The Committee dismissed a formal complaint raised by a civil society organisation about the absence of too many committee members at meetings. Some of the concerns enunciated about the Bill was the need for a public interest defence, the need for an independent review mechanism, the inappropriateness of the definition of 'organs of state', that the Protected Disclosure Act had not been considered and that ‘national interest’ was too wide a concept.
It was announced that the Minister of State Security would be present on 13 August to reply to the concerns of the public submissions. Opposition members wanted to hear from the Minister who they felt was too influenced by the stance of the Chief State Law Advisor that the Bill was constitutional. The request for an external constitutional law opinion on the Bill was debated at length. Some Members cautioned that there would be cost factors involved, and that there was a Parliamentary Legal Office that could instead be used and legal opinions differed all the time. Other Members said that there were experts who were willing to draft an opinion pro bono. The lack of a costing of the Bill was also raised.
[Update: The Programme Committee of 11 August announced that the 13 August meeting with the Minister has been postponed]
The Chairperson welcomed all and said that the media was especially welcome. There were apologies from Mr N Fihla (ANC), Ms H Mgabadeli (ANC), Ms A Van Wyk (ANC); Mr J De Lange (ANC). Ms M Mentor (ANC) was on her way. The Committee had not had extensive deliberations on the submissions made during the public hearings. The Minister had requested an opportunity to respond to the concerns raised at the hearings. The Minister would have a meeting with the Committee on Friday 13 August 2010.
Mr Landers wished to raise a point of order. In one of the public hearing meetings of the Committee it was later reported that a highly respected non-governmental organisation (NGO) made a formal complaint to the Speaker of Parliament about the number of Members of Parliament that were absent at the Ad Hoc Committee meetings. It was also understood that there was another highly respected NGO that usually attended parliamentary meetings and then put up reports on their website; this was the Parliamentary Monitoring Group (PMG). PMG in an informal discussion confirmed that apologies from Members were usually not regarded as an important part of the report. In the Justice Portfolio Committee that used to be chaired by Mr De Lange it was not unusual for there to be only three or four committee members. The reasons for the Member’s absence were that they often had to attend to other business. The Institute for Democracy in South Africa (IDASA) complaint was thus strange. Given the fact that the Chairperson usually took great care to read out reasons for Members not being present and assuming that on that day IDASA were not present and took their information from PMG’s report, they were therefore not properly informed. This was a matter of concern and it was the first time that something like this had happened. It would be good to know why IDASA took this step especially since in the past it was not unusual for a Committee to have only three members including the Chairperson. Why did this body decide that on that particular day their sensibilities were offended by the absence of certain members who had apologised to the Chairperson? If it was the case that a formal complaint had been made to the Speaker, then this was a serious matter.
The Chairperson said that he was not sure if this was a point of order but the point made, would be noted. IDASA probably had their reasons for the complaint. If the Speaker took up the matter further or one of the other parliamentary bodies did so, then the issue would be dealt with later. All Members were present at meetings if they were able to attend and their non-attendance because of commitments to other committees was one of the disadvantages that Parliament had to face. The rules covered these scenarios unless there were instances where serious decisions had to be taken.
Ms Smuts commented that she agreed with the Chairperson that the Committee should not be seized with the matter just raised. It was assumable that this was a matter of concern for IDASA who had served for many years in the interests of democracy. It was not for the Committee to comment on their position or the Speaker’s response whatever it may be. It would be wonderful if some of the senior members appointed to the Committee, especially Mr De Lange were to find time to be present as he was one of the key supporters of the Promotion of Access to Information Act (PAIA). The Protection of Information Bill had to sit alongside PAIA and the Protection of Personal Information Bill. It was concerning that the position of the Minister may have been possibly influenced by the stance taken by the Chief State Law Advisor. This issue needed to be ventilated and the Minister’s position made clear. The previous version of the Bill had been stopped at the same juncture where the current Bill was. There were concerns from that committee at the time, one of which was that the exclusion of a public interest defence had not been discussed. The previous minister had agreed to the inclusion of a public interest defence. Was it still the position as left by the previous committee that the legislature had a concern about a public interest defence, the need for an independent review mechanism, the inappropriateness of the definition of organs of state, that the Protected Disclosure Act had not been considered and that ‘national interest’ was too wide a concept. Would the Committee pick up at this point?
The Chairperson replied that the Committee took the view that the new Bill would be treated as such and it would be inappropriate to consider the old version of the Bill. One of the reasons for this was that the membership of the two Committees was completely different. It would have been a waste of time for the new Committee to try and assess what was new or not. The Minister was also new; one could not hold a new minister to what an old minister had said.
Ms Smuts said that she abided by the ruling.
Dr Oriani-Ambrosini said that the Minister of State Security should be engaged with so as to ascertain what his views were on the concerns of the Committee regarding the Bill. There should be an independent declassification and review authority, a public interest override, a redrafting of the definition of public interest and national security and higher penalties for the intentional and wrongful classification of documents. It would be interesting to know what the views of the Minister would be. There were two conflicting interests in the Bill and these were liberty and a need for security. This required further debate.
The Chairperson said that the points raised would be taken to the Minister. However it should be kept in mind that the Bill was now before the legislature and only the Committee could change it, not the Minister.
Mr Maynier recalled that from the previous meeting, the Chairperson had agreed to explore whether it would be possible to have an external legal opinion on the Bill, could the Chairperson report back to the Committee on this. The issue of the Bill’s memorandum stating that there would be no cost implications had to be addressed. For example, the National Archives of South Africa had said that there would be cost implications for itself as an entity.
The Chairperson responded that the Minister had already undertaken to give feedback to the Committee on the issue of costs. The National Archives of South Africa still had to report on the potential cost implications for itself. The relevant authorities in Parliament still had to be engaged with concerning the consultation of a legal expert.
Mr Swart said that surely it would be useful to look at certain definitions that were contained in the previous Bill. The memorandum of the Ministerial Review Commission would also be useful. Did the Committee have the capacity to come up with definitions to replace, for instance, ‘national interest’?
The Chairperson said that there was nothing wrong with referring to clauses from the previous version of Bill.
Ms Smuts agreed with Mr Swart. Referring to the Ministerial Review Commission’s report would also be very useful. Many legal experts were willing to do pro bono work in order to assist the Committee. Departments when referring to state organs should quote Section 239 of the Constitution and not Section 238, which encompassed all entities created under statute.
The Chairperson replied that the Department was asked to give a figure on the number of state entities in a previous meeting, which they did. It was not a very high figure though. The matter would be raised during the Friday meeting.
Ms Mentor hoped that her apologies for being late had been recorded and commented that she had a right to be absent at meetings like any other Member of Parliament. Perhaps NGOs should be monitored on their attendance of meetings. If they did monitor the attendance of Members then it should be ascertained if it was a fair mechanism that was used. Could Parliament’s legal division be utilised regarding the soliciting of an expert opinion since there were cost and interest factors involved if an external legal opinion were to be solicited.
The Chairperson said that there were persons from the Office of the State Law Advisor and Parliamentary Legal Office who had been present from the very first meeting of the Committee. The proper channels would be followed in this matter and the Committee would be briefed on all developments.
Mr Fihla said that perhaps it was not wise that other parties felt overcome by the debates and subsequently brought in other Members who were not members of this committee, as reinforcements. How would it look if the ANC brought its own reinforcements? As for the external legal opinion, one had to keep in mind that legal opinions would always differ.
The Chairperson said that there was no reason why any Member of Parliament outside of the Committee could attend the meetings. However the members of the Committee would make the decisions. The Committee was now familiar with all the major issues.
Mr Coetzee said that when the Chairperson spoke to the relevant authorities about soliciting an external legal opinion, it would be appreciated if he motivated for it to be undertaken. This was especially since the majority of the public submissions expressed concern over the constitutionality of the Bill.
The Chairperson said that it would be interesting to know when an opinion was ever independent.
Ms Sunduza said that the issues that had been raised were now exhausted.
The Chairperson asked members of the public to ask any questions they might have.
A Sapa journalist asked what the process was regarding the deadline for the Bill.
The Chairperson said that the deadline had currently been extended to September as per the Resolution of the National Assembly.
Mr Peter Du Toit from the Beeld Newspaper asked what processes were followed in order to determine whether or not outside legal experts were solicited.
The Chairperson replied that he was not sure whether there were any processes, the authorities in Parliament would be consulted.
Ms Liezel Steenkamp from Beeld asked who exactly were these authorities.
The Chairperson replied that it was probably the Speaker and the Secretary. They could however not be the specific persons but they could also give direction to the Chairperson.
The Chairperson said that the next meeting would be Friday 13 August.
The Members of the Committee present were Mr L Landers (ANC); Mr N Fihla (ANC); Ms T Sunduza (ANC); Ms M Mentor (ANC); Mr T Coetzee (DA); Mr D Maynier (DA); Mr M Shilowa (COPE) and Dr Oriani-Ambrosini (IFP). Non-Members that were present were Mr S Swart (ACDP) and Ms M Smuts (DA).
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