Publication: Business Day Issued: Date: 2003-01-13 Reporter: Wyndham Hartley Editor:

 Whistleblowers May Get Added Protection


Publication  Business Day
Date 2003-01-13


Wyndham Hartley

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Key legislation designed to protect employees in the public and private sectors from persecution if they blow the whistle on corruption could soon be expanded to include anyone who observes corrupt practices.

President Thabo Mbeki is expected to make the crackdown on corruption one of his priorities when he delivers the state of the nation address to Parliament early next month.

At present the Protected Disclosures Act provides protection for whistle-blowing employees only from retribution by their employers.

The idea is that a private- sector businessman, for example, who observes corruption in his dealings with other companies or with the state, should be protected from being unofficially blacklisted from those eligible for contracts or tenders if he blows the whistle.

The SA Law Commission has launched an investigation into the matter, and has called for public submissions to be made before February 28 through an online questionnaire.

The investigation was launched by Justice Minister Penuell Maduna who was asked by Parliament's justice committee to look into the matter.

At the time of passing the Protected Disclosures Act, the justice committee considered extending the act to cover more than employer/employee relations.

It decided however that it would need to identify and define the types of victimisation which could occur.

This would require comprehensive research, hence the request to Maduna.

Yesterday the justice committee chairman, African National Congress MP Johnny de Lange, welcomed the investigation. He asked all interested parties to "look at it carefully and make constructive submissions so that we can take the fight against crime still further".

The law commission is also considering changes which would make whistleblowers immune to criminal or civil liability when making protected disclosures.

Such a clause was initially included in the original Open Democracy Bill but was dropped because it was not clear what effect such a provision would have on other existing statutes.

"The committee was not in a position to conduct an audit of the effect which such a provision might have on existing laws and was of the view that such an audit would be essential to prevent unintended consequences," the commission said.

At present the act does not provide for a criminal offence if an employer victimises an employee for making a disclosure. Neither is it an offence for an employee to make a false disclosure without knowing or believing it to be true.

The justice committee thought it might be appropriate to create such offences. This aspect has therefore been included in the investigation by the law commission.

With acknowledgements to Wyndham Hartley and Business Day.