The Ad Hoc Committee considered the proposed amendments to Clause 23 (Access to information) in which all requesters of information were referred to the Promotion of Access to Information Act. The reason why ‘classified’ information was used under clause 23(1) was that classified information was not information that the Promotion of Access to Information Act was envisaged to deal with. The words ‘granted or refused’ were used in the same sub-clause to emphasise that every process and decision that related to access to information should be done in accordance with the Promotion of Access to Information Act. Clause 23(2) was necessary as it referred to the Information Officer’s decision to refuse or grant access. Should a request to access information be denied then one could appeal to the relevant authority. Another alternative would be to go to court. The words ‘as soon as is reasonably possible’ were derived from the Promotion of Access to Information Act. This was an attempt to ensure that declassification should be prioritised. Clause 23(2)(b) made it lawful to be in possession of information that had not been declassified but an order for declassification had already been made.
The briefing on minimum sentences provided the view that there were supporting constitutional law cases for the legislature to impose minimum sentences. In S vs Dodo the Constitutional Court held that minimum sentencing provisions did not violate the principle of separation of powers. The court held that under the Constitution there was no absolute separation of powers between the judicial, legislative and executive function. The government had a real interest in the severity of sentences and the courts did not have the sole authority in determining the nature and severity of punishments imposed on convicted persons. The Protection of Information Bill provided for minimum sentences in clauses 32, 33, 34, 35, 36, 38, 39, 40 and 43. The state law advisors had considered the minimum sentences in the Bill and concluded that firstly there was no provision in our law for espionage, hostile activity, unauthorized modification of a computer programme, failure to register as a foreign intelligence agent, unauthorized disclosure of classified information, failure to report possession of classified information and the provision of false information to a national intelligence structure. These crimes currently could not be accommodated in the Criminal Law Amendment Act as their sentences prescribed in the Bill of “not less than three years but not exceeding five years” did not fall within the periods provided for in the Criminal Law Amendment Act. The state law advisors proposed that provision should be made for minimum sentences in the Bill. Alternatively the Committee could ensure that the minimums sentences in the Bill fell within the periods provided in the Criminal Law Amendment Act.
The Committee was uncomfortable that Information Officer was referred to in the proposed amendment. This should be deleted and replace with ‘head of an organ of state’. There followed a long discussion on this. The Committee was concerned that clause 23(2)(b) could potentially legalise espionage. The Chairperson made it clear that the Criminal Law Amendment Act would not be amended to accommodate the minimum sentences. The Bill would rather contain these. The Democratic Alliance was of the view that the Committee should not pursue minimum sentences. It stressed the need for the Committee to determine what should be classified first before moving on to harmonizing the Bill with the Promotion of Access to Information Act and debating minimum sentences. The ANC communicated very strongly that a zero tolerance approach would be adopted for espionage; the other offences were debatable. The IFP was opposed to minimum sentences in principle only, whilst the ACDP was also opposed to minimum sentences but was willing to go with the approach by the ANC.
Meeting reportPresentation: Proposed Draft: Chapter 7 Access to Information
Ms Ayesha Johaar, Acting Chief State Law Advisor, said the state law advisors had been requested to draft an amendment which accommodated a situation where every request for access to information would be done via the Promotion of Access to Information Act (PAIA). It was sufficient to refer all requesters of information to PAIA. The reason why ‘classified’ information was used under clause 23(1) was that classified information was not information that PAIA had been envisaged to deal with. The words ‘granted or refused’ were used in the same sub-clause so as to emphasise that every process and decision about access to information should be done in accordance with PAIA. Clause 23(2) was necessary as it referred to the Information Officer’s decision to refuse or grant access. Should a request to access information be denied, then one could appeal to the relevant authority; that appeal person or office could then grant the requested access. Another alternative would be to go to court. Clause 5 of the Bill and the section on the offences created an offence for unlawful disclosure of classified information as well as unlawful use of classified information. Clause 5 also provided that where one happened to be in possession of information that was classified and used such information despite not having the necessary authority or clearance, this would be an offence.
The words ‘as soon as is reasonably possible’ were derived from PAIA. This was an attempt to ensure that declassification should be prioritised. Clause 23(2)(b) made it lawful to be in possession of information that had not been declassified but an order for declassification had already been made. There were consequential amendments in the Bill as a result of the draft proposal.
The Chairperson asked if there would be consequential amendments in PAIA as well.
Ms Johaar replied in the negative.
The Chairperson continued and asked if there were would be a number of consequential amendments in the Bill.
Ms Johaar replied that there would be a fair amount of consequential amendments that would have to take place. It was not a matter of just deleting one or two clauses.
The Chairperson asked if the state law advisors were still busy with the drafting and if they had identified any consequential amendments.
Ms Johaar replied that there were some consequential amendments that had been identified.
The Chairperson asked Ms Johaar to draw the Committee’s attention to a few.
Ms Johaar said that the most important consequential amendment would be the definition of ‘requester’. The definition had to be the same in the Bill as well as in PAIA. The second consequential amendment was the substitution for ‘head of organ of state’ with ‘Information Officer’. It was the conclusion of the state law advisors that this was not a big paradigm shift. Information Officer was broad and included municipal managers as well as Chief Executive Officers (CEO) of parastatals. The definition of ‘personal information’ must be broadened in the Bill so that it was aligned with the one in PAIA. The Bill provided that the immediate superior of a head of organ of state was the Minister. However Minister was limited because only certain organs of state had Ministers. Because of the move to the PAIA access regime, ‘Minister’ would be replaced with ‘relevant authority’; this was broader and all encompassing.
Dr Oriani-Ambrosini (IFP) commented that the Committee had agreed that whatever was made available in PAIA should not be taken away by the Bill. PAIA made provision for information that could be accessed and the Bill made provision for information that should not be disclosed. It was a struggle to understand the large volume of information that could be disclosed as allowed under PAIA and the smaller volume of information that could not be disclosed under the Bill. For example, commercial information could be withheld under PAIA but in the Bill it could not be classified. This approach was valuable in some instances only if it related to the utilisation of the procedural aspect of PAIA. The Information Officer would have to have appropriate security clearance, which would be consistent with what was contained in the information.
Ms Johaar replied that Dr Oriani-Ambrosini was correct; it was possible that the information that would be disclosed either mandatorily or by discretion could be broader than what was contained in the Bill. What the state law advisors were saying in the draft proposal was that the deciding factor for access would now only be through PAIA. The Information Officer as defined in PAIA was in fact the Director General.
Dr Oriani-Ambrosini followed up by agreeing that Directors General had the necessary clearance but not all heads of organs of state had the same status.
The Chairperson said that if a person had to have the necessary classification they would obtain it thought the Regulations. Whoever would deal with classification would have to have the necessary clearance, the Committee could debate as to what level of authority should classification be bestowed. The issue of clearances was not that big a deal.
Mr L Landers (ANC) said that he shared the same discomfort as Dr Oriani-Ambrosini on the proposed amendments in the Bill referring to an Information Officer. The phrase ‘Information Officer’ should be taken out of clause 23(2)(a) and replaced with ‘head of an organ of state’ because this was the classifying authority. It was the classifying authority that had the power to declassify as opposed to the Information Officer. The definition in PAIA for an Information Officer also included the words ‘or the person acting as such’, one could be dealing with two different persons. Things became even more complicated when one went further down to the level of municipalities and other public bodies. The ‘head of an organ of state‘ or ‘classifying authority’ should replace Information Officer so that the same authority, which classified the information, also declassified it. The Committee should also consider whether the head of an organ of state had the right to appeal a decision taken by a court or Information Officer. The requester had a right to appeal and this must also be extended to the classifying authority, where a decision to grant access to classified information had been granted. The difficulty with clause 23(2)(b) was that, would the possession of information contemplated in 23(2)(a) by a person who did not request it, be deemed to be lawful possession of classified information? Was this sub-clause not legalising espionage? Should the Committee not add ‘upon request’ at the end of clause 23(3)?
Ms Johaar replied that the state law advisors had compared the two definitions (Information Officer and head of an organ of state) and concluded that they referred to the same person. The Information Officer contemplated in the proposal amendment would also be the person responsible for classifying and declassifying. The Bill provided that such delegation could only be to a senior member of staff or a member of staff with sufficient or adequate seniority. Where there was a delegation, it was made on the premise that whoever made that delegation would remain responsible and accountable for any decisions taken by the delegatee. A response about legalising espionage could not be furnished at this point in time.
Mr G Ndabandaba (ANC) asked for more clarity on the use of the phrase ‘as soon as is reasonably possible’ under clause 23(2)(a).
Ms Johaar replied that the phrase was derived from PAIA itself. The state law advisors could not come up with a time frame for when the declassification period should take place, as they were not subject matter experts. The phrase communicated that there must be no delay in the declassification of information where an order of access had been granted. The time period could be specified to 14 or 30 days.
Mr T Coetzee (DA) said that the phrase ‘as soon as is reasonably possible’ was subjective and could be interpreted as envisaging a different time period from one interpreter to the next. A time period should be specified.
The Chairperson said the comment from Mr Coetzee was a criticism of PAIA as this was the terminology found in PAIA.
Mr Coetzee said that it should be kept in mind that the Bill would result in some of the other legislation being revised.
The Chairperson said that the Committee was actually looking at not interfering with PAIA.
Mr Landers again made the point that it was being assumed that because the head of an organ of state could delegate authority, that therefore that deputy was also an Information Officer. It was possible that this may not be the case. The DG could decide to remain the Information Officer whilst delegating authority to classify information to a deputy. What would happen in the event that the DG disagreed with a decision to declassify?
The Chairperson said that the presentation and consequential amendments had to be absorbed and tested by the Committee. The debate on these issues would not be finalised that day.
Presentation: Minimum Sentences
Mr Sisa Makabeni, Senior State Law Advisor, said that Section 51 of the Criminal Law Amendment Act, 1997, imposed minimum sentences for certain offences set out in Schedule 2 of that Act. The courts had said that any legislation that resulted in sentences that were grossly disproportionate to the crime would be unconstitutional on the ground that they would be cruel, inhuman and degrading. A mandatory sentence regime ran the risk of being unconstitutional if its application resulted in grossly disproportionate sentences being imposed. The Criminal Law Amendment Act had been deemed not to be unconstitutional because it allowed for departures from the prescribed minimum sentences. In S vs Dodo the Constitutional Court held that minimum sentencing provisions did not violate the principle of separation of powers. The court held that under the Constitution there was no absolute separation of powers between the judicial, legislative and executive function. The government had a real interest in the severity of sentences and the courts did not have sole authority in determining the nature and severity of punishments imposed on convicted persons.
The Protection of Information Bill provided for minimum sentences in clauses 32, 33, 34, 35, 36, 38, 39, 40 and 43. The state law advisors had considered the minimum sentences in the Bill and concluded that firstly there was no provision in our law for espionage, hostile activity, unauthorized modification of a computer programme, failure to register as a foreign intelligence agent, unauthorized disclosure of classified information, failure to report possession of classified information and the provision of false information to a national intelligence structure. These crimes currently could not be accommodated in the Criminal Law Amendment Act as their sentences prescribed in the Bill of “not less than three years but not exceeding five years” did not fall within the periods provided for in the Criminal Law Amendment Act. The various sentences imposed by the Bill for harboring, interception or interference, unauthorized disclosure of a state security matter (internally and externally), espionage (where information was classified as secret or top secret), and hostile activity (where information was classified as secret or top secret) could be accommodated under the Criminal Law Amendment Act. However, it would be a protracted process to introduce an amendment to the Criminal Law Amendment Act, 1997. The state law advisors proposed that provision should be made in the Bill for the minimum sentences. A schedule of minimum sentences should be appended. Alternatively the Committee could ensure that the minimum sentences in the Bill fell within the periods provided in the Criminal Law Amendment Act.
The Chairperson said that the Committee had convinced itself that it was not going to amend other laws. The Committee should rather look to the Bill in solving any problem if there was one.
Mr S Swart (ACDP) said that his party was not opposed to minimum sentences in general as there was provision for them in terms of S vs Dodo. When the Minimum Sentences legislation was drafted there was no reference to the Protection of Information Act. Was this now necessary and to which offences would it be applied. Minimum sentences were not ideal for this Bill so the last proposal from the state law advisors was ideal.
Ms D Smuts (DA) said that the opinion from the state law advisors was that the legislature could impose minimum sentences. From the DA’s side the Committee should not pursue minimum sentences. The Committee was once again putting the cart before the horse. Why were minimum sentences being discussed when it had not been decided what was being dealt with and criminalised. The point was well made the other day that the hostile activity defence did not even carry a definition. The difference between espionage and hostile activity was that the former benefited another state whilst the latter prejudiced the country. Before it was even known what the Committee was talking about in the Bill, why was it discussing minimum sentences? Until the Committee had nailed down what it would like to classify, (from the DA’s side this would be intelligence and security information), the Committee was quite frankly wasting its breath. It had to decide what would be classified and then it could go on to discuss access through PAIA and minimum sentences.
The Chairperson said that Ms Smuts spoke as if this process the Committee was currently dealing with was not important. What the Committee was currently dealing with had a constitutional problem which had been raised.
Mr Landers said that the ANC was of the view that there was a need to create the crime of espionage, which currently did not exist in South Africa. The crime of espionage was serious enough to warrant a minimum sentence but not life imprisonment. It must be made clear that the commission of espionage had a price attached to it. The bar could be set lower for information classified as confidential but espionage would not be tolerated. It was accepted that this was difficult but the Committee should ensure that it did not tread on the Justice Ministry’s legislation.
Mr N Fihla (ANC) said that he understood the concerns around minimum sentences as a deterrent. There were serious offences such as espionage that deserved a serious deterrent, like minimum sentences
Mr Swart agreed that espionage was a serious offence but perhaps there could be debates on the less serious offences.
Dr Oriani-Ambrosini said that in principle minimum sentences should be objected to but the approach was not based on principle in this matter. A minimum sentence was understandable where pre-mediated murder was concerned. However, ‘disclosure of classified information’ was so wide one from something really bad happening to something that was not very clear and was touch and go. With regards to espionage, some of the language and mindset of such things was cast in the 19th century. It was very difficult to determine who benefited from what piece of information in this modern world and how. ‘Benefiting’ and ‘government’ could mean anything, the notion of 19th century espionage was discomforting.
Mr Swart said that the minimum sentence in the 19th century for espionage might have been the death sentence and the Committee was not dealing with that today. The courts would still look for mitigating circumstances to avoid imposing minimum sentence.
Mr Fihla said that he was puzzled why Members were panicking about minimum sentences. There were some countries that currently had maximum sentences such as the death penalty and did not provide for minimum sentences. The legislature by providing minimum sentences was not taking the judges discretionary duties away. Judges could still apply lesser sentences than the one prescribed.
Ms Smuts should rest assured that the Committee would deal with those matters that had been raised by her. The most crucial issue apart from the public interest defence during the public hearings was PAIA, the Committee had to get this right. The state law advisors had to clean up the Bill on the matters already agreed on by the Members. The Committee should now have a Bill where all the changes had been effected. The new Bill should be circulated during the vacation; this would be called POB 3.
Ms Smuts added that it would be useful for the drafters to be aware that there was a grammatical non-sequitur in the definition of national security. This was going to make the lives of the drafters difficult because the Johannesburg Principles stated that ‘in keeping us and our territories safe from…’ inserted in there was ‘the capacity of the republic to defend itself’. At what point in January would the Committee reconvene?
The Chairperson said that the Committee would look at meeting around the period of 18 January 2011. The lifespan of the Committee had been extended to 26 January 2011. The Committee would be sent a draft programme before 25 December 2010.
Members Present:Ms Smuts (DA); Mr Maynier (DA), Mr T Coetzee (DA); Mr Fihla (ANC); Ms A Van Wyk (ANC); Mr Landers (ANC); Mr G Ndabandaba (ANC); Dr Oriani-Ambrosini (IFP) Mr S Swart (ACDP)
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