Protection of Information Bill: way forward

Ad Hoc Committee on Protection of State Information Bill (NA)

28 October 2010
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Committee spoke about the way forward: whether a petition filed by the Independent Democrats should be considered, the possible incorrect tagging of the Bill as raised by the Open Democracy Advice Centre and the effect on the Committee’s work of the early 18 November rising of Parliament. The legal opinion on the correctness of the tagging of the Bill (as being a national competence and not a provincial competence) would only be available to the Committee the following week. It was thus decided to adjourn the meeting.

Members spoke about the Constitution’s limitation clause and the need to balance human rights with state secrecy. Some commented about the need to set out clearly what information had to be classified, by whom, the classification criteria and the declassification mechanism. There were a number of proposals from some opposition Members including the deletion of Clauses 5 to 12 and 17, that the Regulation of Interception of Communication Act judge should be the appeal body instead of the Minister of State Security and that the Information Regulator envisaged in the Protection of Personal Information Bill should be the custodian of ensuring that state entities adequately protected the valuable information of citizens. [Next meeting: Wed 3 November 9 - 12.45pm and 3 - 6pm]

Meeting report

He had been in contact with the Speaker’s Office to obtain an opinion on the concerns raised by ODAC. The Speaker was currently overseas. A legal opinion had been given to the Speaker but it would only be available to the Committee once he came back into the country. Without anticipating what the Speaker might say, his opinion on the matter was that there was nothing wrong with the tagging of the Bill.

The sessions where the Minister presented before the Committee were merely proposals and suggestions to the Committee. The Minister did not have the power to amend the Bill. The Committee had to now deliberate on the input received during the public hearings. The Committee would also look at the complete package of what the Minister had proposed in order to see what the Bill would look like if one were to take into consideration the concessions requested by the Minister during his two presentations.

Ms D Smuts (DA) asked, if the petition by the Honourable Lance Greyling from the Independent Democrats were to be considered, would it not then mean that the petitions from all the other organisations, which had objected to the Bill, should also be heard? On what basis would this petition be given a hearing for instance? The Bill as it currently stood, applied to provinces and municipalities. The point raised by ODAC was valid and it would be a waste of time if the Committee proceeded only to find out later that the Bill was procedurally incorrect. A much narrower redraft of the Bill could be entertained at this stage because the Bill took over the entire intelligence regime and gave it a scope that was much too wide.  The Minister had said that one of the things that should be legitimately classified was unlawful acts against the constitutional order. In legislation of this nature, such things as unlawful acts against the constitutional order had no place. Unlawful acts against the constitutional order were not something that could be determined by the intelligence agencies, as they were not equipped to do so.

Ms V Mentor (ANC) agreed with Ms Smuts about the petition by the Independent Democrats as there had been a public participation process where all submissions could be heard orally and submitted in written form. The Committee should take a decision to not allow the submission to be considered further. The Committee should concern itself with the Bill and the Office of the Speaker should concentrate on the tagging of the Bill.  The tagging was a matter that could not be finalised today but by the next meeting it should be clear what the way forward on this was. She agreed with Ms Smuts that the items that were supposed to go in or out of the Bill had to be clarified. The Minister’s submission also had to be considered. The Committee had to clarify what sort of information had to be clarified in the Bill, who would be responsible for classification and what would the classification criteria be. It should also be stressed that the Bill would not be used to silence the media, conceal corruption, abuse the constitutional rights of citizens and that once information was classified, it would not remain so forever. The process of declassification had to be outlined further. The impact of the Bill on the lives of citizens had to be seriously considered.

Dr M Oriani-Ambrosini (IFP) said that tagging was whether or not the Bill fell within the legislative competence of a province and not whether or not provinces would be affected by the legislation. His opinion was that the Bill did not fall within the legislative power of the provinces and thus it had been correctly tagged. The ANC would bear the lion’s share of the responsibility of this Bill but there would be contribution from the other parties as well. They were all in agreement that the Bill had to be constitutionally compliant. The limitations clause in the Constitution, which he fought against, was its soft under belly. An example of this was how weak the constitutions of America and Canada had become where security legislation was concerned. The Committee should hold a workshop and find common ground on such matters. The Bill had to be justiciable however. There had to be a mechanism for declassifying information as well.

Ms Smuts commented that the Bill mentioned the Covenant for Political and Human Rights and the Minister also alluded to it in addition to citing the European Convention on Human Rights. Both of these conventions carried a necessity test and the Committee had to keep this in mind. The infringement of people’s rights to receive and impart information should only be done if it was necessary for the sake of security, not just when it was justifiable in an open and democratic society. She thought that the Minister’s understanding of how the international instruments including the Constitution worked, was in her view lacking. A whole lot of clauses should be deleted such as all of the provisions protecting valuable information, Clause 5 to 12 and 17. One of the controversial issues was that the Minister should not be an appeal body. The appeal body could be the Regulation of Interception of Communications Act (RICA) judge who was already seized with issues concerning national security.

The Chairperson said that he would like to draw Ms Smut’s attention to the fact that the Bill was seeking to protect valuable information from alteration, destruction and loss. Public bodies had a duty to protect such information. Was she saying that this must not be done?

Ms Smuts replied that she thought it was entirely inappropriate for intelligence services to be let loose in government entities and private companies. The Protection of Personal Information Bill was currently being drafted and an Information Regulator was being created whose task would be to partially look after the security of information in all government department except those that fell under Security. This was more appropriate than intelligence services having access to the information such as that of Home Affairs. It was intrusive to have intelligence services having access to such information and one shuddered to think how much staff capacity from intelligence would be required to do all this work.

Ms Mentor said that the issues raised by Dr Oriani-Ambrosini were critical. It was the responsibility of all committee members to draft this Bill and the responsibility should not be shifted to the ruling party. She wanted to challenge the media on this. In 2004 the government went to an annual conference on intelligence in the United States of America. The South African government had consistently raised the issue and need for the balancing of human rights with secrecy at every conference since 2001 after the September 11 attacks. In Washington she had represented the South African delegation and stood in front of a US Supreme Court Justice advocating that human rights should not be sacrificed in the name of state secrecy. This was the core theme of the ANC and it had fought for this. She wanted to assure the media and South Africa that this was a principle from which they would never deviate. There was a need for some state information to be protected. However it should be specified how classification would take place, who would classify information, what the declassification process was and that human rights must not be infringed upon when information was being protected. The ongoing maliciousness and mischief that there was an intention on the part of the government to conceal corruption must stop.

Mr S Swart (ACDP) welcomed the emphasis on human rights from Ms Mentor. Interestingly, South Africa had received the number one ranking for openness and transparency in finance. The test for state security should include desirability and not just constitutionality. Had the issue of Parliament adjourning as early as 18 November 2010 been raised with the Committee and how  might this impact on the work of the Ad Hoc Committee? 

Dr Oriani-Ambrosini said that the Bill was urgent as the present situation was horrendous. The Bill was an improvement from what they had had from the apartheid era.

Ms Mentor advised that the meeting should adjourn, as the issue of the correct tagging of the Bill would render the work of the Committee void if it were found that it had been incorrectly tagged. The Chairperson should push the Committee to do as much work as possible as Parliament was rising on the 18th.

Ms Smuts said that she sympathised with Ms Mentor but there should not be a compromise on the quality of the work of the Committee. There was no way that they could finish by mid November. They would have to reconvene.

The Chairperson agreed with both Members and adjourned the meeting. He would speak with the Speaker and once he had the legal opinion he would get back to the Members before the meeting the following week.


Members present – Ms Mentor (ANC); Mr Fihla (ANC), Mr Swart (ACDP) and Ms Smuts (DA), Dr Oriani-Ambrosini (IFP).

Apologies for absent Members were tendered to the Chairperson.

Meeting Adjourned


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