Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698748891017.pdf (Namibia)
REPUBLIC OF NAMIBIA NATIONAL ASSEMBLY WHISTLEBLOWER PROTECTION BILL (As read a First Time) (Introduced by the Minister of Justice) [B.

1 - 2017) 2 To 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

II.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.


BILL of a Whistleblower for making disclosures ofimproperconduct; of improper of disclosures to to provide conduct and protection of Protection Office; for the establishment provide establish procedures for the investigation whistleblowers; action; for persons against whom detrimental incidental matters.
to provide for investigation to provide for the review of certain decisions; of complaints of detrimental remedies action is taken; and to deal with to provide PART I PRELIMINARY Definitions Improper conduct Authorised Investigation Detrimental action persons agencies WHISTLEBLOWER PROTECTION OFFICE PART 2 and Deputy Commissioners of service of Commissioner and Deputy of Whistleblower Office and powers of Whistleblower Office from office of Commissioner of office and conditions of Commissioner Establishment Functions Appointment Tenure Commissioners Vacation of office by Commissioner Removal Acting Commissioner Functions of Commissioner Appointment Investigation Special Administrative Investigation Annual reports to employers investigators directives report and Deputy Commissioners of other staff members of Whistleblower Office officers and Deputy Commissioners and Deputy Commissioners WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE PART 3 of Committee Establishment Object of Committee Functions Meetings Disclosure of interest Other matters to be prescribed and powers of Committee and procedure PART 4 DESIGNATED EMPLOYERS 26.
27.

Designation Chief executive of designated of employers employer to establish code of conduct 2S.
executive Chief procedures of designated employer to establish internal disclosure 3 PART 5 DISCLOSURE OF IMPROPER CONDUCT Persons who may make disclosures Disclosure of improper conduct Manner of making disclosure Reduction of disclosure to writing Action by authorised person Submission of copy of disclosure to Commissioner Anonymous Public disclosures disclosures PART 6 INVESTIGATION OF DISCLOSURES OF IMPROPER CONDUCT Disclosures relating to employment Disclosures made to other authorised persons Action by Commissioner Investigation Application for court assistance Report to Commissioner Action by Commissioner of disclosures by Commissioner after reference PART 7 WHISTLEBLOWER PROTECTION information that are protected Disclosures Whistleblower protection Protection of confidential Immunity from civil or criminal proceedings Protection from detrimental Protection under Witness Protection Act Void contractual terms Legal assistance Termination of protection action PARTS COMPLAINTS OF DETRIMENTAL ACTION Complaints of detrimental Commissioner's Investigation Commissioner's action decision whether action of detrimental decision after investigation to investigate WHISTLEBLOWER PROTECTION REVIEW TRIBUNAL PART 9 of Tribunal Establishment Secretarial work of Tribunal Seat of Tribunal and jurisdiction Costs 29.
30.

31.

32.

33.

34.

35.

36.

37.

3S.

39.

40.

41.

42.

43.

44.

45.

46.

47.

4S.

 80.
Contempt of Tribunal Rules of Tribunal Expenses of Tribunal Appeals from Tribunal PART 10 PROCEEDINGS BEFORE TRIBUNAL AND REMEDIES Proceedings of Tribunal Review proceedings Parties in matters referred by Commissioner Remedies for detrimental Powers of Tribunal Disciplinary action against person taking detrimental Personal Additional Relocation from place of employment action to grant remedies for employee whistleblowers remedies liability action PART 11 GENERAL of section 76 of Prevention of Organised Crime Act, 2004 Reward for making disclosure Reward on recovery of money Amendment Amendment of section 84 of Labour Act, 2007 Regulations Guidelines and information Short title and commencement BE IT ENACTED as passed by the Parliament, and assented to by the President, of the Republic of Namibia as follows: Definitions PART I PRELIMINARY 1.
In this Act, unless the context indicates otherwise- "authorised person" means any of the persons specified in section 3 to whom a disclosure can be made; "chief executive" means the person who, employer or a part of the employer's position by whatever title or designation he or she is called; in Namibia, is the administrative organisation or who occupies head of an any other similar "Commissioner" means the Commissioner terms of section 8( 1); for Whistleblower Protection appointed in "Committee" means the Whistleblower section 20; Protection Advisory Committee established by or any person related to or associated with the "complainant" means a whistleblower whistleblower who makes a complaint under section 53 of having been, being or likely 5 to be subjected improper conduct; to detrimental action in retaliation for having made a disclosure of "confidential information" includes - (a) information whereabouts about of - the identity, occupation, residential address, work address or (i) (ii) a whistleblower whistleblower; and or a person related to or associated with the a person improper conduct; against whom a whistleblower has made a disclosure of (b) (c) information disclosed by a whistleblower; and information that, if disclosed, may cause detriment to any person; "Deputy Commissioner" means a Deputy Commissioner appointed under section 8(2); "designated employer" means an employer designated as such under section 26; "detrimental action" means any of the actions described in section 5; "disciplinary an omission which constitutes or at a place of employment circulars of an employment action" means any action taken as a result of the commission of an act or in a public body or private body as provided by law or in a code of conduct or ethics or a breach of discipline contract; "disclosure" means - (a) (b) the revealing of information which is not known to the person receiving it; or in a case where the information bringing the information to his or her attention; is already known to the person receiving it, "employee" Labour Act, 2007; and "employer" have the same meanings given to them by section 1 of the and integrity officer" means a person designated as such in terms of section "ethics 28(2); "improper conduct" means any of the types of conduct described in section 2; "investigation agency" means any of the agencies listed in section 4; "investigator" means a person appointed 15 or as a special investigator in terms of section 16; as an investigation officer in terms of section "Labour Act, 2007" means the Labour Act(Act No.
11 of2007); "Labour Commissioner" means the Labour Commissioner Labour Act, 2007; referred to in section 1 of the 6 "Minister" means the Minister responsible for justice; "Ministry" means the Ministry responsible justice; for the administration of matters relating to "Permanent Secretary" means the Permanent Secretary of the Ministry; "prescribed" means prescribed by regulation made under section 78; "Prevention Act (Act No.
29 of2004); of Organised Crime Act, 2004" means the Prevention of Organised Crime "public body" includes - (a) (b) (c) (d) any office, ministry or agency as defined in the Public Services Act; any local authority council as defined in the Local Authorities Act, 1992 (Act No.

23 of 1992); any regional council as defined in the Regional Councils Act, 1992 (Act No.
22 of 1992); any other functionary or institution exercising a power or performing in terms of the Namibian Constitution a public function in terms of any law; a function public power or performing orexercisinga "Public Service Act, 1995" means the Public Service Act(Act No.
13 of 1995); "registered as such under Chapter 6 of the Labour Act, 2007; organisation" means an employers' employers' organisation that is registered "registered of the Labour Act, 2007; trade union" means a trade union that is registered as such under Chapter 6 "staff member of the Whistleblower Office" means a Deputy Commissioner in terms of section 14; staff member of the Whistleblower Office appointed and any "this Act", this Act; includes any regulation, code of conduct or guideline made or issued under "Tribunal" means the Whistleblower 57; Protection Review Tribunal established by section "whistleblower" terms of this Act; and means any person who makes a disclosure of improper conduct in "Whistleblower section 6.
Office" means the Whistleblower Protection Office established by "Witness 2017); Protection Act, 2017" means the Witness Protection Act, 2017 (Act No.

of Improper conduct 2.
(1) For the purposes of this Act, improper conduct is conduct which if disclosed and proved shows or tends to show that - 7 a criminal offence has been committed, likely to be committed; is about to be committed or is a person has not complied with a law or is in the process of breaking on that a law or is likely to break a law which imposes an obligation person; a miscarriage of justice has occurred, is occurring or is likely to occur; a disciplinary is likely to be committed; offence has been committed, is about to be committed or in any institution, organisation is likely to be waste, misappropriation in such a manner to be affected; that or entity there has been, or mismanagement there is or there of resources is being or is likely the public interest has been, the environment degraded; has been degraded, is being degraded or is likely to be the health or safety of an individual or a community or been endangered or is likely to be endangered; is endangered, has showing information falling within paragraphs deliberately concealed.
or tending (a) to (g) has been, to show that any of the matters is being or is likely to be (a) (b) (c) (d) (e) (f) (g) (h) (2) For purposes of subsection or an omission which constitutes body or at a place of employment ethics or circulars of an employment contract.
(1)( d) "discipl a breach of discipline inary offence" means an act in a public body or a private as provided for by law or in a code of conduct or Authorised persons 3. are authorised (1) persons For the purposes of this Act, the following persons or entities, to whom a disclosure of improper conduct may be made - (a) (b) (c) (d) the Commissioner has been designated or a staff member of the Whistleblower Office who by the Commissioner to receive disclosures; in the case of an employee, member of the employer who has been designated receive disclosures; the employee's supervisor or other senior to by that employer in the case ofa designated employer, by that employer the person who has been designated as the ethics and integrity officer of the employer; or a person, subsection institution or entity declared by the Minister by notice under (2) to be an authorised person.
8 (2) recommendation office, For of the purposes of the Commissioner, subsection by notice (1)( d), in the Gazelle declare the Minister may, on the any person, institution or entity to be an authorised person.

(3) The Minister, after consultation with the Committee, must issue one or more codes of conduct of their functions or exercise of powers under this Act.
regulating the conduct of authorised persons in the performance (4) The Minister may issue different codes of conduct in respect of different categories of authorised persons.

(5) (3) in the Gazelle.

The Minister must publish the code ofconduct referred to in subsection (6) for any contravention N$IO 000 or imprisonment and such imprisonment.
A code of conduct issued under subsection thereof or failure to comply therewith for a period not exceeding (3) may prescribe penalties a fine of 12 months, or to both such fine not exceeding Investigation agencies 4. of this Act- (I) The following entities are investigation agencies for purposes (a) (b) (c) (d) (e) (f) (g) (h) (2) recommendation the Ombudsman referred to in Article 89 of the Namibian Constitution; the Anti-Corruption Namibian Constitution; Commission referred to in Article 94A of the the Namibian Police Force referred to in Article 118 of the Namibian Constitution; the Namibian Central of the Namibian Constitution; Intelligence Service referred to in Article 120A the Namibian Correctional Namibian Constitution; Service referred to in Article 121 of the the department ministry responsible for immigration matters; or directorate dealing with immigration matters in the the office of the Commissioner and Excise referred to in section 2( I) of the Customs and Excise Act, 1998 (Act No.
20 of 1998); and for Customs local authority or regional councilor any office, ministry, agency, other body set up by any law including a unit, section, division, department councilor of such office, ministry, functions by other body, conferred with investigation and which any law or having investigation the Minister to be an investigation has declared agency.
by a notice under and enforcement and enforcement local authority or regional subsection agency, powers (2) the For the of the Commissioner, may by notice in the Gazelle declare any office, the Minister subsection purposes (I)(h), on of 9 ministry, agency, be an investigation local authority or regional councilor other body set up by any law to agency.

Detrimental action 5.


(1) subjected to detrimental of the purposes For action if that person - this Act, a person is considered to be (a) (b) is subjected being an employee, or any action causing personal harm or injury or loss or damage to property or any interference with his or her lawful employment by the employer or a fellow employee or by any other person or an institution; or to intimidation, harassment is subjected not being an employee, harassment damage livelihood by any person or an institution.
to property or any action causing personal harm or injury or loss or or or any interference with his or her business to discrimination, intimidation, (2) lawful employment For the purposes includes - of subsection (l)(a), interference with a person's dismissal; suspension; redundancy; demotion; refusal of transfer or promotion; transfer against his or her will; alteration ofworking conditions or retirement to his or her disadvantage; discriminatory employment, or adverse career, profession, treatment trade; in relation to that person's taking of disciplinary action; or a threat to take any of the actions referred to in paragraphs (a) to (i).
(a) (b) (c) (d) (e) (f) (g) (h) (i) 0) (3) For the purposes of this Act, detrimental the whistleblower action or or a person related to or is prohibited actionable associated with the whistleblower.

if the action is taken against WHISTLEBLOWER PROTECTION OFFICE PART 2 Establishment of Whistle blower Office 6.

(1) There is established impartial functions office to be known as the Whistleblower and duties as provided for in this Act or in any other law.
in the public service, an independent and Protection Office to perform the 10 (2) (a) (b) (c) (3) (4) contemplated (5) The Whistleblower Office consists of - the Commissioner; one or more Deputy Commissioners; and other staff mem bers appointed terms of the law governing secondments in the public service.
members in terms of section in in the public service from staff 14 or seconded The Public Service Act, 1995 applies and the other staff members of the Whistleblower Office, except Commissioner extent as provided otherwise by this Act or as is inconsistent with this Act.

to the Commissioner, Deputy to the The Whistleblower Office is an office in the publ ic service as in the Public Service Act, 1995.
The Public Service Act, 1995 applies and the other Commissioners provided otherwise by this Act or as is inconsistent with this Act.

staff members of the Office, to the Commissioner, except to the extent Deputy as (6) For the purposes of the State Finance Act, 1991 (Act No.

31 of 1991), the Permanent Secretary is the accounting officer of the Whistleblower Office.

Functions and powers ofWhistIeblower Office 7.
(I) The Whistleblower Office, under the overall direction entrusted to it by or under this Act of the Commissioner, must perform the functions including the following - and exercise supervision and the powers (a) (b) (c) (d) (e) (t) (g) investigation consideration of appropriate of disclosures of improper conduct made under thisAct and of the validity of such disclosures action to be taken in relation to such disclosures; and the determination consideration Act and to take appropriate of reports and other matters action; referred to it in terms of this action, and where appropriate investigation reference of complaints of complaints of detrimental to the Tribunal for remedial action; appearing relating to complaints before the Tribunal as a public interest party in proceedings of detrimental action before the Tribunal; initiating committed this Act; and laying criminal charges against or is alleged to have committed any person who has offence under a criminal issuing temporary prohibition such notices before the Tribunal as contemplated notices and applying for confirmation of in section 46; establishing of this Act and the necessity for disclosures programmes to educate the public concerning the provisions of improper conduct; II to employers, authorised persons, investigation involved in the implementation of this Act to ensure effective implementation of this Act; giving policy directions agencies on best practices and other persons generally overseeing the effective implementation of this Act; any powers exercising any or imposed on it by this Act, and any powers expedient to the achievement for or incidental performing and functions that are necessary conferred or of its objects; and exercising prescribed.
any powers and performing any functions as may be (h) (i) 0) (k) (2) When performing the investigative functions of the Whistleblower this Act, authorised the Commissioner, thereto in writing by the Commissioner Office under or an investigator such necessary changes as may be required by context, immunities 1990 (Act No.7 of 1990) and the provisions of that section do apply to an investigation under by the Ombudsman under that Act.
a staff member of the Whistleblower Office to the same powers, privileges and by section 4 of the Ombudsman Act, this Act as if it were an inquiry or investigation as those conferred on the Ombudsman has, subject conducted (3) All other matters in connection with the Whistleblower Office or arising from this Act may be prescribed.

Appointment of Commissioner and Deputy Commissioners 8.
(1) through a resolution, must appoint person whom the President considers The President, with the approval of the National Assembly as Commissioner for Whistleblower Protection, a suitable and who - is of good character and of high integrity; and possesses years relevant sector.
an appropriate qualification in law and has not legal experience acquired in either less than 10 the public or private (a) (b) (2) The President, with the approval as Deputy Commissioner of the National Assembly or Deputy Commissioners, through a one or resolution, may appoint more persons whom the President considers suitable and who - (a) (b) are of good character and of high integrity; and possess qualifications and experience as may be prescribed.
the appointment Whenever the need for (3) Deputy Commissioner the Minister must submit arises, name or names of persons whom he or she considers the National Assembly must, persons President it considers for appointment.
suitable for appointment through a resolution, that approve and submit of the Commissioner to the National Assembly, suitable or a the for appointment, and the name or names of the the name or names to the (4) Commissioner A person is not eligible if that person - to be appointed as Commissioner or Deputy 12 (a) (b) (c) (d) (e) is a member of the National Assembly or National Council; is a member of a regional councilor a local authority council; is not a Namibian citizen or lawfully admitted to Namibia for permanent residence; is an unrehabilitated insolvent; or has, during the period of 10 years preceding been convicted of - the date of appointment, (i) (ii) fraud, theft, any other offence involving dishonesty; forgery or uttering a forged document, or perjury or any other offence for which a sentence of imprisonment without the option of a fine has been imposed.
Term of office and conditions of service of Commissioner and Deputy Commissioners 9.

(1) and Deputy Commissioners on a full-time basis for a period of five years and may be reappointed their terms of office.

The Commissioner (2) Commissioners responsible conditions The are determined of service the Commissioner by the President with the concurrence of for finance and the approval of the National Assembly.
are appointed upon expiry of and Deputy of the Minister (3) (a) (b) (c) (4) The Commissioner or a Deputy Commissioner may not- engage in the day to day management of any business or occupation; take part in the management of the affairs of any political party; or be a salaried employee of any person or organisation.
The provisions of the Public Service Act in relation to requirements tenure of office, conditions for appointment, office do not apply to the Commissioner are inconsistent with the provisions of this Act.
of service suspension and a Deputy Commissioner and dismissal from in so far as they (5) As soon as practicable at such and a Deputy Commissioner must of their assets and including the nature and extent of any interest which they may have in any after the Commissioner setting forth particulars their appointment, and thereafter a statement times as the Minister may require, each furnish to the Minister liabilities, business or occupation or in any company or close corporation.
Vacation of office by Commissioner and Deputy Commissioners 10. if he or she - The office of the Commissioner vacant or a Deputy Commissioner becomes (a) resigns from office by written notice to the President; 13 (b) (c) becomes subject to a disqualification referred to in section 8(3); or is removed from office under section 11.

Removal from office of Commissioner and Deputy Commissioners 11.
(I) The Commissioner or a Deputy Commissioner may be removed from office if he or she - (a) (b) (c) (d) has failed to comply with a condition of his or her appointment; is unable to perform the functions mental or physical infirmity; of his or her office by reason of fails to perform efficiently the duties of his or her office; or has been guilty of misconduct.
If the question of the removal or a (2) Justice who, after Deputy Commissioner consultation with the Judicial Service Commission under Article 85 of the Namibian Constitution, must within 30 days appoint a board to inquire into the matter and submit a report and recommendations the President must notify the Chief from office of the Commissioner to the President.
established arises, The board consists of - a chairperson, being a person who - (i) (ii) has held office as judge of the Supreme Court or High Court of Namibia; or is qualified to be appointed the High COUli of Namibia; as judge of the Supreme Court or and two other members who are of good character and integrity.
(3) (a) (b) (4) from office of the Commissioner If the question of removal is referred to the board, Commissioner that he or she may determine, suspend the Commissioner as the case may be, from exercising the functions of his or her office pending inquiry by the the board, but the suspension Commissioner should not be removed from office.
lapses if the board recommends the President may, subject or Deputy Commissioner to the President that or a Deputy to such conditions or a Deputy Commissioner, (5) The board must the board may make conforming inquire into the matter to the rules of natural in accordance with such rules as justice.

(6) its report and recommendations The board must within 30 days after conclusion to the President.
of the inquiry submit (7) If the President, on receipt of the board's or Deputy Commissioner, the President must communicate the Commissioner from office, finds that removed therefor by message National Assembly within 14 days after to the National Assem bly within 14 days after is then in session or, if the National Assembly its next session starts.
report and recommendations, as the case may be, should be finding and the reasons the finding if the is not then in session, that 14 (8) The President must remove the Commissioner or Deputy Commissioner from office upon adoption removal person's from office.

by the National Assembly of a resolution calling for that Acting Commissioner 12.
(I) Ifthe office of the Commissioner is vacant or the Commissioner is absent from duty or unable for any reason to perform the functions of his or her office a Deputy Commissioner must act as Commissioner, the Minister, appoint another but the President may, after consulting suitable person to act temporarily as Commissioner.
(2) If the offices of both the Commissioner and Deputy Commissioner vacant or if both the Commissioner for any reason to perform the functions of their offices, the Minister Commissioner during such vacancy or temporary to section 8, must appoint and subject absence.

and Deputy Commissioner the President, another suitable person to act as are are absent or unable after consulting (3) The President must as soon as possible after making an appointment under or in terms of subsection appointment.
(I) or (2), inform the National Assembly about the (4) A person acting as Commissioner in terms of subsection (I) or (2) may not act for a period of more than 12 months.

(5) A person appointed while the office of the is entitled to the salary attached to that office for the period that as acting Commissioner Commissioner he or she so acts.
is vacant Functions of Commissioner and Deputy Commissioners (I) The Commissioner is the head of the Whistleblower to the provisions of this Act, the Namibian Constitution Office and any other law- responsible is Whistleblower Office; and for the direction, control and management of the must perform all the functions conferred on, the Commissioner assigned to, and exercise by or under this Act or any other all the powers law.
on the Deputy Commissioner A Deputy Commissioner the functions or as may be assigned to him or her by the Commissioner.

conferred performs by this Act such assistance out of the powers, Commissioner All public bodies, as may be reasonably and where appropriate render or carrying and duties conferred upon, assigned to or imposed upon the required in the exercise, performance other persons, must functions or any staff member of the Whistleblower Office by or under this Act.
between report be agreed Committee, the performance subsection the Commissioner The Commissioner must, at such times or and the Committee generally on any matter of time as may intervals of the the request or at relating to or arising from of functions or exercise of powers of the Whistleblower Office under to the Committee (I), or under any other provision of this Act.

13. and, subject (a) (b) (2) (3) (4) (2) (a) (b) (4) (a) (b) (5) Appointment of other staff members of Whistle blower Office 15 14.
The other staff members of the Whistleblower section 6(2)(c) as may be required for the proper performance Whistleblower Office are appointed in terms of the Public Service Act.

Office referred to in of the functions of the Investigation officers 15.

(I) The Commissioner must, referred to in section 14, appoint persons this Act.
to be investigating from among the staff members officers for the purposes of An investigating officer - has such powers, Act or as may be delegated or assigned to the investigating the Commissioner; and duties as may be provided for by this officer by functions and exercise must such duties may be specified Commissioner superior in compliance such powers, perform such functions with the directions or orally or in writing by the Commissioner, and discharge as instructions Deputy or any other staff member of the Whistleblower Office to him or her in rank.
(3) The Commissioner must issue an identification member appointed as an investigating officer in terms of subsection card to every staff (1).

The identification card referred to in subsection (3)- must be signed by the Commissioner; and is prima facie evidence of the appointment of the person concerned.

An investigating officer must show his or her identification card to any any power or perform any person in relation to whom he or she may seek to exercise function or duty under this Act.
Special investigators (1) 16. may appoint investigator to, a disclosure or a detrimental The Commissioner, a person who has expert knowledge any matter to investigate the with the Minister, field to be a special forming the subject of, arising out of or relating in a particular approval of action, or any aspect thereof, specified - (a) (b) in the instrument appointing the special investigator; or in a written notice given to the special investigator by the Commissioner.
(2) A special between the Commissioner investigator and the person and must perform his or her functions on a temporary is appointed basis as agreed - (a) (b) subject to the control and direction of the Commissioner; and on the terms investigator may agree.

and conditions as the Commissioner and the special 16 (3) appointed as special The Commissioner investigator must issue in terms of subsection an identification (1).
card to a person The identification card referred to in subsection (3) - must be signed by the Commissioner; and is prima facie evidence of the appointment of the person concerned.

(4) (a) (b) (5) A special investigator must show his or her identification card to any any power or perform any person in relation to whom he or she may seek to exercise function or duty under this Act.
Administrative directives of with the approval inconsistent with this Act or and responsibilities not training, The Commissioner, directives, control, 17. administrative on the general Whistleblower Office, and for such other matters for the good administration of power or neglect functioning of the Whistleblower Office.
of duty, and generally duties for ensuring as may be necessary of the Whistleblower Office or the prevention the Minister, may issue the Public Service Act, of the of staff members or expedient of the abuse and effective the efficient Investigation reports to employers 18. that arises out of an investigation If the Commissioner considers he or she may report any to the Minister or for the sector or the public body that was the subject of the it necessary, carried out under this Act responsible or, if the matter relates to a private sector employer, to its board or governing including, but not limited to, when the Commissioner is matter the Minister investigation body and to its chief executive, of the opinion that - action has not been taken within a reasonable more of his or her recommendations time in respect of one or and made under section 39(3)(a); a situation that has come to his or her attention in the course of carrying risk of a out his or her duties substantial to the life, health or safety of persons, or to the environment.
and specific danger that constitutes an imminent exists (a) (b) Annual report (I) 19. of each year, submit Office during the previous year.
The Commissioner must, within three months after 31 March to the Committee a report on the activities of the Whistleblower (2) report must set out - Without derogating from the generality of subsection (1), the annual (a) (b) the number of general inquiries relating to this Act; the number of disclosures to detrimental those that were not acted on; and complaints made in relation action, and the number of those that were acted on and received 17 the number of investigations commenced under this Act; the number of recommendations their status; that the Commissioner has made and in relation to complaints made in relation to detrimental number of referrals to the Tribunal and decisions action, to dismiss them; the there are any systemic problems that give rise to improper whether conduct; any considers recommendations appropriate; for improvement that the Commissioner and (c) (d) (e) (f) (g) (h) any other matter that the Commissioner considers necessary.
(3) report Despite subsection (1), referring to and commenting special powers and duties under this Act or importance submission of the annual the Commissioner may, at any time, prepare a on any matter within the scope of his or her is of such urgency the time provided for the the matter if, in his or her opinion, that a report on it should not be deferred until report and submit the report to the Committee.
The chairperson (4) submitted a report (1) or (3) or within such extended the Minister may allow but which period must not exceed 30 days, consider make such comments Minister.
of the Committee must, within 14 days of receipt of period as the report, to the fit and refer the report to it under subsection and recommendations as it considers (5) The Minister must submit the report referred to in subsection National Assembly within 30 days after receipt not then in session, within 30 days after commencement thereof or, if the National Assembly of its first ensuing session.

(4) to the is WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE PART 3 Establishment of Committee 20.
Whistleblower (1) established Protection Advisory Committee.
There is a committee to be known as the (2) (a) (b) (c) (d) (e) The Committee consists of - the Permanent Secretary who is the chairperson of the Committee; the Permanent Secretary of the Office of the Prime Minister; the Ombudsman referred to in Article 89 of the Namibian Constitution; of the Anti-Corruption the Director-General Article 94A of the Namibian Constitution; Commission referred to in the Inspector-General Namibian Constitution; of Pol ice referred to in Article 119 of the 18 (f) (g) (h) (i) the Director of the Namibia Central section 3(b) of the Namibia Central No.
10 of 1997); Intelligence Service referred to in Intelligence Service Act, 1997 (Act the Environmental to in section Environmental Management Act, 2007 (Act No.7 of 2007); Commissioner referred I of the one person appointed by the Minister organisations; by registered employers' from a list of persons nominated and one person appointed by registered trade unions.
by the Minister from a list of persons nominated (3) The Commissioner is the secretary of the Committee of the Committee and he or she and other must keep or cause to be kept minutes of the meetings records as the Committee may require.

(4) A member of the Committee to (g) ifhe or she no longer holds the office or position which entitled to in subsection referred (2)(a) ceases to be a member him or her to be a member of the Committee.
(5) A member of the Committee referred to in subsection (2)(h) or (i) holds at the expiry office for a period offive years but he or she is illegible for reappointment of his or her term of office.
(6) A member of the Committee appointed in terms of subsection (I)(h) or (i) must vacate his or her office if the member- (a) (b) (c) (d) (7) is convicted of an offence and sentenced option of a fine; to imprisonment without the resigns his or her office by giving the Minister one month's writing of his or her intention to resign; notice in has been absent without for leave of the Committee; three or consecutive meetings of the Committee is removed from office by the Minister under subsection (7).
The Minister may at any time, after affording the member an opportunity to make representations from office - remove a member appointed in terms of subsection (h) or (i) on the ground of misconduct; on account of continued ill-health; on account of efficiently; or incapacity to perform the duties of his or her office for any other reason that the Minister considers good and sufficient.
(a) (b) (c) (d) (8) or (i) who is not allocated by Parliament A member of the Committee in full (1 )(h) time service of the State is entitled to be paid out of the funds for the purposes of the Whistleblower Office, such remuneration in terms of subsection appointed 19 and allowances responsible costs or expenditure as may be determined for finance but, any member of the Committee may be reimbursed by the Minister with the approval of the Minister for any that are not recoverable by him or her from any other source.
Object of Committee 21.

(a) (b) The main object of the Committee is to advise- the Minister protection in Namibia; and on high level policy matters relating to whistleblower the Whistleblower Office generally performance of its functions under this Act.

on the exercise of its powers and Functions and powers of Committee 22.
Committee mentioned (I) Without derogating from the generality of the object of the in section 21, the functions of the Committee are to- (a) (b) (c) (d) (2) subcommittees make recommendations including amendments issuing of guidelines to the Minister regarding to this Act and the making of regulations under sections 78 and 79 respectively; policy matters, and advise the Minister on the formulation in accordance with the current policies practices; of whistle blower protection best law and international give advice to the Whistleblower Office generally on the performance of its functions its in terms of this Act; and and exercise of powers perform any other functions other law.
as may be conferred by this Act or any The Committee consisting of members of the Committee establish may one or more subcommittee or to carry out any of its functions.

Meetings and procedure (1) 23.

The first meeting of the Committee must be held at such time and place as the Minister may determine, are held at such times and places as the Committee may determine, but the Committee must hold at least and thereafter, meetings of the Committee three meetings every year.
(2) Committee, The members of the Committee must, at elect from among themselves a vice-chairperson the first meeting of the Committee.

of the (3) (a) (b) The chairperson of the Committee- may convene that considers a special meeting it is necessary to hold such special meeting; or of the Committee when he or she must convene a special meeting of the Committee when the Minister or at least three members the chairperson to do so.
request (5) (6) 20 (4) The chairperson, or in his or her absence, absence of both the chairperson present have elected must preside at a meeting of the Committee.

and the vice-chairperson, the vice-chairperson or in the such member as the members Five members form a quorum at a meeting of the Committee.
A decision of a majority of the members present at a meeting of the in the event of an equality of votes, Committee the person presiding has a casting vote in addition to his or her deliberative is the decision of the Committee and, vote.
(7) A decision of the Committee, the authority of such a decision, may not be rendered on the invalid by reason only of a vacancy Committee of the to sit as a member if such decision was taken by the Committee requisite majority of the members of the Committee who were present at the time and entitled to vote.
or the fact did so sit when the decision was taken, that a person who is not entitled or an act performed under (8) The Committee may permit a staff member of the Whistleblower Office at any meeting to attend as in the opinion of the Committee of the Committee to be considered whose input may be necessary on any matter and to take part in such discussions relate to such matter, but that staff member is not entitled to vote.
The chairperson (9) proceedings as soon as possible after a meeting of the Committee.

of its meetings, of the Committee must cause a record to be kept of the and must cause that record to be submitted to the Minister (10) The Committee may make rules relating to procedure at its meetings and at meetings of subcommittees established under section 22(2).

Disclosure of interest 24.


(I) of the Committee who has a personal or financial by the Committee must disclose from participating the Committee in the deliberations decides otherwise.
A mem ber of the Comm ittee or a person present at a meeting for consideration interest and is disqualified in respect of that matter unless in writing the nature of that of the Committee in a matter interest (2) A member of the Committee may not personally or through another person transact any business or trade with the Whistleblower Office.

(3) A member (I) or (2) commits subsection exceeding N$SO 000 or to imprisonment such fine and such imprisonment.
an offence or a person who contravenes to comply with to a fine not to a period not exceeding five years, or to both and is liable on conviction fails or Other matters to be prescribed 25.

The Minister may prescribe other matters relating to the Committee that may be necessary to ensure that the objectives of this Act are achieved.

21 PART 4 DESIGNATED EMPLOYERS Designation of employers 26.
(I) consultation with the Committee, classes of employers The Minister may, by notice to whom the provisions of this Act apply.

to subsection subject in the Gazette designate (2) and employers after or (2) Before making a designation by notice in the Gazette and in such other manner circumstances the interests of employers make representations the Minister must that the Minister having regard to the that represent in the prescribed manner, to the Minister and to the Committee on the proposed designation.
invite organisations in Namibia or institutions to, and of employees under subsection appropriate, considers (1), (3) (a) (b) A notice referred to in subsection (1) must - identify the employers or classes of employers to designate intends to whom the provisions of this Act apply; and that the Minister as employers information which the Minister considers necessary contain such other to ensure that both the affected employers the organisations informed representations or institutions representing on the proposed designation.
and employees as well as them are able to make In deciding whether or classes of employers (4) to subsection (1), the Minister must consider any representations made pursuant during consultations (2) and the views by the Committee to designate employers expressed to subsection (I), and must, without any limitation, take into consideration the pursuant to subsection pursuant following factors: (a) (b) (c) (d) (e) the size of the employer's organisation; the number of employee's work that the employees employed by the employer and the nature of perform; the nature of the business activity or trade that the employer in or service that the employer is rendering: is engaging the likelihood that acts of improper the course of or within the employer's conduct mayor may not occur business activity or trade; and in any other decision.
factor that the Minister considers necessary to make a Chief executive of designated employer to establish code of conduct 27.

(I) The chief executive of every designated that is a employer to that public body.

public body must establish a code of conduct applicable (2) The code of conduct established by a chief executive of a public body is an office, a ministry or an agency as defined in the Public Services Act must be to that that consistent with any code of conduct established Act.
by the Prime Minister pursuant 22 (3) The chief executive of every designated employer that forms part of the private sector must establish a code of conduct applicable to that employer.

(4) every employee The codes of conduct established employed by the relevant designated under subsection employer.

(1) or (3) apply to Chief executive of designated employer to establish internal disclosure procedures 28.
(1) The establish internal procedures employed by that designated executive chief employer must to manage disclosures made under this Act by employees employer.
designated every of (2) The chief executive of every designated to be known as the ethics and integrity officer who is responsible a for in accordance with the duties and powers of an ethics and of senior officer receiving and dealing with, integrity officer set out in a code of conduct established improper employed by that designated under section 27, disclosures conduct made by employees employer must designate employer.
(3) (a) (b) (c) The chief executive of every designated employer must - to any other law and to the principles of procedural the identity of persons justice, protect including subject natural process, persons alleged to be responsible that of persons making disclosures, witnesses for the improper fairness and involved in the disclosure and conduct; to ensure establish collected in relation to disclosures procedures confidentiality the of improper conduct; and of information if improper section 30, comply with section 37. conduct is found as a result of a disclosure made under (4) A person who contravenes or fails to comply with any provision of this section commits an offence and is liable on conviction to a fine not exceeding N$7S 000 15 years or to both such fine and such or to imprisonment imprisonment.
for a period not exceeding PARTS DISCLOSURE OF IMPROPER CONDUCT Persons who may make disclosures 29. person by - (a) (b) (c) A disclosure of improper conduct may be made to an authorised an employee employer; in the public or private sector in respect of his or her an employee in respect of another employee; or any person in respect of another person or a public or private body or institution.

23 Disclosure of improper conduct 30.
(1) A disclosure of improper conduct may be made- (a) by an employee - (i) (ii) in the case of a designated employer, and integrity officer of the designated to the designated employer; or ethics in the case of any other employer, or a person designated by the employer to the employee's supervisor to receive disclosures, in respect of his or her employer or another employee to that employee's the conduct complained place of employment; of pertains in cases where or employment to any authorised by an employee, than the persons referred to in paragraph (a), in respect of his or her employer or another employee to the employee's in cases where the conduct or place of employment; employment complained of pertains person other or by any person, to in paragraph (a), the scope of the employment to an authorised referred in respect of any other conduct which falls outside person other than the persons relationship.
(b) (c) (2) A disclosure of improper conduct concerning the Commissioner, a staff member of the Whistleblower Office or the Whistleblower Office may be made to the Ombudsman the powers, duties and protections in relation to that disclosure, of Namibia who has, of the Commissioner under this Act.
(3) (a) (b) (c) (d) A disclosure under subsection (1) or (2) may be made - even though the person making the disclosure particular person to whom the disclosure relates; is not able to identify a even though the improper conduct occurred before the commencement of this Act; in respect of information acquired by him or her while he or she was an officer or employee of a public body or an officer or employee of a private body; or of any improper or employee body.
conduct of any person while that person was an officer of a private of a public body or an officer or employee (4) Despite any other law to the contrary, a disclosure of improper conduct may be protected only if- (a) (b) the disclosure disclosed; is made in good faith in relation to the information the whistleblower disclosed substantially true; and has reasonable cause to believe that the information and any allegation of improper conduct contained in it are 24 (c) (5) (a) (b) the disclosure is made to an authorised person.
A person who - intentionally information makes contained a disclosure in the disclosure knowing or believing is false or untrue; or that the threats, another or any other coercive means uses force, coercion, against from, or influence that person to refrain from making a disclosure which would otherwise be protected under this Act, person with intend to prevent that person intimidation commits to imprisonment imprisonment.
an offence and is liable to on conviction for a period not exceeding a fine not exceeding N$] 00 000 20 years, or to both such fine and such (6) of an offence under person that whether made (hereafter application the instructions loss.
patrimonial Where a person is convicted by the High Court or a magistrate's subsection the act or omission constituting or otherwise, "the victim"), court (5)(a) and it has been proved during the trial of that the offence caused injury, damage or loss, to the person against whom the disclosure was in any law, on the acting on injury, damage or the court must, despite any provision or the prosecutor for that of the victim or of the victim's legal practitioner of the victim, award the victim compensation (7) (a) (b) Despite subsection (6) - loss, a court may not make such an award or order unless the injury, damage or and the liability of the convicted person therefor, have been proved on a balance of probabilities; the quantum thereof, including, where applicable, and court may not make such an award if the amount unless its civil applied a magistrates' of the compensation convicted person against whom the award is to be made and the victim consent in writing thereto.
for exceeds jurisdiction, The presiding (8) referred to in subsection offence compensation.

judge or magistrate must (6) of his or her right inform the vtctrm of an this section for to apply under (9) For the purposes of determining person therefor, the amount of compensation to the evidence the court may refer or the and the at the trial or hear further evidence either on affidavit or orally.
liability of the convicted proceedings (10) order under subsection civil judgment Where the High Court or a magistrate's (6) or (11), respectively, court has made an award or an that award or order has the effect of a of the court that made the award or order.

(11) Where the victim or convicted person is represented practitioner court may, that application, make an appropriate at the hearing of the application if costs additional under subsection to those incurred in the criminal order as to costs.
(6) for compensation, trial were occasioned by a legal the by Manner of making disclosure 31.

(I) A disclosure of improper conduct may be made in writing, orally or through electronic means and in the prescribed manner.
25 (2) (a) (b) (c) (d) (e) (t) (g) The disclosure must contain as far as practicable - the full name, address and occupation of the whistleblower; the nature of the improper conduct made; in respect of which the disclosure is the person alleged to have committed, who is committing commit the improper conduct; or is about to the time and place where the alleged improper conduct took place or is likely to take place; is taking place, the full name, address and description of the improper conduct, commission of a person who witnessed the if there is such a person; the whistleblower whether some other whom and to whom the disclosure was made; has made a disclosure of the same or of conduct on a previous occasion and if so, about improper if the person is an employee making a disclosure employer or a fellow employee, whether the same employment; and the whistleblower about that person's remains in (h) any other matter that may be prescribed.
Reduction of disclosure to writing 32.

(I) Where a whistleblower makes a disclosure orally, the authorised to be reduced into is made must cause the disclosure person to whom the disclosure writing, containing the same particulars as are specified in section 31 (2).
is illiterate, the writing required to be made (2) Where the whistleblower (l) must be read over, under subsection in a language and the whistleblower must approve of it before making a mark to it and a certificate to this effect must be attached to the writing.
and explained to the whistleblower the whistleblower understands interpreted (3) In the case of a person who is blind or with some other physical (2) must be made with the as required in subsection literate, a certificate disability, but necessary modifications.
Action by authorised person (1) 33. the authorised person must - When a disclosure of improper conduct person, is made to an authorised (a) (b) make a record of the time and place where the disclosure is made; give to the whistleblower the disclosure; and an acknowledgment in writing of receipt of 26 (c) keep the writing in which the disclosure safe custody pending investigation of the improper conduct.
is made confidential and in (2) Where the disclosure is made to an authorised to comply with subsection disclosure disclosure as required to another authorised under (I), that that authorised subsection, instead of recording to make person who is able to comply with that subsection.
person may, assist the whistleblower person who is unable the the Submission of copy of disclosure to Commissioner Where 34. the Commissioner, Commissioner within the prescribed that person must a disclosure is made submit to an authorised person, other a copy of the written disclosure than to the period after receipt of the disclosure.

Anonymous disclosures 35.

(I) disclosing information not.
his or her identity, If, for any reason, a whistleblower makes a disclosure without person receiving the report must assess the or information the authorised the disclosed is credible received and determine whether (2) After assessing the credibility of the information disclosed under subsection (l) the authorised person must - (a) if the information is credible and- (i) the disclosure was made to the Commissioner member of the Whistleblower Office, carry out investigations in accordance with section 40; or a staff the necessary (ii) (iii) the disclosure was made employer the necessary investigations to an authorised the of carry out employment, in accordance with section 37; or person in relation to an employee's the disclosure was made to an authorised person not mentioned in paragraph in accordance with section 38; (a) or (b), carry out investigations (b) if the information dismiss the matter.
is not credible or there is no merit in the disclosure, A person who makes an anonymous (1) is not entitled to whistleblower protection disclosure under as contemplated this Act, unless in that of this Act to making that disclosure that may be protected as contemplated complies with the requirements in section 44.

(3) subscection person subsequent relating to disclosures Public disclosures 36.
(I) to the public by any means Act there is no sufficient the person believes on reasonable act or omission that - A person may make a disclosure under that are suitable having regard to the circumstances is protected that time to make the disclosure under the provisions this if of this Part and is an grounds that the subject matter of the disclosure (a) (b) constitutes a serious offence under any law of Namibia; or constitutes life, health and safety of persons, or to the environment.
risk of a substantial an imminent and specific danger 27 to the (2) Before making a disclosure is intended to be made public under that circumstances take steps to verify the veracity of the information the identity of the person making the disclosure of the case, public, a person who receives a disclosure (1) must, having regard to the subsection in the prescribed manner and as far as is reasonably practicable contained in the disclosure as well as (3) Nothing in subsection disclosure of information Namibia which prohibits or restricts of national administration security, national defence, if the disclosure as authorising (1) may be construed is prohibited or restricted the disclosure of such information and detection the prevention the public by any law of in the interests the of crime, of justice or the sovereignty and integrity of Namibia.
PART 6 INVESTIGATION OF DISCLOSURES OF IMPROPER CONDUCT Disclosures relating to employment (1) 37.
An authorised member of the Whistleblower Office, who receives a disclosure respect of the employee's and, disclosure employment must if that person - person, other than the Commissioner in the prescribed manner investigate from an employee or a staff in the (a) (b) (c) is satisfied that the disclosure on his or her findings and recommendations taken and submit the report is justified he or she must compile a report action to be for corrective to the chief executive of the employer; the disclosure is satisfied that report on his or her findings and submit of the employer; is not justified he or she must compile a the report to the chief executive considers the disclosure must compile executive of the employer.
or that a report that he or she does not.have the capability investigations further to that effect and submit are required, the report to investigate he or she to the chief (2) On receipt of the report submitted under subsection (1) the chief executive must - (a) (b) (c) to a report made in relation recommended the action taken and refer the report report on the action taken to the Commissioner; corrective under action, notify the whistleblower subsection (1 )(a), together with the chief executive's take the in writing of in relation to a report compiled matter, notify the whistleblower chief executive's subsection under the in writing and refer the report and the and (1)(b), dismiss decision to the Commissioner; in relation to a report compiled under subsection (1)( c), refer the matter and notify the whistleblower to the Commissioner in writing.
(a) (b) 38.
(a) (b) 28 (3) When making a reference in terms of subsection (2)(a), the chief executive must provide the Commissioner with information - (a) (b) the improper describing including identify the person found to have committed identify the person to adequately information if it it describe the improper conduct, that could to is necessary conduct; and to the improper conduct action, if any, taken by the chief executive or the reasons why no corrective in the corrective about relation action was taken.
(4) or proposed chief executive must - If the chief executive does not agree with the findings, recommendations course of action of the authorised person made under subsection (1), the compile submit the statement to the Commissioner; a statement outlining his or her reasons for disagreement together with the report of the authorised and and person in writing, but without disclosing the contents of the statement or report, notify the whistleblower of the action the chief executive has taken.
Disclosures made to other authorised persons (1) If a disclosure is made to an authorised person other than - a person referred to in section 30(l)(a); or of the Whistleblower in the manner prescribed receipt of the disclosure, if the person to whom the disclosure investigate or a staff member person must, period after the Commissioner the authorised the prescribed disclosed matter but does not have the capacity to undertake must investigation for investigation.
the disclosure as recorded refer the investigation, to the Commissioner Office, and within the is made that person or to an agency or another body as directed by the Commissioner (2) investigating person is satisfied that the disclosure If after a disclosure under subsection (I) the authorised - (a) (b) (c) is justified he or she must compile recommendations report to the Commissioner; for corrective a report on his or her findings action to be taken and subm it and the is not justified he or she must compile a report on his or her findings and submit to the Commissioner; the report or further investigations requires a report on his or her findings and recommendations to be taken and submit to be undertaken to the Commissioner.
the report he or she must compile for further action Action by Commissioner after reference 39.
(I) On receipt of - (a) (b) (3) (a) (b) (4) 29 (a) (b) (c) a report referred to him or her under section 37(2)(a) or (b); a statement and report referred to him or her under section 37(4)(a); or a report referred to him or her under section 38(2)(a) or (b), the Commissioner must consider made the disclosure not and in the prescribed manner notify the decision to the relevant authorised person and whistleblower is a whistleblower who is entitled to protection the matter and determine whether accordingly.
the person who this Act or under chief executive, (2) If the Commissioner determines under subsection (1) that a person referred to in that subsection is - is a whistleblower person is entitled to protection the disclosure section 52; or who is entitled to protection that as from that date that he or she made under is terminated this Act, under up to the date when the protection to protection not entitled to protection as from that date that he or she made the disclosure up to the date when that person receives notification that has determined that the person is not entitled to protection the Commissioner under this Act.
that person is entitled this Act, under subsection relation to the matter, (1), If, after receiving the Commissioner a report or a statement that considers further and report action needs referred to in to be taken in the Commissioner may refer the matter - together with his or her recommendations executive or authorised back to the relevant or person to act on the recommendation; chief to an investigator contemplated in section 40(3).
or an investigative agency for further investigation as A person who is aggrieved by the decision of the Commissioner under period apply for subsection the decision to be reviewed by the Tribunal.

(1) may in the prescribed manner and within the prescribed Investigation of disclosures by Commissioner (1) 40.
If a disclosure of the Whistleblower Office or is referred to the Commissioner or section 38(1) or (2)(c), the Commissioner may- is made to the Commissioner or a staff member under section 37(2)(c) (a) (b) (c) assign an investigator the matter agency as contemplated for investigation in subsection (3); to investigate and report on the matter or refer and a report by the relevant investigation if necessary further or the whistleblower; information for him or her to make an informed from the relevant chief executive, or decision, request for authorised person ifhe or she considers in the disclosure, chief executive, dismiss authorised that there is no merit contained the matter and in writing inform the relevant in the allegations person and the whistleblower accordingly.
30 (2) Despite subsection a written disclosure under section 34, assign an investigator the matter or refer the matter agency.

for investigation (1), the Commissioner may on receipt of a copy of and report on investigation to investigate and a report by the relevant (3) On receipt of a disclosure or investigation referred to him or her or it under subsection in the prescribed manner, agency must, (1 )(a) or (2), conduct an investigation the investigator into the disclosure of improper conduct.
(4) An investigation undertaken as possible receipt of the disclosure and must in respect of improper conduct must be in any event be completed within the to undertake or directives carried out as expeditiously the prescribed period after investigation.
(5) Despite anything to the contrary investigate or cause to be investigated not member of the Whistleblower Office or a disclosure this Act where the subject matter of the disclosure another person, body or entity authorised in this Act, the Commissioner may a disclosure made to him or her or to a staff under referred to the Commissioner by is currently being investigated investigation.
by law to carry out that (6) A person who is aggrieved by the decision of the Commissioner subsection for the decision to be reviewed by the Tribunal.
(l)(c) may in the prescribed manner and within the prescribed under period apply A person who undertakes (7) and in the course an offence of that and is liable on conviction investigation an investigation in respect of an improper evidence, conceals or suppresses to a fine not exceeding N$25 000 or five years or to both such fine and such for a period not exceeding conduct commits to imprisonment imprisonment.
Application for court assistance 41. to the authorised appears Where in the course of an investigation under section 37, 38 or 40 it person, investigator or investigation agency - (a) (b) that evidence or documents destroyed, concealed, relevant tampered with; or to the investigation are likely to be that a person willing to provide information is being subjected to pressure, inducement the information, relevant or intimidation to the investigation to withhold person, investigator the authorised manner, apply to any competent evidence or documents person willing to provide the information.
or investigation agency may, court or to the Tribunal for an order in the prescribed the to preserve of the or intimidation or to restrain the pressuring, inducement Report to Commissioner 42.

(1) possible reasonably submit a report on the investigation after an investigation An investigator investigation or contemplated to the Commissioner agency must as soon as is in section 40(3) for directives.
is completed, Where the completion of the investigation in section 40(4), the investigator or investigation is delayed beyond the period agency must submit a 31 (2) contemplated report to the Commissioner stating - (a) (b) (c) (3) the reasons for the delay; measures that are proposed to expedite the investigation; and any further assistance required to complete the investigation.
A report of an investigation which is submitted to the Commissioner must contain the recommendations and particulars other information of the investigator as may be prescribed.

or investigation agency and such Action by Commissioner 43.
(I) The Commissioner may on receipt of a report under section 42(1), take any of the following steps - the recommendations accept appropriate action; further ask for conducted the investigations investigations contained in the report and take any by the same person or institution or by some other person or institution; that or reject the report and the recommendations for stated reasons.
(a) (b) (c) (2) The Commissioner must in writing notify the relevant chief executive, of the agency and the whistleblower authorised investigator person, decision made under subsection or investigation (I).
(3) investigation If the Commissioner decides that a person in respect of whom an has been carried out is - (a) (b) who is entitled a whistleblower that person is entitled to protection as from the date that he or she made the disclosure up to the date that the protection under section 52; or to protection is terminated this Act, under to protection not entitled under protection as from that date that he or she made the disclosure date when that person receives notification determined the person is not entitled to protection that person this Act, that that the Commissioner to up to the has under this Act.
is entitled (4) A person who is aggrieved under this section may in the prescribed manner and within the prescribed period apply for the decision to be reviewed by the Tribunal.

by the decision of the Commissioner PART 7 WHISTLEBLOWER PROTECTION Disclosures that are protected 44.
(1) A disclosure - 32 (a) (b) (c) (d) made by a person referred to in section 29; made to an authorised person or to the public pursuant to section 36; that complies with section 30; and made in the manner described in sections 31 and 32, is entitled to whistleblower protection under the provisions of this Act.
(2) Despite subsection (1), a disclosure is not protected if at the time that it is made it is - (a) (b) prohibited by any law; or known or proved that it is or it was made under any of the circumstances referred to in section 52( I).

Whistleblower protection 45.
A whistleblower (I) improper conduct by an authorised 39(2) or 43(3), as the case maybe, entitled to whistleblower follows: is, from the date of receipt of the disclosure of person up to and until the dates referred to in section under this Act as protection (a) (b) (c) (d) protection of confidential information; subject to section 47, immunity from civil or criminal action; protection against detrimental action; and where applicable, protection under the Witness Protection Act, and for the purpose of paragraphs person related to or associated with the whistleblower.
(c) and (d), the protection must be extended to any (2) (a) (b) Whistleblower protection conferred under this Act is not - limited or affected in the event does not lead to any disciplinary against whom the disclosure of improper action or prosecution of improper conduct of the person conduct has been made; and that the disclosure affected in the event is instituted against improper conduct has been made.
that disciplinary the person in respect of whom the disclosure action is taken or a prosecution of (3) This Act does not limit the protection conferred by any other law to any person in relation to information given in respect of the commission of an offence.

Protection of confidential information 46.


(1) A person who - (a) makes or receives a disclosure of improper conduct; 33 (b) obtains confidential such disclosure; information in the course of an investigation into (c) in whatever way or by whatever means obtains confidential information, may not, during the periods information or any part thereof with the provisions of this Act or any other law,.
to in section referred to any other person or to the public, except 45(1), disclose the confidential in accordance (2) information - (a) (b) (c) Subsection (I) does not apply to a person who discloses confidential for the purpose of giving effect to the provisions of this Act; when required to do so by any competent court; or when required to do so in terms of any law.
(3) Where a whistleblower given by that whistJeblower, the court, is being heard may, on application made to it by the whistJeblower on behalf of the whistleblower, camera.
is a witness in a matter that relates to information tribunal or other authority before which the matter or by a person acting in order that the whistJeblower give his or her evidence (4) If any book, paper or document which is part of evidence tribunal in any civil, criminal or other proceedings inspection authority contains any entry in which any whistJeblower might proceedings to be obliterated are being held must cause all such passages so far as is necessary to protect lead to his or her discovery, the court, Iiable to or other in any court, is named or described or which tribunal or other authority before which the to be concealed from view or the identity of the whistleblower.
(5) A person who contravenes or and is liable on conviction for a period not exceeding fails (1) to comply with subsection to a fine not exceeding N$50 000 or 10 years, or to both such fine and such an offence commits to imprisonment imprisonment.
(6) Where it is brought intends to disclose or publish confidential to any other person who is not an authorised must in the prescribed manner - to the attention of the Commissioner that any person information which is protected under this Act person or to the public, the Commissioner a written notice that person from disclosing or issue publishing the information; prohibiting and serve the notice on that person.
A notice referred to in subsection (6) acts prohibiting the confidential the person in respect of whom it was issued from disclosing information specified in the notice.
as a temporary order or publishing (a) (b) (7) (8) (a) A temporary order referred to in subsection (I) is valid until - the expiry of 14 days from the date on which the notice was served on the recipient; 34 (b) (c) (d) (e) (9) the date on which the confidential under this Act; information ceases to be protected the date on which the order is cancelled by the Commissioner; the date on which the order made to it under subsection (9); or is set aside by the Tribunal on application the date on which a final order is made by the Tribunal or the temporary order the Commissioner is set aside or varied by the Tribunal on application made to it by (10).
under subsection A person against whom a notice referred to in subsection (6) was issued in (8), order the Tribunal may at any time before the notice ceases to be of effect the manner prescribed, imposed by the notice set aside or varied, and on receipt of the application, may set aside or vary the order or dismiss the application.
in terms of subsection prohibition to have the temporary apply to the Tribunal (10) The Commissioner may, within 14 days after the notice referred to in apply to the Tribunal and the Tribunal may confirm the order order, set aside or vary the temporary in the manner prescribed, order confirmed, prohibition subsection (6) was served on the recipient, to have the temporary order by may making it a final prohibition or dismiss the application.
(II) In an application made under subsection (9) or (10), make any other order as it considers order for costs.

appropriate in the matter but the Tribunal may it may not make an (12) A person who contravenes or fails to comply with a temporary referred to in subsection (7) or a final order made under offence and is liable on conviction to a fine not exceeding N$SO 000 or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment.
(10) commits subsection order an Immunity from civil or criminal proceedings A whistleblower 47. disciplinary proved that the whistleblower false and the disclosure was made in bad faith.

action for making a disclosure is not liable to civil or criminal under is protected or to it is contained in the disclosure was proceedings this Act unless that knew that the information Protection from detrimental action 48.
(I) A person may not take detrimental action whistleblower for a disclosure or any person related to or associated with the whistleblower of improper conduct.
against in retaliation a (2) A person is considered as having taken detrimental whistleblower or any person related to or associated with the whistleblower action against if - a (a) the person takes or threatens to take the detrimental action because - (i) the whistleblower or has made a disclosure of improper conduct; the person believes to make a disclosure of improper that the whistleblower conduct; or 35 has made or intends (ii) (b) the person incites or permits another person to take or threaten to take the detrimental action for any reason under paragraph (a).
(3) detrimental A whistleblower is not be considered as having been subjected to action if - (a) (b) (c) is established it disclosure alleged detrimental protected action; by evidence on a balance by this Act was not a contributory of probabilities factor that the to the it is established by evidence that the disclosure protected by this Act did not contribute to the alleged detrimental action; or the person against whom the complaint to take the action complained unrelated to the disclosure made.
in law is directed has the right of and the action taken is shown to be (4) this Act concerning proving that the detrimental to or associated with the whistleblower conduct an allegation Despite anything to the contrary in any law, in any proceedings or a complaint of detrimental action taken against a whistleblower under action the burden of or any person related is not in retaliation for a disclosure of improper lies on the person who has or is alleged to have taken the detrimental action.
(5) A person who contravenes or and is liable on conviction for a period not exceeding fails (1) to comply with subsection to a fine not exceeding N$75 000 or 15 years, or to both such fine and such an offence commits to imprisonment imprisonment.

Protection under Witness Protection Act, 2017 49.


(l) (a) of subsection paragraph whistleblower may, ifhe or she so wishes, make that report the authorised person must comply with subsection If a whistleblower wishes contemplated (I) of section 33 of the Witness Protection Act, 2017, to make a report in the to an authorised person and (5) of that section.
(2) If a whistleblower a report (3) of section 33 of the Witness Protection Act, 2017, is unable to make subsection may make the report on behalf of the whistleblower as contemplated the authorised as contemplated in person in that subsection.
Void contractual terms 50. between an employer (I) A provision in a contract of employment or other agreement and an employee is void if it - (a) (b) (c) seeks to prevent conduct; the employee from making a disclosure of improper has the effect of discouraging improper conduct; an employee from making a disclosure of precludes detrimental employee the action taken against the employee; or from making a complaint in respect of 36 (d) prevents an employee any court or other body or institution to claim relief or remedy in respect of the detrimental from bringing an action before the Tribunal, action.
(2) Subsection (I) also applies to a contract of employment or agreement in existence on the commencement of this Act.

Legal assistance 51.
If during the course of - (a) (b) an investigation in terms of this Act; any legal proceedings a matter disclosure arising is protected under this Act; or instituted against a whistleblower from a disclosure made by a whistleblower concerning which (c) proceedings before the Tribunal that involve a whistleblower, agency, is of the opinion that on his or her own or at the request of an authorised person, the Commissioner or investigation assistance, that the Director of Legal Aid appointed in terms of section 3 of the Legal Aid Act, 1990 (Act No.
29 of 1990) considers to section 10(2) or 11 of that Act.

investigator is in need of legal issue a certificate to the whistleblower legal aid to that whistleblower the Commissioner must the whistleblower recommending pursuant granting Termination of protection 52.
(1) The Commissioner may revoke whistleblower conferred under this Act ifhe or she is of the opinion, based on an investigation course of an investigation that - protection or in the (a) (b) (c) (d) (e) (f) the whistleblower of improper improper conduct disclosed; conduct, himself or herself has, after making or continued participated to participate a disclosure in the the whistleblower, intentionally made statement which believed to be false or did not believe to be true; in his or her disclosure a material of improper conduct, he or she knew or the disclosure of improper conduct is frivolous or vexatious; the disclosure of improper conduct principally merits of government involves questioning including the policy of a public body; policy, the the disclosure the motive of avoiding dismissal or other disciplinary of improper conduct is made solely or substantially with action; or the whistleblower, further information, in the course of making the disclosure or providing commits an offence under this Act.
(2) If whistleblower protection is terminated under subsection (I), the Commissioner must give a written notice to that effect to the whistleblower.

37 (3) A person who is aggrieved subsection (I) may in the prescribed manner under apply for the decision to be reviewed by the Tribunal.
by the decision of the Commissioner made period and within the prescribed (4) The Tribunal may make the and may also make such consequential an order protection for continuation of orders necessary the to whistleblower give effect to the order for relief.

PART 8 COMPLAINTS OF DETRIMENTAL ACTION Complaints of detrimental action 53.
(I) A whistleblower the whistleblower who honestly and reasonably likely to be subjected to detrimental disclosure Commissioner of improper or any person related to or associated with that he or she has been or is for making a to the action by any person in retaliation believes conduct may in the prescribed manner make a complaint or to any staff member of the Whistleblower Office.
(2) A complaint referred period from the date that prescribed opinion ought be filed after that period if the Commissioner case considers it is appropriate.

to have known that the detrimental that to in subsection (I) must be filed within the the complainant knew, or in the Commissioner's action was taken, but a complaint may of the having regard to the circumstance Commissioner's decision whether to investigate 54.

(I) The Commissioner must decide whether complaint received.
or not within the prescribed period after the date on which the complaint to deal with the is (2) (a) (b) If the Commissioner decides- he or she must to deal with the complaint his or her decision to the complainant has the authority to take disciplinary participated constitute detrimental action; or send a written notice of and to the person or entity that each person who action against to in the taking of the measure alleged by the complainant to deal with a complaint, not his or her decision to the complainant decision.
he or she must send a written notice of for the and set out the reasons (3) of the opinion that - The Commissioner may refuse to deal with a complaint if he or she is (a) (b) (c) dealt with the subject matter of the complaint or could more appropriately to a procedure provided for under any law, other than this Act, or a collective agreement as defined in section 1 of the Labour Act, 2007; be dealt with, according has been adequately the complaint is beyond the jurisdiction of the Commissioner; or the complaint was not made in good faith.
38 The Comm issioner may not deal with a complaint (4) acting under another Labour Act is dealing with the subject matter of the complaint.

if a person or body agreement defined in section in section 1 of the law or a collective (5) A person who is aggrieved (2) may in the prescribed manner under subsection apply for the decision to be reviewed by the Tribunal.

by the decision of the Commissioner made period and within the prescribed Investigation of detrimental action 55.
(1) must assign an investigator If the Commissioner to investigate the complaint.

decides to deal with a complaint he or she (2) An investigator must conduct an investigation into the complaint as informally and expeditiously as possible and in the prescribed manner.
(3) Before commencing an investigation under this section an investigator must - (a) (b) notify the chief executive of detrimental a complaint executive which the investigation or that other person of the substance relates; and concerned or any other person against whom action has been made and inform that chief to of the complaint notify any other person he or she considers appropriate, person whose inform that person of the substance of the complaint.
is called into question conduct including every and by the complaint, If the investigator (4) information any facilities, investigator may require for the purposes of the investigation.
to an investigation must provide so requests, information and access is relevant assistance, employers to their that and other persons who have the investigator with the respective premises that (5) investigation person, If the investigator because of insufficient the investigator must make a report concludes that he or she is unable to complete on the part of an employer to that effect.
to the Commissioner an or other cooperation (6) A person who contravenes or fails to comply with subsection with a request made by an investigaror liable on conviction not exceeding 10 years, or to both the fine and imprisonment.

to a fine not exceeding N$50 000 or to imprisonment under that subsection commits (4) or an offence and is for a period Commissioner's decision after investigation 56.
(I) As soon as possible after the completion of an investigation, the investigator must submit a report of his or her findings to the Commissioner.

reference of the matter in relation to the complaint is - If, after receipt of the report, to the Tribunal the Commissioner is of the opinion that a warranted, a determination the complainant; or the Commissioner must refer the matter of whether or not detrimental for to the Tribunal action was taken against (2) (a) 39 (b) is not warranted the complaint.
in the circumstances, the Commissioner must dismiss (3) In considering whether referring the matter to the Tribunal is warranted, the Commissioner must take into account whether- (a) (b) (c) (d) there are reasonable taken against grounds the complainant; for believing that detrimental action was the investigation of lack of cooperation employees or any other person; into the complaint could not be completed on the part of one or more chief executives because or the complaint 54(3); and should be dismissed on any ground mentioned in section having regard to all the circumstances to refer the matter the public interest relating to the complaint, it is in to the Tribunal.
(4) The Commissioner must in writing notify each of the following of his or her action under subsection (I) - (a) (b) (c) (d) (e) (f) the complainant; if the complainant is an employee, the complainant's employer; if the complainant the complainant's was taken; is a former employee, employer at the time the alleged detrimental the person or entity who was action if the complaint other person; is against any other person that is not an employer, that the person or persons person or persons who may have taken the alleged detrimental and identified in the investigator's report as being the action; the person or entity with the authority to take disciplinary any person referred to in paragraph (e).
action against (4) A person who is aggrieved under subsection apply for the decision to be reviewed by the Tribunal.

(2)(b) may in the prescribed manner and within the prescribed by the decision of the Commissioner made period WHISTLEBLOWER PROTECTION REVIEW TRlBUNAL PART 9 Establishment of Tribunal 57.

(I) There is established a tribunal to be known as the Whistleblower Protection Review Tribunal.
(2) chief magistrate, The Tribunal consists divisional magistrate of a person who holds or regional magistrate, the position of deputy or a person who has held 40 the office of judge deputy chief magistrate, who is the chairperson in accordance with subsection (4).
in the High or Supreme Court or the position of chief magistrate, in the magistracy, of the Tribunal, and two other persons appointed by the President divisional magistrate or regional magistrate (3) (a) (b) The President, on the recommendation of the Minister must- from among members magistrate, of the magistracy, appoint divisional magistrate or regional magistrate; one deputy or chief appoint a person who has held the office of judge of the High or Supreme Court or chief magistrate, of chief magistrate, divisional magistrate or regional magistrate; the position deputy to be the chairperson of the Tribunal.
(4) The President, on the recommendation subsection (5), must appoint as members of the Tribunal necessary qual ifications, skills or experience relevant to of the Minister two other persons who have the and subject to the functions of the Tribunal.
(5) Before an appointment is made in terms of subsection in the prescribed manner, invite registered employers organisations (4), the Minister and registered in the prescribed manner, the nominations respectively to the Minister nominate potential members of for consideration.

must, trade unions to, the Tribunal and submit (6) Members of the Tribunal are appointed sits only when the chairperson Tribunal sits to hear and determine before it or referred to it in terms of this Act.
an application considers that or complaint on a part-time it is necessary that of detrimental basis and the the Tribunal action brought (7) The Minister must as soon as is reasonably possible after an appointment has been made in terms of subsection members publish the names does not appointed invalidate of the Tribunal (3) or (4) publish in the Gazelle, but in terms of those subsections, the appointments.
the names of to so failure (8) Members of the Tribunal hold office for a period of five years starting at the end of their terms but are el igible for re-appointment from the date of appointment of office.

(9) A member of the Tribunal (3)(b) or (4) may not perform any function as such a member unless he or she has taken an oath or made an affirmation, which must be subscribed in the form as is prescri bed.
in terms of subsection to by him or her, appointed (10) A member of the Tribunal appointed in terms of subsection (3)(b) or (4) must vacate his or her office if the member- (a) (b) (c) is convicted option of a fine; of an offence and sentenced to imprisonment without the resigns his or her office by giving the President one month's notice in writing of his or her intention to resign; has been absent leave of the chairperson of the Tribunal; or for three consecutive sittings of the Tribunal without (d) is removed from office by the President under subsection (11).
41 opportunity of the Minister, (11) The President may at any time, after through the Minister affording the member an and, on the recommendation to make representations terminate the appointment ofa member- on the ground of misconduct; on account of continued ill-health; on account of efficiently; or incapacity to perform the duties of his or her office (a) (b) (c) (d) for any other reason that the President considers good and sufficient.
(3)(a), who are not (12) of subsection paid out of the funds allocated Office such remuneration approval of the Minister be reimbursed any other source.
Members of the Tribunal, other in full by Parliament than a chairperson in terms time service of the State are entitled to be appointed for the purposes of the Whistleblower and allowances responsible as may be determined by the Minister with the for finance but, any member of the Tribunal may by him or her from that are not recoverable for any costs or expenditure Secretarial work of Tribunal 58.
(1) Act, designate a staff member in charge of the administrative The Permanent Secretary must, subject to the Public Service in the Ministry to be the secretary of the Tribunal who is functions of the Tribunal.

(2) The Permanent Secretary may in like manner designate such other staff members of his or her functions.

in the Ministry as may be, necessary to assist the secretary in the performance Seat of Tribunal and jurisdiction 59.
(l) The seat of the Tribunal Tribunal may be performed Tribunal in consultation with the Penn anent Secretary may determine.
at any other place in Namibia is Windhoek, but the functions of the of the as the chairperson (2) (a) (b) (c) (d) (e) The Tribunal has jurisdiction to - determine provision of this Act; any application for review lodged with it in terms of any consider action referred to it in terms of this Act; and make a determination on any complaint of detrimental grant such remedy or remedies that is or are provided for in this Act; make any order or orders as may be necessary to ensure the effective implementation of the provisions of this Act; and to inquire upon any matter which is generally required or permitted to be referred to it under any provision of this Act or any other into and adjudicate law.
42 (3) Any decision, order or determination of the Tribunal may be executed or enforced as if it were a decision, order or a determination made by a magistrates' court in a civil matter.

The Tribunal must exercise its jurisdiction (4) magistrates' of 1944) and the Tribunal has the same powers, privileges in a civil matter.

a magistrate's under this Act as if it were a in terms of the Magistrates' Courts Act, 1944 (Act No.

32 to court established and immunities available court Costs 60.
The Tribunal may not make an order as to costs in any proceedings before it.

Contempt of Tribunal 61.
(a) (b) (c) A person who - disparages insults, capacity, or prejudices, findings of the Tribunal; or belittles any member of or anticipates influences the Tribunal the proceedings in that or intentionally himself or herself interrupts the proceedings of the Tribunal or misconducts in any manner during such proceedings; does anything in relation to the Tribunal which if done in relation to a court of law would have constituted contempt of court, an offence commits to imprisonment imprisonment.
and on conviction for a period not exceeding is liable to a fine not exceeding N$10 000 or 12 months, or to both such fine and such Rules of Tribunal 62.
(1) after consultation with the of the Tribunal, and the Commissioner, may make rules of procedure governing the practice The chairperson Committee and procedure before the Tribunal, including, but not limited to, rules governing - the giving of notices to parties; the addition of parties and interested persons to the proceedings; the summoning of witnesses; the production and service of documents; discovery proceedings; pre-hearing conferences; and the conduct of proceedings before the Tribunal.
(a) (b) (c) (d) (e) (f) (g) (2) a fine of N$1 0 000 or imprisonment A rule made under subsection (1) may prescribe a penalty, not exceeding 12 months, or to both for a period not exceeding 43 such fine and such imprisonment, provisions thereof.

for any contravention or failure to comply with the (3) Rules made under subsection (I) or any amendment thereof have no force of law until the chairperson of the Tribunal publishes them in the Gazette.

Expenses of Tribunal 63.


The expenditure (1) including witness incidental to the performance fees must be defrayed from the money allocated of functions by of the Tribunal Parliament for the purposes of the Whistleblower Office.

(2) Any person summoned to attend a hearing is entitled, at the discretion as those paid to receive the same fees and allowances of the chairperson to persons summoned of the Tribunal, to attend before the High Court.

Appeals from Tribunal 64. determination to the High Court.
(1) A person who of the Tribunal may appeal against is aggrieved by the decision, order or that decision, order or determination (2) An appeal manner and must be prosecuted given in civil proceedings any such an appeal court context, apply to the High Court do, subject the provisions as if it were an appeal lodged under subsection (1) must be lodged in the prescribed or an order from a judgment court and, for the purposes of prosecuting from decisions of a magistrates' relating to appeals by a magistrates' to such modifications as may be required by the PROCEEDINGS PART 10 BEFORE TRlBUNALAND REMEDIES Proceedings of Tribunal 65.
(1) informally and expeditiously requirements of natural justice.

Proceedings before as and in accordance with the rules of the Tribunal and the to be conducted the Tribunal are (2) A hearing before the Tribunal may be held in camera at the request of any party if the party establishes of the case so require.

Review proceedings to the satisfaction of the Tribunal that the circumstances (I) 66.
Any person who is aggrieved by any decision of or steps taken in relation to the protection of whistle blowers by the Whistleblower Office or any person acting for or on behalf of the Whistleblower Office under any provision of this Act, may within the prescribed to review the decision or steps taken.
period and in the prescribed manner, apply to the Tribunal (2) An application this Act may be based on any valid ground including any of the grounds on which an application for the review of decisions of lower courts, bodies may be brought before the High Court.
and other administrative for review under tribunals 44 (3) Where an application for review is made under this Act the Tribunal must hear the parties and thereafter it may - (a) (b) (c) (d) allow the application and set aside the decision of the Commissioner staff member of the Whistleblower Office; or referthe matter back to the Whistleblower Office for reconsideration; the application dismiss the decision; or and provide the parties with written reasons for make any other order or determination ci rcumstances.
which is appropriate in the Parties in matters referred by Commissioner (I) 67. complaint pursuant In proceedings to section 56(2)(a), before the Tribunal after reference of a the parties to the proceedings are - (a) (b) (c) (d) the complainant; if the complainant is an employee, the complainant's employer; if the complainant the complainant's was taken; and is a former employee, employer at the time the alleged detrimental the person or entity who was action the person or persons persons who may have taken the alleged detrimental identified in the reference action.
as being the person or (2) If the Tribunal as being a person who may have taken the alleged detrimental affected by a determination is of the opinion that a person who has not been identified action may be directly the Tribunal may add that person as a party.
of the Tribunal, (3) Every party must be given a full and ample opportunity before the Tribunal including, but not limited to, by appearing any proceedings hearing, by presenting represented evidence and by making representations by a legal practitioner, or by any person, for that purpose.
to participate at at any and to be assisted or (4) The Commissioner must, in proceedings the position that, before the Tribunal in his or her opinion, relating to is in the a complaint of detrimental public interest having regard to the nature of the complaint.

action, adopt Remedies for detrimental action 68.
(1) When referring the Commissioner must section 56(2)(a), the complainant in retaliation Commissioner must, on behalf of the complainant for disclosing improper conduct, - has been subjected to or is likely to be subjected to detrimental a complaint request the Tribunal to the Tribunal pursuant to to determine whether action the so determines and if the Tribunal (a) (b) claim damages for breach of contract; claim damages or compensation in respect of any loss or inj ury suffered; 45 (c) (d) obtain an interdict; or claim for any other relief or remedy to which the complainant may be entitled.
(2) The right of a whistleblower to bring proceedings or any person related to or associated with the whistleblower this Act does not affect any other right or remedy that may be available to him or her under any other law.

for damages or compensation under Powers of Tribunal to grant remedies 69.

(I) The Tribunal must conduct an inquiry into the complaint and to the matter must all the parties and other persons considered necessary by the Tribunal be heard.
(2) If, after the enquiry, the Tribunal intends to take detrimental Tribunal may grant a remedy to the complainant, - the following remedies action in retaliation for a disclosure of improper conduct, is satisfied that a person has taken or the any of including without limitation, (a) in the case of an employee complainant, an order for - (i) reinstatement; (i i) reversal of transfer; (iii) transfer of the complainant of the employer; to another branch or establishment (iv) back pay for lost remuneration together with interest; or (v) any other relief that detrimental action; is necessary to eliminate the effects of the an order for payment of damages, compensation, other form of pecuniary relief to the complainant; costs, interest or any payment any other financial action; detrimental to the complainant of an amount losses incurred by the complainant equal to any expenses and as a result of the an interdict detrimental or repeat, complainant restraining action from continuing, the person who has taken or intends repeating, threatening taking, causing or inflicting the detrimental action against to take to continue the in any manner; or any other reliefas the Tribunal considers fit.
The Tribunal may - on application at any time after a complaint has been made under section 53; or by the Commissioner, an investigator or a complainant (b) (c) (d) (e) (3) (a) 46 (b) during the course of an enquiry under subsection (I), make any interim order that the Tribunal considers appropriate in the circumstances.

Disciplinary action against person taking detrimental action 70.
(I) The Tribunal may, by order, require an employer or any person to take the disciplinary behalf, to take all necessary measures including termination acting on the employer's action, the Tribunal against any person named in the application who was determined have taken the detrimental or revocation of appointment.

of employment action.
specified by by it to (2) the factors ordinarily including, but not account employees, considered limited to - In making an order under subsection (I), the Tribunal must by employers when they discipline take into their (a) (b) (c) (d) (e) (f) (g) (h) (3) the gravity of the detrimental action; the level of occupies; responsibility inherent 111 the position that the person the person's previous employment record; whether the detrimental action was an isolated incident; the person's rehabilitative potential; the deterrent effect of the disciplinary action; the extent disclosure of improper conduct under this Act; and to which the nature of the detrimental action discourages the the extent detrimental private or public institutions.
to which inadequate disciplinary action would have an adverse action in relation to the in effect on confidence The person against whom disciplinary action is taken as a result of an (I) may not initiate a grievance or other similar procedure agreement in respect of the disciplinary action.

order made under subsection under any law or a collective Personal liability 71.
Despite a detrimental for committing associated with the whistleblower may be sued and is liable for damages or to pay compensation her personal capacity.

section 69 or 70, a person against whom any action is taken or any person related to or conduct in his or action against a whistleblower of improper this Act for a disclosure in retaliation under Additional remedies for employee whistleblowers (I) 72.
Any employee to or associated with the whistleblower who has been subjected to or is likely to be subjected conduct, may instead of for disclosing to detrimental making a complaint as a dispute pursuant to Part C of Chapter 8 of the Labour Act, 2007. to the Labour Commissioner action in retaliation this Act, refer whistleblower the matter a person improper related under or (2) For the purposes of the Labour Act, 2007, including the consideration of any matter emanating from this Act - 47 forming part of detrimental any dismissal disclosure of improper conduct, unfair dismissal as contemplated may be referred to the Labour Commissioner section 38 of that Act; and if proved, must be considered for to be an in section 33 of that Act and which to as a dispute pursuant in retaliation action action taken any other detrimental improper conduct, practice referred to the Labour Commissioner 51 of that Act.
as contemplated in retaliation for disclosure of labour in Chapter 5 of that Act and which may be to section as a dispute pursuant to be an unfair if proved, must be considered (a) (b) (3) If, in a dispute referred to the Labour Commissioner (1), it is proved that detrimental the employee conduct, Act, entitled to any remedy which may be granted to an employee this Act.
under subsection action was taken in retaliation for a disclosure of improper is, in addition to any remedy which is available under the Labour under complainant Relocation from place of employment 73.

(1) A whistleblower the whistleblower who fears or has suffered detrimental his or her employer or a person acting on behalf of the employer employee's place of employment.
or any person related to or associated with action may apply in writing to of the for relocation (2) (a) (b) If an employer or a person acting on behalf of the employer considers - the whistleblower that there is a danger or likelihood that detrimental against whistleblower, or action may be taken or any person related to or associated with the to hold his or her current position; ifhe or she continues that whistleblower the whistleblower or any person related to or associated with the has in fact suffered detrimental action, the only practical means of removing or substantially removing the danger or and that or the effect of the detrimental action is by way of relocation any person related to or associated with the whistleblower's the employer or a person acting on behalf of the employer must, as far as practicable, make arrangements of the whistleblower's place of employment for the relocation of the employment.
(3) of subsection terms and conditions The terms and conditions of employment (2) may not, without his or her written consent, be less favourable to him or her immediately applicable before his or her relocation.

of a person relocated in terms than the (4) Ifan employer or the other person refuses or fails to make arrangements of a whistleblower for the relocation whistleblower to or associated with the whistleblower may refer the matter to the Labour Commissioner in accordance with section 72(1).
or any person related to or associated with the or a person related (2), the whistleblower as contemplated in subsection 48 Reward for making disclosure PART 11 GENERAL 74. may request established The Commissioner by section 77 of the Prevention Committee to recommend conduct that a prescribed amount of money from the Criminal Assets Recovery Fund established section 74 of that Act.
Recovery of Organised Crime Act, 2004, that a whistleblower who makes a disclosure of improper of an accused person be rewarded with by leads to the arrest and prosecution the Criminal Assets to the Cabinet Reward on recovery of money 75. established The Commissioner by section to the Cabinet Committee 2004, the recovery of an amount of money or other property be rewarded from the Criminal Assets Recovery Fund established may 77 of that a whistleblower whose disclosure the Criminal Assets Recovery of Organised Crime Act, in request the Prevention by section 74 of that Act with - to recommend results (a) (b) the prescribed percentage or recovered; of the amount of money or value of property any amount of money that the Minister, determines.
the Commissioner, after consultation with Amendment of section 76 of Prevention of Organised Crime Act, 2004 76. in subsection Section 76 of the Prevention of Organised Crime Act, 2004 is amended (1) by the insertion after paragraph (b) of the following paragraph: "(bB) the payment of a reward as contemplated the Whistleblower Protection Act, 2017 (Act No.

of 20 17);".

in section 74 or 75 of Amendment of section 84 of Labour Act, 2007 77.
Section 84 of the Labour Act, 2007 is amended in subsection (1) by the insertion after paragraph (c) of the following paragraph: "(cq Regulations 78. regulations (I) relating to - refened a dispute section 72(1) or 73(4) of the Whistleblower 2017 (Act No.of 20 17);".
to the Labour Commissioner in terms of Protection Act, The Minister, after consulting the Committee may make (a) (b) (c) the functioning pertaining to the Whistleblower Office; of the Whistleblower Office and any other matters the manner additional information which may be required; of making disclosures to authorised persons and any the manner including a code of conduct in which authorised regulating their conduct; persons must perform their functions, the criteria for appointment officers and their functions; of ethics and integrity officers by designated 49 the content of codes of conduct and mechanisms of employment; for internal disclosure of improper established by designated employers conduct at places the manner of conducting any investigation in terms of this Act; the manner of making an application which is or may be required to be made in terms of this Act, the form and content of a notice referred to in section 46(6), the manner of serving such notice; including the criteria for the payment and the amounts of rewards payable under this Act; any administrative provisions of this Act; and or procedural matter necessary to give effect to the any other matter which is required or permitted to be prescribed this Act, or considered to achieve the objects of this Act.
necessary or expedient by the Minister under in order (d) (e) (f) (g) (h) (i) (j) (k) (2) When making a regulation involving the imposition on any person the Minister may only make such regulation with the concurrence Minister for finance.
responsible of a fee or charge of the (3) Regulations made under subsection thereof or failure to comply therewith for a period not exeeding (1) may prescribe penalties not exceeding for any a fine ofN$lO 000 12 months, or to both such fine and such contravention or imprisonment imprisonment.

Guidelines and information 79.

(I) The Commissioner, not issue practical guidelines, of this Act and all procedures which are available other persons who wish to disclose improper disclosing improper conduct.
after consultation with the Committee, may inconsistent with this Act, which explain the provisions and in terms of any law to employees conduct or otherwise obtain a remedy for (2) in the Gazelle.

The Commissioner must publish the guidelines (I) referred to in subsection (3) All employers, including the State, must take reasonable that every employee gets a copy of the guidelines take reasonable steps to bring the relevant notice to the attention of every employee.
referred to in subsection steps to ensure (I) or must (4) The Commissioner, steps to ensure that the guidelines agencies must take reasonable (I) are made available to members of the public in order to ensure that members of the public are well informed and educated about authorised persons and investigation referred to in subsection the importance of disclosing improper conduct.

50 Short title and commencement 80.


(I) This Act is called the Whistleblower Protection Act, 2017, and it comes into operation on a date determined by the Minister by notice in the Gazelle.

(2) (3) Different dates may be determined for different provisions of this Act.

Any reference in this Act to the commencement of this Act is construed as a reference to the date determined under subsection (I) or (2).