obligation mitigates against the detriments the PDA seeks to avoid. One potential proposal for drafting would be to include the breach of confidentiality, in certain circumstances, as an additional form of occupational detriment if consent has not been obtained.

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Main Recommendations
Subsection 3B(3) should be scrapped, or include both a time limit cap and restrictive grounds for when the subsection can be called upon.
Remove subsection 9B as an unjustifiable limitation on the rights to make a protected disclosure.
Consider inclusion of the Code of Good Practice, or similar, as a new guide on the PDA.
Address additional shortcomings in law not addressed currently by the Amendments, such as:
The expansion of bodies to which a protected disclosure may be made;
The inclusion of financial incentives for the protection of whistleblowers, and
The protection of confidentiality for the whistleblower.
Thank you for your time.
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