Protection of Information Bill: deliberations on Clauses 2 and 3

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

23 May 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The State Law Advisors summarised the consequential amendments made so far to the Protection of Information Bill, following the Committee’s agreement to substitute “national security” for “national interest” and to delete clauses 11 and 12. Members discussed whether the new drafts should contain all options proposed by the parties, but the Chairperson ruled that the Committee’s earlier decision to include all options was probably incorrect, and that instead Members should try to reach finality on each clause as they went through the Bill, although the final voting on the whole Bill would take place after that. The opposition parties commented that this was not the approach taken by other committees, since decisions on later clauses may alter the thinking on earlier clauses. The Chairperson countered that if necessary, Members could revisit their decisions on previous clauses. The IFP in particular indicated, in respect of clause 3, that it wished to reserve the position because it wished to see what checks and balances were introduced later in the Bill. It was agreed that whether references to “personal information” would be included, would be flagged for further discussion.

In respect of clause 2, the ANC proposed that subclause (j) should be deleted. The DA proposed that subclause (j) should not be deleted, but agreed with the ACDP proposal that instead it should be amplified by addition of the wording “and any other legislation”. In addition, the DA proposed that subclauses (a) to (c) should be deleted. The ANC did not agree with the DA and ACDP positions on subclause (j), saying that the Bill made adequate provision elsewhere for the position of the National Archives, and for harmonisation with PAIA. The IFP did not believe that it was the correct approach for this Bill to deal with harmonisation, as that was an administrative function, and therefore supported the deletion of (j). The IFP member asked that perhaps clauses 7 and 2 should be discussed together, because its comments on clause 7 affected clause 2 also, but the Chairperson ruled that the proposals should be made when discussing clause 7. The DA gave an alternative proposal that instead of making the Bill applicable to all organs of State and then allowing the Minister to exempt some organs, it might be possible to make it applicable only to security services, and then allow any other government departments to apply for inclusion if necessary. This did not find support from the ANC. Both the DA and ACDP proposals did not find support, and it was resolved, by the majority, to delete subclause 2(j).

The ANC then put its proposal that clause 3(3) should be worded “determine that a part of an organ of State could be recognised as a separate organ of State, as specified by the Minister”. However, the Chairperson pointed out that there were some aspects of application to oversight bodies that were still under consideration, so the ANC reserved the right to revert with any necessary further suggestions on this clause, once the position was clearer. The DA, with ACDP support, proposed that clause 3 should be amended to read that this Act should apply to security services, as contemplated in Chapter 11 of the Constitution, International Relations and any other government department that could justify the need to classify information because this was necessary for the protection of national security. The IFP did not believe that the Bill should apply to entities, but to types of information, and therefore proposed that the Bill should apply to anyone who was in possession of information requiring classification. The ACDP questioned, and received confirmation from the ANC, that other proposals from the ANC, in relation to exemptions, as contained in an earlier position paper, were no longer being proposed. It was pointed out that, had the other parties known of this, their position might have been different. The ANC noted that it wished to ask that the meeting be adjourned, to allow for consideration of some of the points raised. The Chairperson noted that he had encouraged the ANC to draft another document setting out the proposals that it would now be making on all clauses.

Meeting report

Protection of Information Bill: Further deliberations
The Chairperson noted that a new draft of the Protection of Information Bill had been produced by the Office of the Chief State Law Advisor (OCSLA), which incorporated the amendments agreed during the last session.

Ms Xoliswa Mdludlu, Principal State Law Advisor, Office of the Chief State Law Advisor, noted that both the short and long title had been amended. No further changes had been made to the preamble. Clauses 11 and 12 had been deleted. She said that no changes had been made to the definitions clause. She noted the possible options for clause 2(j).

Ms M Smuts (DA) noted that she ha also moved an amendment that sub-clauses (a) to (f) be deleted, although it was not decided upon. She asked why that was not included as an option.

The Chairperson noted that the alternative was in (j).

Mr S Swart (ACDP) confirmed that this was an option. He suggested that perhaps it would have been easier to make reference to all proposals made.

Mr L Landers (ANC) agreed that there was no harm in including these, as long as it was clear which had been agreed upon, and which remained for discussion

Ms Mdludlu continued that there was a proposal to insert a new paragraph (c), but this had not been put in because it was not in the original Bill.

Mr Swart proposed that, once again, that should be included as an option.

Mr Landers agreed that because (c) was not in front of the Members, it was difficult to discuss it. He agreed that all options should be put in the Bill.

Ms Smuts pointed out that there had been, during the last meeting, some concerns about the possible tautology in referring to organs of State, and then also to security services. The discussion was far from reaching the point where a finalised option could be included.

Mr Landers pointed out that all the options should be included to enable continued discussion.

Ms Smuts asked if the DA’s position, as contained in the formal list of DA proposals, could be included so that it did not become lost.

The Chairperson did not think there was any point in duplicating the parties’ proposals into the Bill now. He asked Members to focus on the consequential amendments, and the removal of commercial interest references.

Mr Swart noted that he had thought the consequential amendments were already clear. At the last meeting, the ANC proposals were yet to be finalised, and he asked for discussion on the process forward.

The Chairperson said that all Members should be familiar with the proposals of the other parties. He thought they had been studied and debated.

Ms Smuts agreed that there had been no finality on the discussions of the ANC proposal, as there had only been discussions up to page 3. Mr B Fihla (ANC) had suggested at that meeting that there was a need to adjourn so the ANC could reach a common approach. She suggested that it would be useful to resume discussions from this point.

Mr Swart added that at the last meeting the ANC had said it would revert to the Committee on the ANC proposals. There had been constructive discussion, and highlighting of possible problems, and he agreed that it would be useful to continue with the process.

Dr M Oriani-Ambrosini (IFP) said that the documents placed before the Committee did not necessarily translate into direct amendments. He endorsed Mr Swart’s views, and suggested that perhaps the State Law Advisors could be asked to produce a document with options, teasing out textual amendments to the bill. That would allow for faster deliberations.

The Chairperson asked the State Law Advisors to continue summarising the consequential amendments.

Ms Mdludlu noted that these included the removal of Chapter 5 (clauses 11 and 12), and the change of “national interest” to “national security” wherever it occurred. No numbering changes had been effected yet. She highlighted the changes to clauses 15(1)(a) and (b), clauses 15(2)(a) and (b), and clause 15(3)(a)and the deletion of subclause (b).

Ms Smuts asked why “personal information” had been left in, in the working document. She thought these references were to be deleted.

The Chairperson said that his directive to the State Law Advisors had not covered personal information.

Dr Oriani-Ambrosini also thought that the Chairperson had asked that this Bill should only deal with State security.

The Chairperson said that this should be flagged for further discussion.

Ms Mdludlu continued to point out the amendments to clauses 17(1)(a), (d)(ii), and (j). Clauses 20(b), and clauses 21(1)and (2)(a) also contained consequential amendments. The deletion of “interest” and insertion of “security” were indicated in clauses 46(1), (9), and (10). Clause 48(1)(f) had been deleted.

The Chairperson said that the proposal to include a reference to the Constitution in the Preamble was not finalised.

He said that perhaps it was incorrect, at the last meeting, to ask that options be included for further discussion. There were likely to be times when consensus was not possible, and suggested that when this happened, a formal proposal should be made and voted upon for that clause. It would, in his view, be inappropriate for the State Law Advisors to prepare wording for proposals that would be debated again. The purpose of circulating the position papers was to inform all Members of other parties’ views. Some proposals – such as the broad scope of the Bill – had already been debated in full. He added that the ANC was of the view that international best practice did not support a public interest defence, and did not see why concessions should be made on this, and therefore asked whether there was any point in continuing to debate this.

Dr Oriani-Ambrosini asked for clarification as to what Members should do if they believed a statement was being made that was factually incorrect. He noted that a public interest defence did exist in Canada.

Mr Swart said that he held strong views that in fact international practice – such as Canada – did support a public interest defence. However, he wanted to speak to the process. He reiterated that at the last meeting the Committee had been going through the ANC proposals, and he had asked for clarity because one of the phrases had not included a verb, and it was said that this would be provided. It was not the intention to insert every option from every party.

Mr Landers noted that he was not at the last meeting, but that the ANC was ready to proceed with formal consideration, clause by clause. There would be agreement on some clauses, and others where there would not be a final agreement, but he saw little point in belabouring differences and disagreements, and suggested rather that the Committee proceed with clause-by-clause deliberations.

Ms Smuts said that the ANC document, unlike that of the DA, had not proposed formal amended wording for clauses. She thought that it would be acceptable to go through each clause and then discuss points as they arose, but stressed that this should take the form of discussions, rather than formal motions and voting. She added that the discussion on the new definition of “national security” needed further debate. In regard to the public interest defence, she said that there was apparently now a proposal from the Canadian Senate for a different type of public interest defence. Not all the comparative studies had been presented.

The Chairperson said that section 15 of the Canadian legislation did not apply generally, but was limited to members of the security industry. The SA Whistleblowers Act contained something similar. The proposal that she had referred to was not likely to be implemented in Canada; it was an old proposal that had already been rejected.

The Chairperson then addressed the process. He said that proposals on clauses could be put as the clauses were discussed. At some stage there needed either to be consensus, or voting. The State Law Advisor would then revert to the Committee with the A-list of amendments for confirmation by the Committee. Thereafter, the Committee would vote on the whole Bill and any alterations needing to be made could be effected. That was a standard procedure that had always been followed. At the last meeting, there had been an attempt to capture all the versions, but reiterated that he would prefer not to include all options but follow the procedure just outlined.

Dr Oriani-Ambrosini said that the minority should always be entitled to a fair presentation and a fair debate. He noted that there had not been a debate on public interest.

Mr Swart noted that the Chairperson had said that what he had outlined was the usual Parliamentary process, but, with respect, suggested that this was not how all Committees had dealt with matters in the past. Because Members needed to understand the implications of amendments and consider the consistency of the whole Bill, past committees had in fact suggested options as they were going through, and had therefore gone through an entire bill, before doing any voting. He agreed that there were some issues on which there would not be agreement. However, he was firmly of the view that it was not correct to vote on individual clauses before seeing how the entire Bill fitted together. This was the first time the Committee was discussing the clauses in the Bill.

Ms Smuts agreed.

The Chairperson suggested that this analysis of what was done in the past was not quite correct, and pointed out that he had not said that there would be no debate.

Mr B Fihla (ANC) said that the opposition parties felt that there had not been enough debate and discussion. There were several occasions when the opposition parties’ viewpoints had been accommodated.

The meeting was adjourned at this point, to allow Members to attend another meeting.

On resumption of the meeting, the Chairperson asked the Committee to commence discussions on clause 2.

Clause 2
Ms Smuts asked whether, despite having agreed that the definitions would be considered last, the definition of “national security” could be considered at this point.

Mr Landers said that he was prepared to make some formal proposals on clause 2.

The Chairperson noted that Members had already agreed that it would be more appropriate to deal with the definitions later, and asked that Members should abide by this, and proceed with clause 2.

Mr Swart asked if the proposals and three options on clause 2 were still on the table.

The Chairperson confirmed that they were.

Mr Landers put the ANC proposal that clause 2(j) should be deleted. The reference to “harmonise” was not appropriate, as the listing of legislation was neither comprehensive nor inclusive. The ANC considered that it would be preferable to leave out this subclause.

Mr Swart thanked Mr Landers for clarity on this proposal, which was not previously understood as the sentence in the written document was not complete. He reiterated the ACDP’s proposal, that instead of deleting (j), the words “and any other law” should be added to it.

Dr Oriani-Ambrosini agreed with the ANC’s proposal, but for different reasons. He said that it was not the purpose of this Bill to harmonise laws as this was an administrative function.

Ms Smuts gave the DA’s view that it would not like to see subclause (j) removed. She said that the National Archives and Records Service of South Africa Act (the National Archives Act) was important, as it had special application to “valuable” information, which was not the same as information that may not be disclosed. The National Archivist had the duty of the proper management and care of public records, and ran the system, and there was good reason to retain the reference to it in this Bill. She also agreed that Mr Swart’s proposal to add “and any other law” would not create any problems.

Dr Oriani-Ambrosini said that Ms Smuts was correct that the National Archives Act did prescribe how things were to be kept, but did not set out how the National Archivist would decide upon the matters. Ms Smuts herself had suggested that this bill should apply to intelligence matters only. If that approach were to be followed, then it would not be correct to refer to other legislation in the Bill. He did believe that there was a need for legislation to identify what needed to be kept, and each organ of State must make that evaluation. Those guidelines should not be given by the Minister of State Security.

Mr Landers said that clauses 26 and 27 of the Bill already provided for the role of the National Archives. There was no suggestion that reference to it would be removed altogether. Clause 28 also set out the process for the request for classified information. He believed the issues raised were adequately catered for.

The Chairperson said that, as pointed out by Dr Oriani-Ambrosini, it was not possible to list all laws that might need, now and in the future, to be harmonised. The drafters had taken the National Archives’ position into account and he agreed that there was adequate provision for it in other clauses. No indication was given during the public hearings that there was any conflict between the Bill and the present law. He agreed that there was no harm in removing (j), since sufficient consideration and protection to issues under the Promotion of Access to Information Act (PAIA) and the National Archives Act were contained elsewhere.

Ms Smuts said that clause 7(5) also referred to the National Archives. She added that the DA’s other proposal for this clause was to delete subclauses 2(a) to (f), and then to retain the rest, including (j).

The Chairperson pointed out that if these subclauses were deleted, the application of the Act would be reduced.

Ms Smuts put the DA’s position that it was unconstitutional to try to cover all organs of State.

The Chairperson asked her to comment upon the applications for exemption.

Ms Smuts said that instead of making the Act applicable to organs of State in general, and then allowing the Minister to exempt some organs, another approach would be to make the Act applicable only to security services (rather than intelligence services), and then allow government departments, if they saw fit, to apply for inclusion. For instance, she had recently noted that the Department of Science and Technology did need to classify a number of documents.

The Chairperson asked what difference this would make in practice. As the Bill was presently worded, institutions not wishing to fall within the Bill’s ambit would apply for exemption.

Ms Smuts answered that at the public hearings, it had been argued that the “blanket” application of the Bill was unconstitutional, and impinged upon the duty of the State to be open, transparent and accountable, and was against the values set out in the Bill of Rights. Such a wide application also raised problems around legality and commercial good governance. In addition, the Minister may or may not grant exemptions, and this could encourage abuse. In contrast, if an organ of State had to apply for inclusion, it must justify and give reasons why it believed it was necessary for it to classify documents, and the relevant Minister would then have to justify why the material or projects to be classified could affect “national security”. It also would tie in with the justification on the thresholds and potential harm.

The Chairperson stressed that although Ms Smuts and the DA may have their opinions on constitutionality, the State Law Advisors had given their view that the Bill was constitutionally correct. He did not want the media to get the impression that the Bill “was unconstitutional”.

Ms Smuts said that she was allowed to hold her own opinions on this issue.

The Chairperson asked why she considered that there would be difficulties if organs of State simply had to apply for exemption.

Ms Smuts said that her main concern was the potential abuse of power. In the past, there had been huge over-classification, and she did not want to encourage continuation of a culture where things were hidden rather than open, nor the potential for abuse of power. She thought that perhaps this was a drafting mistake, and that the Bill should not apply beyond the few obvious instances, rather than opening the situation even wider than it had been in the past.

Dr Oriani-Ambrosini put the IFP views, noting that all Members surely must share the values of openness and transparency. The real issue was how to achieve this. The first check or balance would arise from agreement on what could be classified, and sufficient restrictions on this, as well as sufficient provisions around de-classification. The second check or balance would be agreement that the interests of the public, justice and history may be able to override the interests of the State. The third check would be a correct definition of the functions of the Minister responsible for Intelligence services, under clause 7. He suggested that it would be useful to consider the Minister being able to issue guidelines that were not binding (which Parliament could look at) and which each department would then implement in a responsible manner. He thought it was more important to place emphasis on checks and balances, rather than reducing the scope of application of the Bill. However, if insufficient checks and balances were not put in place, then he would support reduction of the scope.

The Chairperson summarised that there had already been a number of concessions, and the Committee would discuss these as it proceeded.

Mr D Maynier (DA) suggested a possible alternative. The Committee had agreed on what needed to be classified, but the question remained of who was to classify. It was agreed that institutions dealing with security and related information would need to classify information. A possible alternative might be that if the scope of the Bill were to be extended beyond security services, then an onus should be placed on the Minister to justify inclusion of any additional department. That may be a way out of the dilemma.

The Chairperson said that this was not a new issue. No one could say with certainty whether any State organ might, in the next few years, find itself in a situation where it might need to classify information. He thought that there was no problem in an organ applying for exemption now, but being able to apply for inclusion again if necessary. Parliament could not play a guessing game. A department, working with issues on a daily basis, would be able to assess whether it needed an exemption.

Mr Landers said that Ms Smuts, in saying that she had just realised that the Department of Science and Technology needed to classify, had in fact provided the counter-argument to her own objections, and shown that Parliamentarians were not in a position to say which departments must fall under the ambit of the Bill.

Ms Smuts reiterated that she did not believe it was correct to make the Bill applicable to all organs of State.

Mr Swart said that his main concern, as expressed in the ACDP’s document, was about the culture of secrecy, including problems with PAIA, and the possibility of abuse. The innocuous Ministerial Handbook, presently classified “Confidential” was one example of this. Everyone agreed that security issues did need classification for protection. He pointed out that the Court, in the recent Mail and Guardian case, had commented that some of the affidavits filed were reminiscent of apartheid-era attitudes.

Dr Oriani-Ambrosini agreed that the mindset was of concern. The real threat was regarding anyone who wanted to expose wrongdoing as an enemy. Clause 7 imposed the duty of prescribing broad categories and sub-categories of information that needed to be classified to the Minister, but also said that the responsibility of implementing the regulations within each organ of State lay with the Minister. This raised the concern that the Minister was “Minister of own affairs”. The IFP had suggested that “prescribe” should not be used, and that instead guidelines should be issued, which relevant organs of State would be bound to implement, through their executive authority. If they did so incorrectly, then they should be taken to task. A proper consideration of clause 7 could ensure that checks and balances were put in place that addressed the concerns with clause 2.

The Chairperson thought that perhaps Dr Oriani-Ambrosini was misreading clause 7. For valuable information, the Minster would be able to determine which information could be protected. Clause 7 also dealt with classification, and here the Minister would prescribe broad categories, but within those, the tests for the specific information would still need to be applied. He suggested that Dr Oriani-Ambrosini’s points could be debated further when the Committee dealt with clause 7.

Mr Fihla stressed that it was necessary for a country to be proactive to protect itself against all threats, no matter what form these took.

Mr A Maziya(ANC) agreed, but suggested that Members should consider the proposals.

Mr Maynier wanted to take issue with a point raised by the Chairperson. He thought that this Committee should name the institutions that were concerned with national security and therefore needed to classify information. In addition, a clause should be inserted so that if other departments also needed to be included, then the Minister must provide justification, to allow for any changes.

Ms A van Wyk (ANC) felt that applying for an exemption was simply the reverse of making application to be included.

Mr Maynier responded that he believed his proposal was more democratically correct because it would limit the powers and discretion of the Minister, and also limit the scope of the Bill to about five institutions, instead of about 2 000.

Dr Oriani-Ambrosini thought that the Committee should be able to define what needed to be classified. If it could not, then democracy could possibly be jeopardised. Across the world, incorrect actions by security services had been able to damage democracy. After defining matters of “national security”, the Minister should then have the power to identify broad categories. However, “national security” would be whatever government defined it to be. Therefore, this Committee had to ensure that whatever was passed by this Act could not be changed through regulations, which meant that “national security” would need to be adequately defined in the Act, not left to regulations.

The Chairperson made the point that the definitions would be left until last, so the whole question of “national security” would be addressed later.

Dr Oriani-Ambrosini thought that it was necessary to consider clauses 2 and 7 together, as they were akin to a single equation with two elements.

The Chairperson said that the original concerns about the Bill were mainly focused on the broad ambit of “national interest” and the Minister of State Security had himself suggested that this could be narrowed by substituting “national interest” with “national security”. He was concerned whether Dr Oriani-Ambrosini was now arguing that even “national security” was too broad.

Mr L Diale (ANC) thought the discussions were going around in circles. He asked the opposition parties to answer the question as to whose information the Minister should classify.

The Chairperson noted that there did not appear to be concessions from the parties. He summarised the proposals. The ANC proposed that subclause 2(j) be deleted. The DA proposed that 2(a) to (f) be deleted, but that (j) remain, with the addition of “and any other legislation”, as suggested by the ACDP.

Members voted on the proposals. The DA proposal was defeated, and the ANC proposal was carried. The Chairperson asked the State Law Advisors to reflect the deletion of clause 2(j) in a revised draft of the Bill.

Clause 3
Dr Oriani-Ambrosini put the IFP views on clause 3. He would be inclined to vote to retain clause 3(1)(a), provided that the remainder of the checks and balances were in place. However, if not, then he would not like to see the application of the Bill extended to all. He suggested that it might be useful for the Committee to consider the whole Bill to assess the position.

Mr Landers set out the ANC’s proposals on subclause 3(3). He noted that the ANC wished to include the words “determine that a part of an organ of State could be recognised as a separate organ of State, as specified by the Minister”. That would make the position clearer.

Mr Swart asked if the wording “all security services as contemplated”, which had been included in the ANC’s position paper, was also part of the proposals of the ANC on this clause.

The Chairperson noted that this proposal had been put at the last meeting. It was crucial that the Bill must apply to the security services or community, as set out in Chapter 11 of the Constitution. This allowed the President to create “institutions of intelligence”, both now and in the future, which was why all institutions created by the President would be covered. Chapter 11 of the Constitution also provided for oversight structures, and this would answer the concerns of the Joint Standing Committee on Intelligence, and the Office of the Inspector-General that they might be regarded as excluded. However, the thinking on this had not been finalised, and it was possible that the application might need specifically to include oversight bodies. He suggested, and Mr Landers confirmed, that this proposal may still need to be revised after further consultations.

Mr Swart noted that there were other points still to be considered about the harmonisation of the Defence Act and asked whether these should be included at this point.

Ms Smuts noted that the DA suggested that clause 3 should be amended to read that this Act should apply to security services, as contemplated in Chapter 11 of the Constitution, International Relations and any other government department that could justify the need to classify information because this was necessary for the protection of national security. She was of the view that this clause would pass constitutional muster. She commented, in relation to the Chairperson’s remarks, that an oversight body could not include Parliament. She said that the inability to provide a list demonstrated the problems of constitutionality, and lack of certainty.

The Chairperson pointed out that much of the debate so far had been about the restricted application.

Mr Landers indicated that the ANC did not support the DA’s proposal.

Dr Oriani-Ambrosini said that the Act should not apply to entities, but to types of information. He put his proposal that this clause should be worded simply to the effect that “this Act applies in respect of anyone who is in possession of information requiring classification”. That would mean that if an entity held information that needed to be classified, the Act would apply to that entity. If it did not, then the Act would not apply to the entity. He reiterated that if the Bill was drafted in such as way that something requiring to be classified was clearly indicated, with sufficient checks and balances, then it would be acceptable. However, as this clause currently stood, it was difficult and complex, and its application would be messy and uncertain.

Mr Swart indicated that the ACDP would support the DA’s submission. However, he reiterated his understanding that this clause should  not be voted upon as yet, and asked for clarity because the Chairperson had indicated that the ANC’s proposal on this clause was not necessarily the final proposal as other matters were still to be considered. He wondered if perhaps all the options could be considered, and even noted, and suggested that the Committee should come back at a later stage.

Mr Swart asked whether the ANC, as set out in its position paper, was also proposing something on the exemptions.

Mr Landers repeated that the ANC’s proposal, was that, in order to avoid imposing onerous classification responsibilities on the entire organ of State, a part of an organ of State could be recognised as a separate organ of State, as specified by the Minister”.

The Chairperson clarified that this proposal, put at this meeting, represented the ANC’s views.

Mr Swart noted that he was questioning the issue because the ANC’s previous position paper had included other items, and on the basis of that position, the other parties had formulated their own positions.

Mr Maynier asked why the ANC’s previous position, as set out in the position paper, had changed.

Mr Landers said that the ANC had changed its view.

Mr Maynier asked why this decision had been taken.

Mr Maziya responded that it was entirely up to the ANC to decide what it wanted to propose.

Mr Swart appreciated that the parties must have a right to change their position. However, he noted that it would have been useful for the other parties to have had sight of the new proposals. The original wording proposed by the ANC in the position paper, in respect of 3(4), allowing for applications for exemption, now no longer formed part of the ANC’s proposal. Although he was also mindful of the difficulties in constantly re-opening debates, parties must also be aware that there were implications to others when their positions changed, as the comments set out on page 3 of the position paper, in relation to subclause (4) affected positions taken on the narrow or broad application. He said that it would be useful if all parties could receive a document that reflected the latest change in position of the ANC.

The Chairperson confirmed that the ANC had decided not to proceed with what had originally been set out in that position paper. He also noted that he had given his assurance that the Committee would reconsider this clause should the need arise. He noted that there seemed to be little support for the narrowing of the Bill as proposed by the DA.

Dr Oriani-Ambrosini said he was reserving his position. In principle, he would not have a problem with a broader application provided that sufficient checks and balances were put in place, later in the Bill. If not, then he would not support the broad application.

The Chairperson asked if this clause should be put to the vote, or whether the opposition parties accepted that there was not sufficient support for their position.

Ms Smuts said that she would regard it as problematic if a vote was taken now, that was binding.

The Chairperson emphasised that the ANC was reserving its right to suggest further changes, should there be a need to do so.

Ms Smuts asked if the Chairperson would, for this clause, entertain the idea of having options inserted, even if there were to “an interim vote”, so that the position of the DA was still on the table.

The Chairperson said that his own view was that issues such as the broad or narrow approach, and even the public interest defence, were all policy issues upon which all political parties had to decide. His own view was that the DA’s proposal, on the basis of the arguments presented, did not find support. However, if at a later stage the DA could put up different or further arguments that might persuade the ANC to accept it proposal, then it could do so. However, at this point, the ANC clearly did not support the proposal, and there was little point in getting stuck on this issue. He suggested that Members should move on, and accept the concession that the clause could be considered further.

Ms Smuts wanted to have it placed on record that the ANC could not try to stop the DA from raising and arguing the point again.

Mr Maziya was not sure if that was a correct interpretation of the Chairperson’s remarks. He suggested that if all Members were participating in the correct way, then there should be agreement on matters where there was clearly no support for the contrary view. Once a vote had been taken, it would be regarded as binding, unless there was a real need to address issues not previously discussed, and unless a new argument was raised that could convince the Committee to re-look at the issues. He suggested that all discussions should be undertaken in a constructive manner, and expressed his perception that some Members seemed simply to want to delay the progress of this legislation. Since this morning, only one clause had been discussed.

Dr Oriani-Ambrosini questioned what the purpose of voting was. If, as he thought, it was merely to confirm what the State Law Advisors should include in the new version, then he disputed that there was a need to vote and suggested that this clause should merely be left open, and that the Members should move on.

The Chairperson did not agree with this assessment of the position.

Dr Oriani-Ambrosini said that the Committee was not at this point seized with clause-by-clause voting.

The Chairperson clarified that Ms Smuts’ interpretation was also not quite correct. He had said that her arguments had not persuaded the rest of the Members to accept her proposals, and that unless she was able to come up with different and more persuasive arguments, it was unlikely that she would find support.
He asked whether it was necessary to put this clause to the vote, given the ANC’s unwillingness to concede the point.

Mr Swart said he still did not understand how the Chairperson could suggest that this clause could be finalised immediately. All parties had exchanged documents, setting out their views, but the ANC document was being changed as matters proceeded, and the original proposals around applications for exemption therefore did not apply any more. It was unfair that not all parties were on the same playing field, and every party needed to have sight of any new written submissions.

The Chairperson commented that either there was confusion or a deliberate delaying of the matter. The ANC had now clearly set out its position, that nothing put earlier applied any longer, and its position was now set out in the proposal by Mr Landers.

Mr Swart assured the Chairperson that he was not attempting to delay the process. He asked whether the Committee was coming back to discuss subclause (c), in relation to security services.

Mr Maziya asked for an ANC caucus on the matter. A short adjournment was granted.

On resumption, the Chairperson summarised that the ANC had indicated that its Members would like to look at some of the issues raised. They also wanted to consider a procedure that was less confrontational, so that simple alterations and amendments could be finalised with less delay. It had therefore requested that the meeting be adjourned. He had encouraged the ANC to prepare and hand out a document containing all the amendments that the ANC would be proposing in the next meetings.

The Chairperson summarised that clause 2 would be amended. Clause 3 would be discussed again on Thursday 26 May.

The meeting was adjourned.



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