The representative from the Ministry of State Security continued with the briefing on international best practices around protection of information, in specific countries. The presentation outlined the position in the United States of America (USA), where there was a two-tier system, driven firstly by the originator, who determined the minimum security classification level, and then derivative classification, based on the original classification. Broadly speaking,
Members noted, with concern, that a group of people had apparently been denied access to Parliament to observe this meeting. Later, it was indicated that they were apparently making urgent application to Court. The Chairperson pointed out that this was not the venue to debate the issues, reiterated that Parliament and this meeting should be open to all, and he would take the matter up with the Speaker. Members questioned the presenter as to whether “best practice” was good enough, whether the countries chosen were good examples, saying that they would also have liked to have heard of the position in
An IFP Member had asked for the opportunity to discuss the need for a public domain exception, noting that once something was, for instance, published in the media, it was no longer secret and an individual could not be charged for having that knowledge. However, the Chairperson stopped him from illustrating his point with description of events in a Cabinet meeting, noting that he did not believe that this information should not be disclosed, found it inappropriate, called on him to withdraw the remarks and said that he would take legal advice on the matter. The Member’s statements were withdrawn.
Chairperson’s opening remarks
Members discussed their commitments for other meetings during the week, and the Chairperson noted that the next meeting would be arranged for Thursday or Friday in this week.
The Chairperson noted that Dr Oriani-Ambrosini had requested the opportunity to brief the Committee on an outstanding matter at the end of the meeting.
Protection of Information: International Best Practices: Ministry of State Security briefing (Part 2)
Mr Dennis Dlomo, Advisory Services, Ministry of State Security, noted that he would be continuing to present the case studies from United States of America (USA) onwards.
There was a two-tier system. The first was driven by the originator, who determined the minimum security classification level. The President, Vice President, Agency Heads and officials who were designated could classify, and some
Mr Dlomo stressed that there were two processes. The first was the original classification authority, as just described, and the second was derivative classification authority. Those with derivative authority could not determine what was a secret, but, during their research and consultation, they were expected to stick to the original classification. The information must take the minimum security classification required. There were strict rules guiding the originators – if they were to classify Top Secret documents they would have to attend upgrading training courses annually, while Secret levels required attendance at courses every two years. A failure to attend meant that the individual would be removed from the list of people allowed to classify.
Mr Dlomo added that there were two main types of review. A systematic review would be done to check the efficacy of the system, and this was usually done when a new President took office. He cited that during the term of President George Bush, there was extension of powers of interception into the domestic field and this was reviewed and changed when President Barrack Obama came into power.
Mr Dlomo then presented a case study on
Furthermore, given the background of Quebec secession demands in the past, Canada also sought to protect information which, if disclosed, could reasonably be expected to be injurious to the conduct of federal and provincial affairs, so it would also protect federal or provincial consultations or deliberations, or strategies relating to implementation.
Mr Dlomo then outlined he position in Macedonia, which classified information pertaining to public security, defence, foreign affairs, security, counter intelligence and intelligence of organs of State, systems, appliances, projects and plans of importance to the public, to security, defence, and foreign affairs, and information relevant to scientific research and technology, economic and financial affairs.
The information would be classified by a number of people, including the President of Macedonia, the President of Parliament, the President of the Government, President of the
Mr Dlomo concluded by reminding Members that
Dr M Oriani-Ambrosini (IFP) wished to raise a point of order, and announced that a group of people who wished to have access to this meeting had been told that they were attending Parliament illegally and should seek permission from the Speaker.
The Chairperson did not believe that this was a point of order. He also did not believe that this Committee meeting was the correct forum in which to take up this matter.
Ms M Smuts (DA) expressed her dismay and stressed that it was both a Constitutional requirement and in the Rules of Parliament that Parliament was open to all. She implored that the Chairperson reconsider the matter, and, at the least, approach the Speaker and make it clear that this was not in line with the wishes of this Committee.
Ms M Mentor (ANC) supported the comment, but wondered if it was correct to deliberate on it now.
Mr S Swart (ACDP) asked if it was possible to find out now whether people had indeed been barred from attending, and who might have given instructions at the Visitor’s Centre as the Rules were very clear that access should be allowed, provided that the meeting was not closed. He agreed, however, that in the meantime the Committee should proceed with its work.
Mr M Nchabeleng (ANC) noted that people would have to produce suitable identity, and he wondered if perhaps this might be the problem. He suggested that the reasons for the refusal be requested.
Mr N Diale (ANC) agreed with Mr Swart and the Chairperson that the meeting should continue
The Chairperson reiterated that this was not a matter within the jurisdiction of this Committee, and agreed that access could be denied to a person for a number of valid reasons. However, he would undertake to make enquiries himself, although he would not do so now. Neither he nor any staff member or Member associated with the Committee had issued any instructions to disallow access.
Dr Oriani-Ambrosini raised three points on the presentation. He firstly asked whether “best practice” was good enough, given South Africa’s long passage from the 19th century’s increase in secrecy and protection of information, through to the new season of more liberal access to information and a greater possibility to hold the State accountable.
Dr Oriani-Ambrosini did not think that the
Dr Oriani-Ambrosini said that while the presentation had been useful in giving the broad background, the detail was also very important, and the brief outline of the
Mr Swart noted that the United Kingdom of England and Wales (UK) had at one stage had a similar defence, but had done away with it.
Mr Swart asked if other countries had a mandatory override of national interest, as set out in section 46 of the Promotion of Access to Information Act (PAIA), even where that could pose a threat to national security.
Mr Swart also noted that there was existing jurisprudence relating to infringement of privacy at common law and information illegally obtained, as set out in the Sunday Times court case, which noted that even where information was illegally obtained it may be necessary to publish it, in the public interest.
Mr Dlomo wished to clarify his own position before answering the specific questions. Many of the questions were subjective in nature, and he stressed that he could not comment on policy, and therefore could not be drawn into debates on policy choices.
Mr Dlomo said that “best practice” was not an end state or destination, as every country could always improve, and had to constantly review matters to avoid being left behind.
He had attempted to include a number of jurisdictions in his presentation, and he pointed out that on the African continent there were some countries, such as
As to the choice of countries, this too was intended to cover particular concerns. He had included
Mr Dlomo noted that the public interest defence question was raised at a previous meeting. The first country to have this defence was the
Mr Dlomo said that a number of dispensations did have protection of information legislation, and there was a model law which governed implementation in the Organisation of American States. Many countries were also modelled their new legislation on
Mr Dlomo added that he would be happy to make a list of references available, so that Members could study the issues further. Some information relating to
Ms P Mentor (ANC) asked that references included in the documents should contain all relevant names, so that they were easier to trace. Otherwise, she had found the information useful.
Ms Mentor asked how long officials would be sworn to secrecy, noting that there had been instances in the past where officials had entered the system, accepted the privilege of receiving classified information, but then, when exiting the system, made use of that information. This situation could well arise currently in North Africa and
Mr Dlomo noted that the time frames varied from one dispensation to another. In
Ms Mentor commented that whilst the presentation had set out the review periods, it had not contained much detail on what systems were necessary for the entire process of classification, and asked that this be given.
Mr Dlomo said that he had tried to give some details around systems, pointing out that it was necessary to look at the whole process, from creation to destruction of information, to cater for each eventuality. He had also described the systems of review, and the fact that in internal reviews, officials who did the classification were not involved in the decision to review that information, and that Minister’s final responsibility was reviewable by the Courts. However, it was very difficult for him to give an overview on this, although he would be able, for instance, to answer to specific questions relating to the specific systems in a chosen country. It would be helpful for this Committee to look at what instruments and documents were in place elsewhere, but these must be used to assess what would be the best that
Ms Mentor did not wish to question the case studies already presented, but commented that it might have been helpful also to include comment on
Mr Dlomo responded that he was familiar with the situation in the BRIC (
Ms Mentor commented on the example cited of
Mr Dlomo said that he could not comment on this, as it had to do with policy.
Mr Dlomo reiterated that he would make a full list of references available, and could provide references to websites where more information could be obtained, including the laws of the different countries, which would assist Members in getting a full understanding. He commented that his list remained “work in progress”.
Mr B Fihla (ANC) commented that this Committee, when trying to assess best practice, really needed to take account of the stage of development of the countries, and what could most usefully be adapted to South African conditions, or what clearly could not work. He urged that the finest and most relevant of the “best practices” should be considered.
The Chairperson said that Members, in raising these questions, were not criticising what had been presented, but clearly wanted to get as comprehensive information as possible.
Ms M Smuts commented that the
Ms Smuts agreed with the comment that it was necessary to introduce the best practices that would cater for
The Chairperson interjected to say that this was not the correct time to hold such a debate. He asked that her comments be presented later, as time was now short, and asked her to confine herself to questions to the presenters at this stage.
Ms Smuts said that she had no further questions for Mr Dlomo at this stage.
Professor L Ndabandaba (ANC) asked if there were any standards set by multilateral institutions.
Mr Dlomo responded that in the first part of his presentation he had given an overview of the international instruments, which provided broad guidelines, but this list was not exhaustive. All of these instruments set grounds for restriction of the right of access to information, and he had illustrated also some international and national jurisprudence from different countries. The Johannesburg Principles on National Security and Access to Information were the latest compilation, but had not yet been subjected to serious scrutiny or study, although in April 2011 there would be a review of these Principles and other documents, to try to enhance best practices.
Ms Mentor commented that the Committee had come quite far, and said that while she appreciated Mr Dlomo’s stance that he could not comment on policy issues raised, it would be useful for him to take note of what Members were raising and feed it back to the Ministry of State Security. She thought that the Committee could now move forward by itself, with the last major issue seemingly being the issue of the public interest override, and asked the Chairperson if there did not need to be substantial discussions on this, although she was not trying to map out the agenda for the Committee. On the whole, the Committee seemed to be reaching a point of convergence.
The Chairperson agreed that public interest matters were a substantial issue, but he would hesitate to say that this would be the last issue that the Committee must deal with.
The Chairperson noted that it would be useful now to take the comment from Dr Oriani-Ambrosini, who had requested five minutes to emphasise an issue.
Comment by Dr M Oriani-Ambrosini
Dr Oriani-Ambrosini said that he wished to discuss the need for a public domain exception. He noted that once something was in the public domain – perhaps through publication in the media – then no individual could be charged with that knowledge because it was no longer secret. The point was how it reached that point. Information was protected, not the publication.
Dr Oriani-Ambrosini started to give an account of something that had occurred in a Cabinet meeting.
The Chairperson stopped Dr Oriani-Ambrosini at this point, saying that if something was in Cabinet Minutes, it was classified, unless it was in the public domain already.
Prof Ndabandaba said that if Cabinet issues were to be discussed, then somebody from Cabinet should be present to verify whether what was being presented was correct.
Dr Oriani-Ambrosini said this was classified information, which he was allowed to disclose.
Ms Mentor took issue with this, saying that information from Cabinet should never be divulged.
The Chairperson asked for a simple answer whether the information was common knowledge and in the public domain. The answer was in the negative. It was not really relevant at this point whether anyone from Cabinet was available to verify the information since matters that were classified in Cabinet could not be entertained here. If Dr Oriani-Ambrosini was intending to give an example that was intended to support his contentions on information in the public domain, it could not be entertained. He therefore ruled that the information must be withdrawn. The Chairperson would take an opinion on the divulging of the information. It was inappropriate that Dr Oriani-Ambrosini could place the Committee in a position where it might be colluding with the publication of classified information.
Dr Oriani-Ambrosini said that he would withdraw what he had said. However, he believed that he had a Constitutional right to speak on this information. He asked Members then to consider their positions if the Protection of Information Bill had already been passed. Each Member had, at his request, started to take notes on what he was saying. That would, if the Bill was passed in its present form, make them liable to imprisonment for 15 years. If they conveyed that information to others, then a further term would apply. If journalists were present who thought that the information was in the public interest, then not only the individual journalist, but also the editor, would be liable to imprisonment. Only when information was published did everyone recognise that the reader of the newspaper would not be charged. He wanted to discuss with the Parliamentary Legal Advisors how best to construct a public domain exception, and the example he had given illustrated the need for public domain provisions, so that once the information was no longer secret, it was no longer protected.
The Chairperson expressed his strong disapproval with the manner in which this was presented. He did not agree that Dr Oriani-Ambrosini’s examples and assumptions were correct, and said that if the Bill had indeed been passed, Dr Oriani-Ambrosini would be in serious trouble.
Ms Smuts said that he would be protected by Parliamentary privilege.
The Chairperson said that Members could debate the issue of whether it was necessary to include something in the Bill. However, he reiterated that he considered the presentation to have been in bad taste, and Dr Oriani-Ambrosini could have made his point in a less provocative and more appropriate way. The Chairperson had been generous in allowing him the opportunity to address the Committee. People with Top Secret clearance should not be acting in this way, as it amounted to abuse of the position.
Mr Swart returned to the point raised earlier about the group who had been denied access to Parliament, and alerted the Chairperson to the fact that they were apparently bringing an urgent application to Court, and urged that Parliament should act now to try to avoid litigation.
The Chairperson reiterated his earlier undertaking that he would take the matter up with the Speaker.
The meeting was adjourned.
News24 article : Buthelezi refused to shred report - IFP
destroy the critical report of the Van Zyl Slabbert Commission on the Electoral Act, but refused,
MP Mario Oriani-Ambrosini claimed on Tuesday.
Instead, Buthelezi, who was then home affairs minister, gave copies to university libraries around
the country "where you can find them today", he said.
"He was called back and rapped over the knuckles and he said it is fine, if you want to fire me,
fire me or get stuffed," said Oriani-Ambrosini, who served as Buthelezi's special adviser and
enjoyed top secret security clearance.
"Of all his colleagues, only I and Zola Skweyiya backed him," he said.
Oriani-Ambrosini made the revelation during a sitting of the ad hoc committee drafting the
contentious protection of information bill to illustrate a problem with its definition of public domain.
It outraged ruling party MPs who warned that he was breaking the law and that they did not want
to hear any more.
"I'm concerned about whether what you are putting in the public domain is already out there. If it
is not, then I cannot allow you to disclose it in here. It might be complicit to an unlawful activity,"
said ANC committee chair Cecil Burgess.
"If these things are classified there, I cannot entertain it here. Therefore I am going to rule that
you must withdraw that information and I will take an opinion on it."
Oriani-Ambrosini confirmed that he was indeed making public classified information, but said he
was protected by parliamentary privilege.
"It is a piece of classified Cabinet information covered under the Secrecy Act which I have the
privilege under the Constitution to disclose to this committee because it is a submission to a
committee and as such is privileged."
He said he had made the point to show that if the bill became law as it stood, any fellow MP who
made a note of what he had disclosed would be deemed to be in possession of classified
information and imprisoned.
"In terms of the bill, if it were law, each of you would have to go to prison for 15 years... because
information is being transferred and the mere possession of that information is a crime.
"Let's assume that you are shocked, as you should be, and you are going to seek a legal opinion.
You are going to convey that piece of information to somebody else. Now conveying a piece of
information, it's another 20 years."
These remarks drew another reprimand from Burgess, who lamented the provocative manner in
which the IFP MP had sought to make a point.
"The way you put it across was in bad taste. People who have security clearance should not
behave in the manner in which you have behaved."
Dene Smuts, of the Democratic Alliance, said she stood with her opposition colleague in fighting
untenable provisions in the bill which criminalised and harshly punished possession of classified
information, but that his legal argument was flawed.
If Oriani-Ambrosini was seeking to extend the definition of public domain so as to absolve those
who subsequently dealt with leaked secret information, his attempt would fail in coming up
In Independent Newspapers v the Minister for Intelligence Services and another, the court found
that whether or not a classified document "has been disclosed to some degree in the public
domain is a relevant, but not decisive factor in determining whether the document deserves
It went on to state that a leaked confidential document does not summarily lose its classification,
because this would encourage people who would benefit from their misconduct.
The bill gives the state far-reaching powers to classify information as secret and has been widely
described as a throwback to the apartheid era.
Amid a public outcry last year, the state security ministry removed two offending provisions,
including one allowing classification in the national interest.
Concerns remain over the right it gives hundreds of organs of state to classify information and the
lack of public interest defence to protect the media and whistleblowers.
In a surprise move, ANC MP Vytjie Mentor on Tuesday said the committee should debate the
question of a public interest defence as it could clear a major obstacle in finalising the bill. Her call
drew a lukewarm response from Burgess.
The Van Zyl Slabbert Commission found that
accountability and proposed a system akin to the local government model, which combines
constituencies and proportional representation.
- We don't have attendance info for this committee meeting
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.