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BACKGROUND

1.1 The South African Law Commission is currently involved in an investigation dealing with the Protected Disclosures Act 26 of 2000 (the PDA). The main focus of the investigation is the possibility of extending the ambit of this statute.

1.2 The PDA is derived from Part 5 of the Open Democracy Bill [B67-98], which contained a chapter on the protection of whistle blowers. When the Portfolio Committee on Justice and Constitutional Development reported to Parliament on the Bill it stated that while all parties were unanimously of the view that this legislation was vital for the fight against crime, it was not appropriate to include a chapter on the protection of whistle blowers in legislation dealing with the right of access to information. Parliament thus embarked on a process of redrafting the chapter into separate legislation, the Protected Disclosure Bill [B30-2000]. The Bill was presented to Parliament and later enacted as the PDA.

1.3 The objects of the PDA are threefold. It aims to:

• provide for procedures in terms of which an employee can, in a responsible manner, disclose information regarding improprieties by his or her employer;
• protect an employee, whether in the public or the private sector, from being subjected to an occupational detriment^[1] on account of having made a protected disclosure; and
• provide for certain remedies in connection with any occupational detriment suffered on account of having made a protected disclosure.

1.4 The PDA purports to protect employees from victimisation by employers, and is thus confined to the relationship between employer and employee in both the public and private sectors. The Committee considered the possibility of extending the ambit of the PDA beyond the purview of the employer/employee relationship. It also considered various other extentions of the PDA. However, it felt that that any extension beyond the current ambit of the PDA would require definition of the various types of victimisation to which persons who are not in an employer/employee relationship may be subjected as a result of making certain disclosures. This, the Committee said, would require comprehensive and comparative research.

1.5 Clause 63(1) of the Open Democracy Bill made provision for the exclusion of criminal and civil liability upon making a protected disclosure. The Committee was not in a position to conduct an audit of the effect that such a provision might have on existing laws, and was of the view that such an audit would be essential to prevent unintended consequences resulting from such a provision. It concluded that it was undesirable to include such a provision in the PDA, but acknowledged that this was arguable and suggested that it be investigated more fully.

1.6 In its report the Committee also considered the creation of a new cause of action for an employee who had been victimised by an employer in contravention of the PDA. It was suggested that such remedy could be aimed at the person who acted in contravention of the PDA or at both the employer and such person, and could also introduce the concept of punitive damages into our law. The Committee stated, however, that the creation of new remedies in the labour field should be approached with caution, and with a thorough knowledge and understanding of the existing remedies and procedures in this field.

1.7 The Committee was also of the view that it might well be appropriate to create offences in the PDA in terms of which an employer would be committing an offence by unlawfully subjecting an employee to an occupational detriment, and an employee would be committing an offence by making a false disclosure or by making a disclosure without knowing or believing it to be true.

1.8 In relation to all these concerns regarding the expansion of the ambit of the PDA, the Committee pointed out that the South African Law Commission would be best suited to undertake research on all the matters referred to above and accordingly requested the Minister for Justice and Constitutional Development to consider referring these matters to the Commission for investigation. The Minister subsequently approved the request and referred the investigation for inclusion in the Commission's programme on 20^th July 2000.

^[1] See paragraph 2.4 for a definition of the term 'occupational detriment'.