Protection of Information Bill: Review Panel, clauses 17 and 21, & 22

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

24 July 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Committee continued with deliberations on the Protection of Information Bill (the Bill). The ANC presented re-drafted proposals for the new clause on the Classification Review Panel (the Panel). One of the problems with the previous legislation was that it had not catered for declassification of information, and this would be a function dealt with by the State Security Agency (in the case of defunct organs of State) and existing departments, subject to review by the Panel. The ANC had considered the suggestions of the opposition parties for the Panel, and agreed with many, particularly in relation to the composition of the Panel, the expertise sought from Members, and their South African citizenship. However, it suggested that there was no need for involvement of the Portfolio Committee on Justice, despite the fact that it currently exercised oversight over the working of the Promotion of Access to Information Act (PAIA), since the Joint Standing Committee on Intelligence would be holding open sessions for the appointments and, wherever possible, the reviews, and would also be reporting annually to Parliament. The ANC believed firmly that all members of the Panel must be vetted. Members noted that there would be a huge volume of documents to be de-classified and the Panel might have to act full-time. The DA and ACDP questioned what powers the Panel would have and what it could do if its recommendations were not followed by organs of State. The ANC suggested that non-compliance could be included in the offences section, and pointed out that because the application of the Bill had been narrowed, few officials were now reporting, and that the portfolio committees would have to play a strong oversight role over departments who failed to comply. The DA suggested that the Panel could undertake broader investigations, if random sampling indicated a problem, and that the Panel could also perhaps call for written reasons. Although parties agreed that the Panel should be able to refer the matter back for reconsideration by the classification authorities, they were not in agreement that the Panel could, as initially suggested by the DA, substitute its own finding. All Members agreed that the Bill should also try to ensure that any attempts to classify to hide corrupt or illegal activities should be strongly sanctioned. Members agreed, after further discussion, that there was a need to consider whether the decisions of the Panel should be regarded as binding, and of a quasi-judicial nature, and the State Law Advisors were asked to give an opinion on this, and to suggest some possible wording that would ensure that the Panel was not a toothless body.

The ANC then made proposals on clauses 17 and 21. The IFP had earlier expressed the view that clause 21 should be deleted, as it seemed to be inconsistent with clause 17. The ANC proposed that the wording of clause 21(2) should be incorporated into clause 17, that the heading of clause 17 should read “Conditions for classification and de-classification” and that clauses 21(1) and (3) could then be deleted. The opposition parties thought that this would be useful, but asked for some time to consider the implications, particularly whether there should be stronger tests for continuing classification. The Chairperson pointed out that this distinction was made when the Bill still dealt with both national interest and national security.

The ANC then proposed some changes to clause 22 and Members agreed that there seemed to be no reason why an organ of State should not be able to initiate its own reviews of classification at any time, rather than waiting for the ten-year status review, or for an application for access to the document, which would also spark a review. Concerns were noted about court officials leaving classified documents lying about, but this could be dealt with under clause 43.

In the afternoon session, the Chairperson requested Members of the Committee to consider the definition of ‘national security’ in the light of the proposed amendment to combine clauses 17 and 21.

The ANC proposed amendments to clause 23, in line with section 46 of the Promotion of Access to information Act.  The proposed amendment was welcomed by all parties, with the proviso that the amendment did not affect the public interest defence.  The written proposed amendment would be made available to Members prior to the following meeting of the Committee.

The ANC proposed that clause 24 was omitted as the obligation placed on the applicant was too onerous.  The proposal was agreed to, with the proviso that provision was made for the reasons for the refusal of an application to declassify information was included elsewhere in the Bill.

The Committee agreed to consider the amendments to the provisions dealing with the status review procedure before proceeding to the clause covering the appeal procedure.

Meeting report

Committee Programme
The Chairperson noted that the Committee would be meeting all week. He commented that the public hearings on the Protection of Information Bill (the Bill) had been held one year previously. There had been much interest in the Bill, and some important and convincing arguments had been put forward both at that stage, and in subsequent engagements. A number of important proposals had been tabled. He emphasised that public hearings were held to inform Parliament of public concerns, which were considered most seriously. This law would probably not please everyone, but the Committee had come a long way already. One of the major breakthroughs was to limit the application of the Bill, so that it no longer applied to all organs of State. The ANC had stressed that this Bill should not be used to protect unlawful or corrupt acts, and nobody wanted to see the Bill abused. He urged that the work done by the Committee should be recognised, including the substantial changes made.

Mr L Landers (ANC) noted that the Portfolio Committee on Justice and Constitutional Development (Justice PC) had received a Bill dealing with the extension of office of the Chief Justice. Seven submissions had been received, and the Committee had set aside the following day for public hearings, and hoped to finalise this Bill on 2 August. However, civil society had proceeded with a court action, and the Constitutional Court was likely to hand down judgment this week.

The Chairperson asked if the ad hoc Committee could commence its deliberations after the public hearings, at 16:00 on Tuesday 26 July. For the remainder of the week, the meetings would commence at 09:00, for the full day, although it might not be necessary to sit on Saturday. The revised programme would be circulated.

Protection of Personal Information Bill: continuation of deliberations
The Chairperson summarised that clause 2 would now need to be reconsidered, following the ANC’s proposal to restrict the application of the Bill. Clauses 14, 18, 19(6), 21 and 22 needed further discussion.  Clause 15 had been agreed upon, save for the removal of the reference to “security”. The proposals mentioned at the last meeting would also need to be detailed, particularly the application clause.

New Clause: Classification Review Panel
Mr Landers said that the ANC would also like to address the Committee on the new clause, and clauses 21 and clause 22 (as numbered in the original Bill). He noted that prior to the 1982 law, which was now being repealed, the Official Secrets Act, copied from the British law, had applied. One of the difficulties with the previous legislation was that it did not provide for declassification of information. No doubt any constitutional challenges to that legislation would have succeeded, but in the absence of such challenge, the Minimum Information Security Standards applied, which State departments followed. There was therefore now a large body of information whose classification had never been reviewed. Minister Lindiwe Sisulu, formerly Minister of Intelligence, had indicated that any new legislation would have to deal with declassification, as formerly classified documents could not simply be declassified without a proper process that ensured legality. This was the reason for the Classification Review Panel (the Panel). The ANC had given careful consideration to the opposition parties’ suggestions, and found favour with many. There was general agreement that there should be five members on the Classification Review Panel, and it was agreed that they should be appointed after public interviews conducted by the Joint Standing Committee on Intelligence (JSCI). He noted that when the JSCI interviewed candidates for the position of Inspector-General, this was done in an open forum, and the same procedure would be followed for interviews for the Panel. There was also agreement that the members must be South African citizens. They must be suitably qualified, with at least one to have expertise in constitutional law, one to have an understanding of national intelligence matters, and one to have an understanding of archive matters. The ANC suggested that the Chairperson should have senior legal qualifications.

The Panel would deal with reviews, status reviews, and declassification. The Panel itself would not do the classification, but make recommendations and the appropriate classification authority must then attend to the classification procedure. It would deal with the 10-year reviews, and would do reviews on the work done by the affected organs of State during each financial year.

The ANC stood by its view that the members of the Panel must undergo a security vetting process.

The Panel would have to submit an annual report on its activities, through the JSCI, to Parliament.

The other provisions were fairly standard, relating to the meeting procedures, the time periods within which heads of organs must submit reports, deliberations and conduct of the panel, and the random sampling methods to be employed when reviewing compliance.

Mr S Swart (ACDP) appreciated the input, and said that it would be useful to get a document with the ANC’s revised wording. The ACDP had proposed involvement of the Portfolio Committee on Justice and Constitutional Development, and he asked for comment on this. He also thought that the question of vetting needed to be further discussed, although he did fully appreciate that many of the documents coming under scrutiny by the Panel would be classified.  He sought clarity on the status of the reports, if the JSCI was to deal with the matters. He noted that the parties seemed to have similar views on the Panel. The Panel was likely to have a huge amount of work, particularly around de-classification, and this might need full-time members, which would have budgetary implications.

Ms A van Wyk (ANC) answered Mr Swart’s question on the involvement of the Justice PC. This had been suggested because of concerns around the openness of JSCI processes, and she suggested that this issue had now been addressed.

Mr Landers added that in addition to the proceedings of the JSCI being open, in this instance, the ANC had thought that it would be too complex to involve yet another portfolio committee. The Panel’s Annual Report would be tabled in Parliament, and the JSCI should deal with that.

Mr B Fihla (ANC) commented that the involvement of another committee would be cumbersome. If the Justice PC was involved, the Members of that committee may also need to be vetted.

Mr D Maynier (DA) shared the view that the parties were of similar mind. However, he asked what level of vetting was under consideration. He also asked what powers the Panel would have and what it would do if it discovered that functions were not being performed.

Mr Landers answered that non-compliance could be dealt with in the offences section. This was a situation similar to non-compliance with the suggestions made by the Auditor-General to departments. The recommendations of the JSCI would eventually rest with the Minister of State Security, and he reminded Members that the scope of application of the Bill had now been narrowed considerably, so that only those departments dealing with security and intelligence would report to the Panel. The portfolio committees that had oversight over those departments would play a role if there was departmental non-compliance.

Mr Landers then dealt with the vetting. The five members of the Panel would be dealing with information that included the Top Secret level, and they could clearly not do this without having been vetted. The advertisement would state that a person who was appointed would have to be vetted. The ANC would not compromise on that.

Ms van Wyk added that every member of the Panel would have to have access to documents. She urged that Members should not see vetting as having anything to do with political loyalty. She commented that several State employees, including the State Law Advisors, were vetted, and that a more open-minded approach should be taken. She suggested that it might be useful to get an explanation on what vetting actually involved.

The Chairperson stated that all Members of the JSCI were vetted. There was no suggestion that Members of Parliament who were not dealing with these kinds of matters should be vetted.

Mr Landers then moved to the removal of Members from the Panel, indicating his agreement with some of the wording suggested by Mr Swart. The Panel’s role was becoming more important as discussions on the Bill proceeded, and thus there was a need to amplify the original Bill.

The Chairperson noted that the ANC had suggested that a person could not be appointed if he/she had been declared by a Court to be mentally ill or disordered. He wondered if those not subject to such a Court order, but who might still have a mental disorder, could apply.

Mr Swart said that this proposal differed slightly in wording from his proposal, which had drawn on the wording of other existing legislation and he wanted to consider the import of the wording “mentally ill or disordered”. He wondered if the State Law Advisors could look into that. He also noted that other wording suggested by the ACDP had attempted to harmonise with the Promotion of Access to Information Act (PAIA), hence the suggestion of involvement of the Justice PC, although he did appreciate that this Committee already had a substantial amount of its own work. He appreciated concerns around the necessity for vetting if Members were to deal with Top Secret matters. He asked for some time to compare the revised ANC wording with the past suggestions.

Mr Swart noted that he agreed with the proposals on the expertise that was sought on the Panel, but asked whether the wording in subclause (5)(b) should not be “and” rather than “or”.

Mr Landers confirmed that this was an error; the last word of the subclause should read “and”.

Mr Maynier suggested that the involvement of the Justice PC should still be considered, for two reasons. Firstly, the Justice PC had oversight over the South African Human Rights Commission (SAHRC), which was responsible for administering PAIA. Secondly, this PC routinely met in open session, as opposed to the JSCI, and if it was involved, it was likely that more open sessions would be held.

Ms M Smuts (DA) referred to Mr Maynier’s earlier question as to what would happen should the Panel find that a department was non-compliant, and noted that the ANC’s suggestion to include something in the offences did not fully address the question. The five panellists would check for compliance with classification criteria. If, after having done their random sampling, they found non-compliance, she asked what procedure they should then follow. She suggested that they could do a broader investigation, to check whether the problem was systemic, or that they could require those doing the classification to provide written reasons. If there was a systemic problem, she asked if the Panel would then require the executive to answer on why there was not compliance, and whether the Panel could set aside the mis-classification and substitute its own decision. This was effectively a review function, and the Promotion of Administrative Justice Act (PAJA) would apply. She asked if the State Law Advisors (SLAs) could look at the administrative implications. She added that the criteria for continued classification were currently more stringent than original classification requirements, so the Panel would be applying the stricter test.

Ms Smuts agreed with Mr Landers that there was a huge body of information dating back to 1996 that would have to be reviewed, and suggested that either this Panel, or some other body, must deal with it.

Mr Landers responded that the Bill already set out a process for a status review. He added that only certain persons had authority to classify. In respect of documents classified under the former legislation, the State Security Agency assumed responsibility, including for their de-classification. It was impossible simply to declare something declassified automatically. Clause 19(4) became important when the original classifying authority was no longer in existence, and here, a recommendation would be made to the Agency.

Ms Smuts agreed that clause 19 would deal with the bulk of the mis-classified matters. The problem was that the Minimum Information Security Standards (MISS) had applied across the board, and she thought each department of State would probably need to have an instruction session on what could be classified under this Bill, and would then have to work through its existing classified information, so that the head of the organ of State could re-classify.

Mr Landers clarified that the State Security Agency would handle the records of a defunct organ of State, such as the Bureau of State Security or Department of Native Affairs. Departments set up after 1994, even though they may have changed their names or composition, would still declassify their own information.

Ms Smuts pointed out that the State Security Agency used to advise, inspect and monitor, and asked how confident the public could be that the same officials would de-classify correctly, in line with the new ethos. The Panel would, however, review their work.

Mr Landers said that the classification should, hopefully, be much reduced when this Bill came into effect.

Ms Smuts asked how control would be exercised over what the State Security Agency did with defunct documents.

Mr Landers said that JSCI and Inspector General for Intelligence would have to monitor closely. He understood that there might be concerns over post-1996 documents, although it was unlikely that problems would arise over those from an earlier date.

Ms Smuts pointed out that a great deal of old information had probably already been shredded. However, she did concede that the old and new order intelligence departments seemed to have integrated well, and she would not discount their role now, although she was concerned about the mindsets.

Mr Landers appreciated this point. Information still in existence was crucial, and may affect those who had been assassinated, murdered or tortured. He did not have all the answers, and all Members would have to think carefully about this. However, he suggested that the State Security Agency, with Panel oversight, may still be the best authority to deal with pre-1994 information. Once the Panel had made recommendations, it was up to the Agency to ensure that they were carried through.

The Chairperson said that this Bill aimed to protect both valuable and sensitive information. Valuable information was information that must not be lost, distorted or destroyed, so that it was available for open access. There were likely to be few problems with this. Sensitive information was not made available openly, but he agreed that fewer organs of State would, in future, be involved in this. It was necessary to ensure that the Bill set out the correct criteria around national security, in a narrow and succinct way. He agreed that the State Security Agency would be in the best position to deal with the documents requiring de-classification, but this was really a side issue.

Ms Smuts reverted to her original questions, saying that she herself was not sure about the procedure that should follow where non-compliance was discovered. She suggested, however, that the Panel should be able to set the classification aside, and ask the authorities to apply their minds to the classification again.

Mr Landers felt that the Panel could send matters back, but would not be able to set aside the classification.

Ms Smuts asked if perhaps the State Law Advisors could comment on this.

Mr Maynier said there seemed to be agreement that where there was an indication of incorrect classification, a further investigation should be conducted to ascertain whether the problem was systemic. Mr Landers suggested that the matters should then be referred back for review by the classification authorities. However, he questioned what would happen if no such review was then carried out, or if the classification was upheld, although the Panel may not have thought it justified or reasonable.

Mr Landers responded that clauses 21 and 22 would then come into play.

Mr Swart said that both the terms “review” and “oversee” needed to be considered. He appreciated Mr Landers’ concerns about this Panel substituting its own decision, and said that this was akin to the situation where other organs of State failed to comply with the SAHRC and Public Protector rulings. The issue of non-compliance would presumably be raised in reports, but past experiences had indicated non-compliance with time periods too. He asked who would ensure that the Panel had “teeth”. The concept of an administrative review did imply that this body would actually take action. It could send a classification back, and possibly also require it to give reasons for the classification. He wanted the Committee to look more closely into the concept of “oversight” in this context. The Panel should know its own powers, and should not be a toothless organisation.

Ms van Wyk agreed that the issue of oversight was important. This was a situation similar to Parliament receiving reports from the Auditor-General. Because the report of the Panel would be a public report, responsibility would then lie with the Parliamentary portfolio committees to take further actions against the departments whom they oversaw.

The Chairperson reminded the Committee that the Head of the organ of State, or another very senior delegated authority, would be responsible for the classification, and they could be brought to account.

Ms Smuts thanked the Chairperson for making that important point. However, she said that when she had spoken of a “systemic” problem, individuals might be practising a form of classification that ended up in all their work having the same defects. She said there was a difference between administrative review and mere oversight, and the Committee would have to decide what the Panel should do. It was useful to compare the Chapter 9 institutions, but they were not a court of law and the only Chapter 9 body with any real power was the Independent Communications Authority of South Africa (ICASA), which was a regulator. The impact and effectiveness of the other Chapter 9 bodies rested with their moral suasion and impact in society. Although the Auditor-General was very effective, it was the Standing Committee on Public Accounts (SCOPA) who must take matters further. Even the Public Protector had no binding powers. In a healthy democracy, people must be held to account immediately that Parliament found maladministration. She suggested that it was correct for officials found to have acted incorrectly to resign, and that Court actions to enforce compliance should not be necessary. This was why she had asked whether the Panel would effectively be a review tribunal.

Mr Landers said that there were two possible scenarios. In the first, the Panel might make a decision, but the classification authority may indicate that it did not agree. There had been similar instances in the past, and Parliament might try, in good faith, to rely upon moral suasion, but others may not be of similar mind. The ANC needed some time to consider this point. The second scenario was that classification may be used to hide corruption, and this was much more serious. The ANC would propose that the penalties for offences should be strengthened considerably, to act as a greater deterrent against this.

The Chairperson said that where a document indicated some form of illegality, this would be already be regarded as an offence, and he wondered if there was a need to expand upon it.

Mr Landers responded that if a classifying authority disagreed with the Panel, this would not necessarily be malfeasance, and the ANC wanted to think about this further. The appeal procedure may go some way to solving the problem. If a request for declassification was denied, then an appeal could be made to the Minister. The Minister would be making some proposals under clause 25.

The Chairperson agreed that improper classification and crime were separate issues, but reiterated that if the Panel found instances where classification was used to cover up a crime, then this must be referred to the relevant authorities immediately. 

Mr Landers asked what would happen if there was merely a difference of opinion between the Panel and the classifying authority.

The Chairperson thought that was a problem around competence.

Mr Swart said this question went to the power of the Panel. If it was an oversight and review Panel, then its decision should be binding on the organs of State. It may be necessary to insert a clause to state that the decision of the Panel was binding, similar to a higher court whose review of a case was binding on the lower court.

Ms Smuts said that the incorrect finding would then have to be set aside.

Mr Fihla suggested that the Panel should be able to set aside a decision.

Ms H Mgabadeli (ANC) said that this illustrated the need to ensure that the Panel could do its work as set out in the Bill.

Mr Swart said that of course it must be borne in mind that equally the Panel could tell an organ of State to raise the level of classification. He asked if the decision of the review Panel would be the end of the matter.

Mr Landers said that the Committee would have to think this through as a classification authority may still wish to challenge the finding.

The Chairperson asked if it was suggested that the review Panel should have the power to classify or declassify.

Mr Landers replied that it should not.

Ms Smuts disagreed and thought that the Panel should be able to substitute its own decision.

The Chairperson asked what would happen if the classifying authority disagreed with the Panel.

Ms Smuts thought the decision of the Panel should be binding.

Mr Landers amplified that Members were of the opinion that the review Panel’s finding should be binding on the classification authority. However, this would not mean that the document would be automatically declassified, but would have to be considered again by the classification authority. If the authority disagreed, it may be necessary to approach the Court.

The Chairperson said that if the order to re-examine the classification was binding, this might amount to de-classification by implication. In effect, the Panel would then itself be attending to aspects of classification.

Ms Smuts said that merely because it dealt with issues around classification did not mean that the Panel was itself attending to classification, and there should be clarity on how this was conceptualised.

The Chairperson asked that the State Law Advisors comment.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, agreed that there was a need to think this through. There was one proposal that the JSCI should consider the matter, and could also call for recommendations and take the matter to the Inspector General. She suggested that the Office of the Chief State Law Advisor look into the implications in greater detail, and revert with some proposals.

Ms Smuts said that the DA disagreed with the involvement of the JSCI at this point, and said that this related to the legal implications of “administrative review”, both in the Constitution and PAJA.

Mr Swart agreed that the Panel’s decisions should be binding. Whatever was said about the JSCI was a separate process. There must be some other models where an internal mechanism had binding powers, and he said that if the classifying authority disagreed with the Panel, then it would have to approach the Court. This meant that the Panel would have taken a quasi-judicial decision.

The Chairperson asked whether the Bill could not be worded in such a way that if the head of the organ of State did not make representations within a set period, then the order of the Panel would be regarded as binding.

Mr Swart said that it was also possible to word it so that if the organ of State failed to provide adequate reasons for the classification, then the Panel’s decision would be binding. This would answer concerns about audi alteram partem (giving the opportunity to both sides to state their case) and deal with the binding effect of decisions.

The Chairperson asked the State Law Advisors to draft wording that would capture the Members’ points.

Mr Landers confirmed that Members were generally in agreement on other issues.

Clauses 17 and 21: Directions for classification, and de-classification:
Mr Landers said that the directions for classification and declassification were currently contained in clause 17, but he also wanted to address issues arising from clauses 21.

Clause 17 was currently headed “Directions for classification” The criteria and guidelines applying to classification should also apply to the declassification, so the ANC thought it anomalous to have another clause dealing with continued classification. The ANC proposed that the heading for clause 17 should be amended to read “Directions for classification and declassification”.

Ms Smuts suggested that the word “directions” be substituted with “conditions”.

Mr Landers agreed to this. He then said that when an authority took a decision whether or not to continue the original classification, it would be necessary to look at what was in clause 17. The ANC proposed that the wording dealing with continued classification, now contained in clause 21(2), should be moved across to clause 17. Clause 17 would then form the heart of the classification provisions, and would inform all decisions to classify and continue to classify. Although this clause would then be long, the drafters could try to re-word it to make it more succinct and logical. Clauses 21(1) and 21(3) would then fall away

Ms Smuts said that her initial reaction was that this would be useful, but she would like some time to consider why the initial Bill had introduced a different test for continued classification. She had thought that this might have been done to prevent “perpetual classification” so that an authority who wanted to continue a classification for another period would need to apply a higher standard. This seemed logical, although she saw merit in Mr Landers’ proposals. She agreed that if the wording of clause 21(2) was moved, clauses 21(1) and (3) could fall away.

Mr Swart agreed with these points, and agreed that clause 17 should form the heart of the Bill, but also wanted some time to consider the implications. He was not sure whether the differences for continuing classification were justifiable.

The Chairperson reminded Members that when the Bill was originally drafted, it had referred to “national interest”, which was why the broad conditions were included in clause 17, and Members would have to look carefully at whether these were applicable to national security considerations. He agreed that it seemed inconsistent to have two different sets of criteria in clauses 17 and 21. He also reminded Members that Dr M Oriani-Ambrosini (IFP) had suggested that clause 21 should be deleted because of these apparent contradictions.

Ms Smuts thanked the Chairperson for raising this, but thought that the clause 21 wording was probably more closely allied to questions of national security.

Clause 22
Mr Landers said that the functions and establishment of the Panel had been discussed. The originally-numbered clause 22 provided for regular reviews of classified information, to be done by the head of the organ of State, every ten years, with the first period to commence on the date of commencement of the Act. The results of the review must be made public, and organs of State affected by the Bill would have to present annual reports, which must include information on the results of the reviews.

Ms Smuts asked if clause 22(4) would now fall away, in light of the earlier proposals on clause 21.

Mr Landers said that the references would be amended for consistency.

Ms Smuts said that the status of classified information must be reviewed, if there was a need to use that information. The DA maintained that information could not be presumptively closed off, and the portion dealing with the court would need to be re-written. She asked whether authorities would merely need to check that information was declassified, before it could become part of the court proceedings, or if organs of State would simply inform the Court that the information was classified and could not be released.

Mr Landers said that concerns had recently been raised about the Clerk of Court leaving classified information in an insecure place. The Courts were independent, and nobody else should interfere in their functioning. However, Top Secret documents placed before the Court could not simply be left lying around, as this Bill would criminalise similar actions taking place outside the court.

Ms Smuts wondered if this was not an administrative matter, in which case the Bill should not attempt to cater for it.

Mr Landers agreed that it was, but said it was still necessary to consider the problem. A criminal charge could be laid against the court officials in this instance.

Ms Smuts asked if this could not be dealt with in clause 43.

Mr Landers agreed that this may be appropriate.

Mr Swart then asked if it was not necessary to include a provision noting that the head of an organ of State could review the status at any time, not only at ten-year intervals.

Mr Landers said that if a person requested access to information, which was refused on the grounds that the information was currently classified, then clause 23 would come into play. It was possible for the Committee to re-word this clause, to provide that a request for information would automatically lead to a status review, rather than waiting for the ten-year period to lapse.

Mr Swart agreed. The ANC’s suggestions on revised wording for clause 22 (as contained on page 7 of the ANC document) would cover that situation. However, an organ of State might also choose to review without such a request, and he suggested that the words “notwithstanding subsection (1), the head of an organ of State may wish to review the classification at any time” could be added to clause 22.

Ms Smuts suggested that alternative wording could be “review at any time, provided that this must take place at least every ten years”.

Members agreed with this in principle.

The morning session was adjourned.

Afternoon Session
The Chairperson asked for the confirmation of the State Law Adviser on the changes requested by the Committee during the earlier discussion on the Bill.

Ms Booyse replied that proposed amendments concerning the insertion of a sub-clause in clause 22 to allow for the review of the classification status at any time and the amalgamation of clauses 17 and 21 would be submitted before the Committee’s meeting on 26 July 2011.  The procedures of the Review Panel would be reviewed as well.

Ms Smuts agreed that the changes to clauses 17 and 21 requested by the ANC could be proceeded with although the DA reserved its position on the clauses concerned.

The Chairperson suggested that Members revisited the definition of ‘national security’ while dealing with clauses 17 and 21, which were at the heart of the Bill.  There was consensus on the basic elements of the definition.

Ms Smuts said that the principles discussed in Johannesburg did not work very well.  The formal position of the DA remained that the second part of the definition needed to be worked on.  She referred to the Minister’s presentation on 22 October 2010, which had included a useful proposal.

Mr Landers said that every effort had to be made to ensure that the enacted Bill was not used to hide corruption, bribery, fraud or general malfeasance.  To that effect, the ANC proposed amendments to clause 23 and intended to introduce provisions in line with the Corruption Act, which included strong penalties if the legislation was misused to hide corruption.  He read out the proposed amendment.

Ms Smuts welcomed the amendment to clause 23, which was in accordance with section 46 of the Promotion of Access to Information Act (PAIA) and which had been included in the DA’s formal submission on the Bill.  The proposal did not exhaust the public interest defence.

Mr Swart agreed that the proposed amendment to clause 23 was a repetition of section 46 of PAIA.  The Committee needed to consider the harmonisation of the Bill with PAIA.  He pointed out that there were differences in understanding of public interest defence, which was a controversial issue and required careful consideration.

Mr Oriani-Ambrosini welcomed the proposed amendment but warned against the use of the phrase “serious violations”.  It was problematic if a public servant had to decide what was considered to be serious and implied an obligation to classify violations.  He suggested that the word “substantial” was used instead of “serious”.  The proposed amendment must not be considered to be a substitute for the public interest defence.

Mr Landers quoted section 46 of PAIA, on which the proposed amendment to clause 23 was based.

Ms Smuts referred to the remarks of the Nelson Mandela Foundation on section 46 of PAIA, which questioned the effectiveness of section 46 because it was so narrowly defined.  The DA argued that it was anomalous if the public interest override was not extended to the public interest defence, which should be defined wider.

The Chairperson cited the example of the theft of and subsequent publication of sensitive, private documents.  He asked if the person concerned should be able to use the argument that the documents were published in the public interest as a defence.

Mr Swart explained that the person would still be subject to a charge of burglary, which should be distinguished from a public interest defence.  Section 46 made provision for narrowly defined instances for a public interest defence.

The Chairperson asked if a hierarchy of crimes was being created.

Mr Swart explained that the law allowed for different criminal and civil defences.

Ms Van Wyk said that every victim of crime had the legal right to retribution.  She asked if it was acceptable if a person took the law into his own hands if the legal process did not provide recourse.  If a person applied for the declassification of information on the basis of public interest and the application was denied, he would have no legal recourse if the information was made public.  She urged the Committee to consider the broader implications of the provision and avoided looking at the clause in isolation.

Ms Smuts felt that the entities and persons that were allowed to apply for declassification were far too limited.

The Chairperson said that it was understood that the relevant provision was too restrictive.

Mr Oriani-Ambrosini referred to the provision in clause 22 that allowed for a review at least once every 10 years.  No provision was made for instances where a review was not made.  It was not clear that anyone could apply for declassification of information.

The Chairperson pointed out that the matter was dealt with by the Committee during Mr Oriani-Ambrosini’s absence from the earlier proceedings.  The documented proposed amendments would be made available to Members on the following day and he suggested that the Committee postponed further discussion until they had had the opportunity to consider the proposals.

Ms Smuts referred to clause 24 (Status review procedure).  Sub-clause (2) made provision for the reasons for refusal to be provided within 90 days.  She suggested that the period was shortened to 30 days.

Mr Landers proposed that clause 24 was omitted as the obligations placed on the applicant were too onerous.

Ms Smuts agreed that sub-clause (1) could be deleted but the Bill should include provision for the procedures described in sub-clause (2).

The Chairperson recalled that the Constitutional Court had ruled on time periods in the Brümmer case.

Ms Booyse advised that the Brümmer ruling referred to a period of 180 days before a matter went to Court.

The Chairperson agreed that clause 24 was not necessary if clause 23 made adequate provision for the status review procedure.

Mr Oriani-Ambrosini referred to clause 25 (Appeal procedure).  He suggested that provision was made for the grounds for denying a request for declassification to be indicated and that the practice of denying the existence of a document was prevented.

Ms Smuts pointed out that the issue was dealt with in clause 23 (6) and covered in PAIA.  She preferred that no provision was made for deniability.

Mr Swart reiterated that Members needed to consider the proposed amendments to clause 23.

The Chairperson said that Mr Oriani-Ambrosini had commented on the clause dealing with the appeal procedure.  There was agreement that Members would first consider the provisions dealing with the review procedure before considering the appeal process that would apply if applications for review were denied.

Mr Landers conceded that it might not have been made clear enough that an automatic review of the classification status would commence as soon as a request for declassification was denied.

The Chairperson asked when the proposed amendments would be made available to the Members.

Ms Booyse confirmed that the document would be circulated to the Members before midday the following day.

The Chairperson advised that the following meeting of the Committee would be held on 27 July 2011 at 16:00.

The meeting was adjourned.


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