Protection of Information Bill: Review Panel, clauses 17 to 23, whistleblower protection, review time periods

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

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

The Committee resumed debate on the redrafted clauses dealing with the Classification Review Panel in the Protection of Information Bill. These proposals were presented by the State Law Advisors clause by clause (as yet unnumbered), with the alterations specifically noted.

The debate opened by focusing on the Establishment of Classification Review Panel clause on page 10 of the New draft of the Proposed Amendments. The DA raised concerns about the Review Panel’s ability to access information and documents from security services. Additionally, the ACDP proposed that provisions for offences be inserted into the Bill to further deter denial of access. The ANC agreed to consider these proposals, as both sides felt this area needed strengthening.

The ANC proposed to remove sub-clause 4 and sub-clause 2 of the Functions of Classification Review Panel clause and Appointment of Staff clause, respectively, regarding remuneration, allowances, and benefits of staff, which was agreed to. This was done because the issue was better dealt with in a later clause. They also recommended changing the title of the following clause to “Remuneration of members and staff,” which was agreed to as well.

In regard to sub-clause 2 of the Constitution and Appointment of Classification Review Panel clause, the ANC felt that the previously agreed upon changes were not captured in the redraft. This sparked debate on what the wording should be concerning the filling of vacancies on the panel. The ACDP recommended the Constitution’s language on Chapter 9 appointment procedures as a model for sub-clause 2. The DA stated that such procedures should not be a matter of convenience and should avoid allowing ministerial discretion. The ANC proposed changing sub-clause 4 of the clause to read “at least ten years legal experience”. The redraft had not specified “legal,” and the change was agreed to. The IFP expressed discontent with the language of sub-clause 5(a), but it was decided to keep the wording as it was written. Also for this clause, the ANC proposed adding wording that would ensure vacancies would be filled as fast as reasonably possible while not invalidating the work of the panel. The Committee agreed to insert the amendment and would revisit the issue later.

The IFP raised concern over the wording of sub-clause 1(h) in the Disqualification of membership clause. However, the ANC and the DA both felt that the language accurately reflected the Committee’s vision. They argued that the Conviction exception offences covered the IFP’s concerns.

After adjourning briefly, the Committee discussed the pace at which the meeting had been progressing. The ANC asked the Chairperson to more actively control the meeting’s pace and avoid extensively debating issues that had previously been settled. The ANC also asked that the Committee finish an issue when it is being considered without moving on to something else before an agreement had been reached.

On the Decisions of Classification Review Panel clause, the ANC noted inconsistencies in the language of “heads of organs of state” versus simply “organs of state”. The ANC also brought up the issue of whether this clause’s sub-clauses applied to an official who had been delegated authority by the head of a given organ of state. On this matter, the IFP felt that decisions of the panel should be binding to the entire organ of state.

In the same clause, the DA felt the phrase “classification decision” in sub-clauses 1 and 2 was not broad enough. Debate ensued over how to redefine it properly, and it was suggested by the DA to the State Law Advisors to rephrase it as “classification procedures, practices, and decisions”. However, the ANC did not agree to that suggestion, nor did they agree to change it to “any decision relating to classification or declassification”. Thus, it was kept as written. The ANC proposed changing sub-clause 4 of the Reporting clause to state “the annual report” instead of “any annual report,” in order to avoid confusion. This was agreed to.

Upon reaching the final clause of the redraft, the Transitional Arrangement, the IFP recommended that debate on this clause should hold off until the Bill could be considered in its totality. The ANC agreed, urging the members to avoid lengthy discussion on the clause now. Before approving the Classification Review Panel, the DA suggested an amendment that would specify to which committee in Parliament the panel would be accountable. The ANC agreed but asked that it not be written so specifically that the panel would be restricted solely to the Joint Standing Committee on Intelligence (JSCI). This was agreed upon.

In the afternoon session, the Committee considered clause 17 on page 1 of the document prepared by the State Law Advisors. Whilst the DA was happy with many aspects it was still concerned that clause 17(2)(i) might dilute the classification process, and the justification for classification set out in clause 15, and may not be fully aligned with the practice followed. For this reason the DA proposed that it be deleted. The IFP suggested that the concerns might be addressed by inserting “without detracting from the balance of this section…classification decisions must..”. The question was posed whether reliance should be placed solely on clause 15, and delete clause 17 altogether. It was finally decided that the clause should be re-ordered by the State Law Advisors before a final decision was taken.

In relation to Clause 22, the IFP still had some concerns whether this clause correctly captured both the concept that a ten-year review of any documents classified under this Act must be done, within ten years, and the fact that there should be an immediate review by the Panel of any documents classified under prior legislation. The State Law Advisors noted that the transitional provisions did attempt to capture this, and Members suggested that the wording be left as it was for the moment.

The new draft of clause 23 was approved.

The ANC tabled a proposed new definition of “national security”. The DA raised objections that this definition appeared now to be too wide, particularly since it made reference to ”exposure of a state security matter” and “exposure of economic, scientific or technological secrets vital to the Republic’s stability, security, integrity and development”, and questioned why these were included, as they appeared to be at variance with comments made earlier by the Minister. The DA then proposed that the Canadian definitions be examined, or that the second part of the definition in the original Bill, from the words “protection of the people”, be used. It was opposed to the re-introduction of protection of economic interests, saying that these could be protected by other means. The ANC explained that that this new definition addressed the concerns expressed in the public hearings, and incorporated the Johannesburg Principles. There was absolutely no basis to infer that this wider definition would provide a loophole for corrupt activities. The ANC stressed that “national security” was being re-defined throughout the world and it was recognised that it could be affected not only by new cyber-threats, but by lack of water, health services, food  and development, and urged that the Bill must be drafted to counter current and future threats. National security went much further than national intelligence. The IFP broadly supported the ANC’s definition and comments, but wanted to see, firstly, a definition of “information peddling”, and secondly some threshold of what would be considered important threats. The IFP would make formal written proposals on the wording, as also on espionage activities, and to tighten the definitions, on the following day. The ACDP shared concerns about the ANC’s broader definition, but would also suggest how the wording might be tightened.

The ANC then noted that valid criticism had been expressed, during the public hearings, that this Bill provided insufficient protection to whistleblowers. A new clause was proposed by the ANC, and approved by the opposition parties, and would be incorporated into the working document.

The State Law Advisors were also asked to amend the wording of clause 23 to clarify the circumstances that would give rise to an automatic status review.

The ANC noted that it had been agreed that reference should be made to circumstances under section 46 of the Promotion of Access Information Act (PAIA), but the time period of 90 days set out in that section was too long. The ANC therefore proposed that where there was an “imminent” public safety or environmental risk, officials should respond within a maximum of 14 days. Members discussed the time periods, and asked the State Law Advisors to draft the necessary amendments, as also to provide an opinion on whether a Court, in addition to setting aside the time limits in the Rules of Court, could also do away with other statutory time periods.  

Members briefly confirmed that the minimum sentence provisions should fall away, save in respect of espionage, as well as that sanctions for corrupt activities should be tightened, and asked the State Law Advisors to produce new draft wording to this effect. 

The Chairperson asked the parties to set out any revisions to their previous submissions in writing, and it was also agreed that the State Law Advisors would, as soon as possible, produce a new Working Draft of the Bill.

Meeting report

The Chairperson proposed starting the meeting on the changes to the Classification Review Panel before going to the amalgamation of clauses 17 and 21. He then handed over to State Law Advisor, Ms Carin Booyse, to give her presentation. The presentation began on page 10 of the document, specifically on the changes to sub-clause 3 of the Functions of Classification of Review Panel clause. She then identified a new clause inserted on page 11 of the document regarding Appointment of Staff.

Before proceeding with the presentation, Mr S Swart (ACDP) expressed concern over the remuneration clause, particularly in regard to stipulating consultation with the Minister of Finance for budgetary considerations. Ms Booyse replied that this issue was inserted at later point in the document. Ms M Smuts (DA) then asked whether the chairperson alone should be appointing staff or should a chief executive officer perform such duties. After this question, the Chairperson intervened to allow for the presentation to proceed. However, Mr Jeffery noted that the wording in sub-clause 4 in Functions of the Classification Review Panel was preferable to sub-clause 2 in Appointment of Staff. Ms Booyse then proceeded with her presentation by request of the Chairperson.

Ms Booyse, asked for the Committee’s indulgence on sub-clause 2 of the Constitution and appointment of Classification Review Panel clause, which would be revisited after the presentation. Mr L Landers (ANC) intervened the presentation to remark that if something had been agreed to, it must be inserted into the Bill, but if something had not been agreed to, it should not be put in to “see what happens”. In particular he was referring to sub-clause 2 of Constitution and appointment of Classification Review Panel clause. The Chairperson advised Committee members to flag these concerns and revisit them after the presentation.

Ms Booyse then noted alterations to the following: sub-clause 5 of the Constitution and appointment of Classification Review Panel clause, sub-clause 1 of the Disqualification from membership clause, the title and sub-clauses 1, 2, and 3 of Removal of office clause, Remuneration of members clause, sub-clause 1 and 4 of the Meetings of Classification Review Panel, sub-clause 1 and the removal of the former sub-clause 2 of Decisions of Classification Review Panel, sub-clause 2 and the removal of sub-clause 3 in the Reporting clause. She also acknowledged changes to the Transitional Arrangement clause relating to clause 22, but recommended dealing with that later. The Chairperson agreed with Ms Booyse, and then asked the Committee if those alterations reflected what was agreed to the previous night before commencing discussion.

The Chairperson asked for the members to avoid debating issues that were settled in the previous night’s meeting. He ordered the Committee to specifically go through the changes articulated by Ms Booyse, beginning on page 10 of the document. Mr D Maynier (DA) did not feel that the wording of sub-clause 2 of the Establishment of Classification Review Panel clause captured the agreement reached in the previous meeting. He raised concern that it did not provide the Review Panel sufficient access and possibly needed strengthening. Mr Landers acknowledged an agreement in principle, stating that the appropriate drafting was still required to provide such. Mr Jeffery felt the sub-clause was vague and lacked purpose. Mr Maynier responded by explaining that if the Review Panel is to conduct random sampling, it would need access to security services that may be resistant to their requests for documents, thus requiring inclusion and stronger wording. Mr M Oriani-Ambrosini (IFP) appeared to agree with Mr Maynier’s points, saying there must be enabling legislation to create obligation on the part of the relevant organ of state.

Mr Landers proceeded to articulate an example situation that would benefit from a strengthened sub-clause 2. Mr Swart agreed that the sub-clause should be strengthened, and added that a provision should be inserted to provide for offences for non-cooperation by organs of state. Ms Smuts said the clause needed to ensure full access and saw no harm in creating an offence in the event of obstruction.

The Chairperson pointed out that an offence could not be charged to the organ of state itself, but rather would have to be charged to the head of that organ. Mr Swart referred to clause 90 of the Promotion of Access to Information Act for precedent law relating to this issue. Mr Oriani-Ambrosini said any official who had been legitimately requested to provide information to the Review Panel and prevented the panel from performing its function, commits an offence. He also iterated that whoever failed to help with the intention of preventing access, also commits an offence.

Mr N Fihla (ANC) made the point that the Review Panel was created as an instrument with massive teeth; if it did not have teeth, then it would be useless. This suggested approval of adding an offence provision. Mr Landers recommended fixing the sub-clause’s wording first to ensure access is not denied, then debating the inclusion of offences afterward. Mr Oriani-Ambrosini gave an example to clarify his position, before the Chairperson directed the Committee to move to another matter. Ms H Mgabadeli (ANC) asked to set aside time to settle this matter before proceeding, but the Chairperson once again advised to allow Ms Booyse to review the recommendations.

Mr Landers proposed removing sub-clause 4 under Functions of Classification Review Panel because the issue was dealt with more adequately later in the draft. He also suggested changing the title of the Remuneration of members clause to read “Remuneration of members and staff”. The Chairperson acknowledged the agreement of the Committee to Mr Landers’ amendment. Mr Jeffery advised removing sub-clause 2 under Appointment of Staff, which was also agreed to.

The Chairperson noted that sub-clause 2 of the Constitution and appointment of Classification Review Panel clause should only require approval of the National Assembly, as agreed to in the previous meeting. Mr Jeffery agreed on this point. Mr Landers said the requirements for filling panel vacancies did not reflect the Committee’s agreement. Ms Booyse stated that what was written was merely a suggestion based on the Constitution, but said the necessary changes would be made to capture the Committee’s amendment. Ms Smuts said the requirements for filling vacancies should include a list of candidates sufficiently long to also fill future vacancies; it should not be practiced as a matter of convenience. The Chairperson acknowledged agreement on the sub-clause.

Debate ensued on the wording for sub-clause 2, specifically whether the National Assembly submits for “recommendation” or “approval” the list of nominees. The Chairperson suggested replacing “approval” for “recommendation” to properly reflect the Committee’s vision. Mr Swart asked the State Law Advisors to review the wording for the Constitution’s procedures for appointments to Chapter 9 institutions. He said this would ensure there was not ministerial discretion in the process. The Chairperson instructed the State Law Advisors to edit the sub-clause’s language as agreed upon by the Committee.

On sub-clause 4 in this clause, Mr Jeffery felt that the phrase “at least ten years experience” was too vague. Mr Swart suggested adding “in legal practice” after “experience” in order to specify the criteria. Mr Jeffery said it should simply read “at least ten years legal experience”. There was agreement amongst the Committee on this issue.

On sub-clause 5(a) in the same clause, Mr Oriani-Ambrosini expressed dissatisfaction with the language. Ms Smuts advised changing “in the Constitution and the law” to “constitutional law,” but Mr Landers objected. The Chairperson said the language would not be changed and would remain as previously agreed upon.

Mr Jeffery suggested adding a sub-clause that required panel vacancies to be filled as quickly as reasonably possible, yet ensuring that a temporary vacancy did not invalidate the work of the panel. The Chairperson noted agreement on Mr Jeffery’s proposal.

The Chairperson read through the Disqualification of membership clause and there was agreement that the draft document reflected the Committee’s vision. However, Mr Oriani-Ambrosini raised concern over the wording of sub-clause 1(h), dealing with convictions of an offence prior to 27 April 1994. The Chairperson and Mr Landers stated that the Conviction exception options covered Mr Oriani-Ambrosini’s concerns. Ms Smuts also stated that these provisions were in line with the Constitution. Mr Jeffery noted that the deadline for amnesty had been 10 May 1994 rather than 27 April 1994, as the sub-clause stipulated. The Chairperson asked the State Law Advisors to check this matter. The meeting was then adjourned at 11:45.

The Committee reconvened at 12:10. Ms Mgadabeli requested that the Committee stay on task by finishing one thing at a time in order to move the process along due to time constraints. The Chairperson stated that it had been agreed that the Committee would work until 21:00 every night, unless otherwise amended. He said  Members should make known any arrangements and accommodations he or she would need. Mr Landers proposed the Committee should meet on Saturday but not on Friday, because the members would need time to read the Court’s judgment. The Committee would then resume meetings on Monday of the following week. Ms A Van Wyck (ANC) echoed Ms Mgadabeli’s point about the manner of debate, stating that the process was moving too slowly. She asked the Chairperson to control the pace in order to avoid members “speaking for the sake of speaking”.

The Committee moved swiftly through pages 14 and 15 of the draft document. Mr Landers noted Mr Jeffrey’s request to add a sub-clause on panel vacancies. Mr Oriani-Ambrosini suggested adding this clause to the end of sub-clause 4 under Meetings of the Classification Review Panel. This sub-clause would then read “Any decision taken by the Classification Review Panel is valid if the required quorum is present at that meeting, notwithstanding any vacancy”.

Moving on to the Decisions of Classification Review Panel clause, Mr Landers felt there were inconsistencies amongst the sub-clauses. He said sub-clause 4 in that clause should specify “head of an organ of state” as the other clauses did. He then raised the point that in clause 19 of the Bill, the head of an organ of state is allowed to delegate his authority to other officials in that organ. This raised the question of whether or not a decision of the Review Panel would also bind to the delegated official, as per sub-clause 4. Mr Oriani-Ambrosini felt the panel’s decision should bind the entire organ of state.

Mr Oriani-Ambrosini then moved to the subject of appeals, which the Committee felt was out of scope of the current discussion. The Chairperson issued a point of order to control the discussion. Mr Oriani-Ambrosini attempted to clarify his point, stating that the power of classifying went all the way down to the individual who actually handled the document.

Mr Maynier raised a new point dealing with Decision of the Classification Review Panel. He noted the phrase “classification decision” in sub-clauses 1 and 2 was potentially too narrow. He suggested a broader wording, substituting if for “classification procedures, practices, and decisions”. Ms Booyse said she would consider the proposal but “decision” was preferred.

Mr Sisa Makabeni, State Law Advisor, asked to speak and was granted permission by the Committee. He articulated how the Classification Review Panel would work in practice.

Mr Maynier suggested that the wording could be amended to state “any decision relating to classification or declassification”. The Chairperson asked the Committee members if they wanted to insert Mr Maynier’s amendment, but the decision was to keep what had previously been agreed to. The Committee then proceeded to the next clause.

Mr Landers questioned why sub-clause 4 of the Reporting clause was phrased “any annual report” instead of “the annual report and any other report”. Ms Van Wyk responded to the confusion here, saying this sub-clause was specifically referring to the annual report to be submitted to not only the JSCI but Parliament as well. The Chairperson requested the wording be changed to simplify the sub-clauses, including Mr Landers’ amendment.

Mr Oriani-Ambrosini asked for the Committee to hold off on discussing the Transitional Arrangement clause until it could be looked at holistically. He noted the major implications of the clause would better be handled when the rest of the Bill was finished. The Chairperson urged the Committee to raise concerns and move along, without engaging in deep discussions on the clause now. Mr Landers remarked that anything classified for more than 20 years, pursuant to clause 20, must be dealt with expeditiously. Thus, the Transitional Arrangement should be subject to clause 20.

Upon reaching the end of the draft document, the Chairperson noted that the Review Panel was now nearly properly constituted. Mr Maynier recommended adding a clause to stipulate to which Committee in Parliament the panel will be accountable, suggesting that it be the JSCI. Ms Van Wyk agreed, but requested that it not be written in a way that restricted it to the JSCI. The Chairperson asked the State Law Advisor to insert a clause reflecting these points. He then directed the Committee to move on from the Classification Review Panel in order to facilitate progress.

Mr Oriani-Ambrosini reiterated his discontent about the Decisions of the Classification Review Panel clause and stated he would like to revisit the issue later. The Chairperson adjourned the meeting at 1:00 for lunch.

Afternoon session

The State Law Advisors tabled further redrafts of clauses 17 to 23.

Clause 17
Ms Smuts indicated that the DA was not happy that subclause 17(2)(i) would have the effect of diluting the classification criteria, as indicated on the previous day.

Dr Oriani-Ambrosini (IFP) said the IFP was, by and large, satisfied with the redraft.

Mr D Maynier (DA) said that much of the clause, especially clause 17(2)(b), was well-worded. However, he reiterated Ms Smuts’ point that certain subclauses might “dilute” the classification process. He was also concerned that the clause did not appear to be fully aligned with what was done in practice, as outlined by Mr Dennis Dlomo, Advisor to the Ministry of State Security. The decision to classify was, broadly, contingent upon the disclosure, degree of harm and national security. Mr Maynier formally proposed the deletion of subclause (2)(i) on the grounds that it might dilute the classification decision and cause confusion.

Dr Oriani-Ambrosini understood the concerns of Mr Maynier but wondered if this could not be addressed differently. Anything done for reasons set out in 17(2)(b) would result in invalidity of the classification. He therefore suggested addition of the words “without detracting from the balance of this section, classification decisions must..”

The Chairperson asked Members whether anything would be taken away from clause 17 if subclause (i) was to be deleted.

Ms Smuts added that subclause (i) impacted on the decision as to whether, and in what category, to classify documents under clause 15. This was an academic, and quasi-judicial exercise, using other extraneous factors. 

Mr Maynier said that the classification decision was not in fact a balancing decision. All information must be public, unless it met a certain threshold.

Mr Landers expressed his personal view, which he stressed that he had not canvassed with his ANC colleagues, that perhaps clause 17 should be removed, so that classification would rest solely on clause 15. The ANC had been under pressure to provide clearer guidelines, which it had attempted to do by combining clauses 17 and 21, which were now questioned, although it was aware that there would have to be changes to clause 17 to make it consistent.

The Chairperson did not agree, as he thought clause 15 could not stand alone. At some stage, the classifiers would have to be certain of what they must do. He suggested that re-ordering the text, to follow the procedure in practice, would result in a clearer set of instructions to the classifiers.

Mr Maynier said he would welcome such a re-alignment, so that the clause reflected the process. It was vital to retain clause 17(2)(b), in particular.

Dr Oriani-Ambrosini said that ideally, there was much that he would like to re-draft, but he suggested that no alterations should be made. He made the point that this Committee was not writing the manual for implementation. Those doing the classification must impose their own order on what was set out.

Mr Landers noted a general agreement that the clause might benefit from realignment, and suggested that perhaps the State Law Advisors could see to this, before a final decision was taken whether the remove 17(2)(i).

Mr Maynier agreed.

The Chairperson then formally asked that the drafters, and Mr Dlomo, try to re-arrange this clause.

Clause 22
Dr Oriani-Ambrosini noted that a new subclause 22(2) had been substituted, to deal with the point at which classification would begin. He had, however, understood that different wording would be used to capture the concept that as soon as a classification had subsisted for ten years or older, it would be subjected to review.

Mr Landers said that clause 22(1) captured that concept. The confusion around the effective date being linked to the effective date of the Act had been removed.

Dr Oriani-Ambrosini said that clause 22(1) required the head of the organ of state to review classifications in ten years. It did not specify that information older than ten years must be reviewed.

The Chairperson noted that most Members agreed with clause 22(1). The first two paragraphs on page 8 had been deleted and a new subclause (2) was now included, referring to “this Chapter”. He thought this did capture what Members had agreed.

Dr Oriani-Ambrosini said that the new subclause (4) was repeating what was in the former (2). However, he was concerned that it was not said, anywhere in the Bill, that a piece of classified information that was ten years old on the date that the Act was passed would have to be reviewed immediately. That still needed to be captured.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, noted that there was provision for some of this to be captured in the transitional provisions, as set out on page 17 of the revised document.

Dr Oriani-Ambrosini commented that the provision said that there must be an audit of what was in existence. However, it did not specify, in terms, that anything ten years or older must be reviewed now. When this was read with clause 22(1) it created the impression that the review could be done in another ten years’ time.

Mr Landers said that the status of classified information must be reviewed by the head of the organ of state. In the transitional arrangements, that was taken further. On the effective date of the Act, any information classified under the Minimum Information Security Standards (MISS) or prior legislation must be reviewed, and a report must be compiled.

Dr Oriani-Ambrosini said all Members agreed that the Classification Review Panel (the Panel) would have to start work immediately, but the wording was open to interpretation. The wording should specifically state not only that a review and audit of information take place, but that this must go to the Panel.

The Chairperson clarified that anything classified after the date of operation of this Act would fall within the provisions of this Act. Dr Oriani-Ambrosini wanted the transitional arrangements also to refer to the Panel.

Dr Oriani-Ambrosini added that it should be made clear that the final stage of the review and audit, as mentioned under the transitional arrangements, would be referral to the Panel.

Mr Landers noted that the classification authority was the head of the organ of State, who might hold information dating back to the 1950s. Where departments or original classifiers no longer existed, then the State Security Agency (the Agency) must do the necessary work to review and compile an audit report, ad this, in terms of paragraph (c) of the transitional arrangements, would be sent to the Panel.

The Chairperson thought that the transitional arrangements referred to material that was ten years or older on the date on which the Act came into existence. He thought it was covered.

Mr S Swart (ACDP) said that the first ten-year period would run from commencement of the Act. In that ten-year period, the Panel would have to review matters older than ten years. He agreed that this seemed already to be covered by the clauses setting out what the Panel must do, read with transitional provisions.

Mr Maynier also read the Bill this way, and did not agree with the concerns of Dr Oriani-Ambrosini.

Mr T Coetzee (DA) suggested that one way of dealing with the perceived problem was to state that the review process would apply immediately to all information classified prior to commencement of the Act. That would leave no doubt.

Mr Swart reiterated that this was already covered, and he suggested that Members move forward. If, after dealing with the whole Bill, there still seemed to be uncertainty, then the problem could be re-debated.

Mr Maynier then raised another point, as to when it was envisaged that the review process for old documents should be completed. It was unlikely, but possible, that an organ of State could delay dealing with documents until year 9.

Ms Booyse clarified that the Bill set out that certain matters must be attended to “on the date when this Act takes effect” certain things must be done.

The Chairperson noted that other Members did not generally support Mr Maynier’s concerns but he could raise the point later if there was a need to do so.

Clause 23
All Members were in agreement with the wording of this re-drafted clause.

Dr Oriani-Ambrosini reminded Members that a definition of “request” must still be included in the Bill

ANC Proposals for Definition of “national security”
Mr Landers stressed that this definition was crucial to the success of the Bill. He read out his proposed definition as follows:

”National security” means the protection of the people of the Republic and the territorial integrity of the Republic against:
(a) the threat of use of force or the use of force
(b) the following acts:
(i) hostile acts of foreign intervention;
(ii) terrorism or terrorist related activities
(iii) espionage
(iv) information peddling
(v) exposure of a state security matter
(vi) exposure of economic, scientific or technological secrets vital to the Republic’s stability, security, integrity and development
(vii) sabotage; and
(viii) violence

(c) whether directed from, or committed within the Republic or not, and includes the capacity of the Republic to respond to the use of or the threat of the use of force and carrying out of the Republic’s responsibilities to any foreign country and international organisations in relation to any of the matters referred to in this definition”.

The Chairperson said that national security was defined in the original Bill. It had already been agreed that this definition was not sufficient, particularly when “national security” had been substituted for “national interest” Some of the matters covered in this definition had already been tabled, including the concerns around information peddling.

Mr Maynier agreed that this was a very important debate. This definition was vital to the success of the legislation. To begin the debate, he asked for clarity on two matters. Firstly, he noted that the definition now proposed departed both from the definition as contained in the original Bill, and from the Minister’s presentation of October 2009, in three important respects, namely, the insertion of references to information peddling, exposure of state security matters, and exposure of economic, scientific or technological secrets. He asked for clarity as to why these were inserted. He was concerned that the definition, by being expanded, may now be overly broad. Secondly, he asked that the Committee should look at the definition of national security in the Canadian legislation. The Minister had argued in favour of this and the concept of “national security” was primarily drawn from the Canadian legislation.

The Chairperson commented that the Minister had already raised information peddling, so this was not new.

Mr Maynier agreed, but said that this was not raised as part of the definition.

Dr Oriani-Ambrosini did not want to comment on the text in detail, nor to argue with the points raised by Mr Maynier. However, he thought that a definition, or at least a common understanding of what “information peddling” entailed must be included. The dictionary definition made reference to journalists collecting information, and providing it, on a consultancy basis, to governments, but this had nothing to do with classified information.

The Chairperson agreed that a definition might be needed. He referred to the Minister’s presentation on the damage that information peddlers was causing, which made it clear that remedial action had to be taken. This had given some ideas of what information peddlers did. He suggested, however, that to avoid confusion at this point, the definition of information peddling should stand over until a later time.

Mr Landers responded to Mr Maynier that there was no real departure from the original Bill, which took over wording from the Constitution. Many critics had pointed out that this definition was neither helpful nor adequate. He could not comment on the Canadian legislation. However, he believed that Members should seek to isolate the potential threats to the Republic, and that would be the basis for setting out what affected national security.

Mr Landers also stressed that once the Bill was tabled, the Minister had no further role, so it was up to the Committee to decide upon the wording, although this was not to suggest that the view of the Minister was not important and it was possible for a Minister to indicate whether the Committee was on the correct track.

Ms Smuts agreed with Mr Landers’ comments about the Ministerial involvement.

Ms Smuts then suggested that the second part of the definition in the original Bill had probably been sufficient. The first half had repeated ideals set out in the Constitution, but the second part, from “protection of the people” was quite tight, and, most importantly, included the Republic’s responsibilities. She felt that Mr Landers’ definition, which included the Johannesburg Principles, had added in some superfluous matters. In particular, the part relating to “exposure of economic, scientific or technological secrets vital to the Republic’s stability, security, integrity and development” was too wide, and could allow for classification of matters that had nothing to do with national security.

Mr Maynier suggested that Mr Landers’ thinking was perhaps muddled, when he argued that it was necessary to define threats to national security. Mr Maynier did not think this was correct. He questioned why Mr Landers had departed from the original Bill’s definition, particularly in relation to information peddling, exposure of State secrets and exposure of economic, scientific or technological secrets. He reiterated that since the basis for having this definition was the Canadian approach, the Canadian definition should be examined.

Mr Maynier thought that the Johannesburg principles were of value in defining national security, referring to it as protection of a country’s existence, its territorial integrity against the use of, or the threat of use of force, and a country’s capacity to respond to the use or threat of force. The Johannesburg Principles also argued that in a democracy there should not be an attempt to protect interests unrelated to national security, including possible embarrassment that release of documents may cause, or exposure of wrongdoing, or concealment of information. However, he thought that Mr Landers’ definition was in fact going some way to trying to cover these.

The Chairperson said that Members should try to take the process further. The DA had asked why Mr Landers appeared to differ from the view expressed by the Minister, and he asked if the DA was then suggesting that it agreed with the Minister. It was really not useful for Members to couch questions in such a way, but they should instead state their own view more clearly, or make formal proposals.

Mr Maynier asked that Members not be distracted by this point. Mr Landers’ proposal contained references to information peddling, exposure of State security matters, and exposure of scientific, technological and economic secrets vital to the Republic’s security or development.

The Chairperson asked if Mr Maynier was saying that he did agree with the Minister, and did not agree with Mr Landers’ departure from him on this point. He reiterated that he would like to have specific comment on what precisely the DA felt was the problem.

Mr Landers said that the reason for departure from the original definition in the Bill was that the ANC had taken into account comments made during the public hearings. It was disingenuous of Mr Maynier to refer to the comments made by the Minister, which had not specifically been taken into account. The ANC definition had sought to include some of what was in the Johannesburg Principles, because it believed that there was good reason to do so. If the DA wanted to see the entire Johannesburg Principles captured, then Mr Maynier must say so, and the parties could argue on specifics. The ANC did believe that the three matters to which Mr Maynier had referred were important to national security. It would be very serious if there was exposure of a State security matter, as this would affect national security. The same applied to exposure of economic, scientific and technological secrets. The Minister of Science and Technology had said that this Bill was important to the work conducted by her Department, although she had not specified exactly why. Mr Maynier had not indicated exactly what the DA found objectionable in the definition. In regard to the suggestions that the widening of the definition could lead to abuse or corruption, the ANC was on record already, but wanted to reiterate now, that it would not allow this Bill to be used to hide malfeasance, corruption, fraud or bribery. There were no loopholes hidden in this definition.

Dr Oriani-Ambrosini asked that Members be provided with a written copy of the definition. He had already raised his concerns about “information peddling”, and also thought that a definition might be needed of “terrorism”. He was also concerned that some aspects seemed to be stated in a circular manner. He thought that Members should rather be discussing what had to be protected, and what matters must be kept secret.

Ms Smuts referred Mr Maynier to the Terrorism Act for definitions.

Ms M Mentor (ANC) appealed to the DA Members to engage with what was before the meeting.

Ms A van Wyk (ANC) asked that Members should not refer to officials who were not in a position to defend themselves. Although their remarks may be said in jest, they could create the wrong impression in the minds of those observing meetings.

Ms van Wyk said this proposed definition was an honest attempt to address concerns raised in the Committee. The current discussion was not serving the Committee’s interests. Throughout the world, there was debate about re-defining “national security”, and broadening that definition. For instance, lack of a proper health service, shortage of food, water, and lack of development would all affect national security. If a broader definition was not adopted now, in recognition of the current threats, including cyber-threats, then the Bill would not adequately serve the interests of the country in future. She quoted a statement by the US Central Intelligence Agency, noting that development issues such as infant mortality, agricultural productivity, standards of nutrition, status of women and democracy all said much about the status and security of a country. She referred Members to useful articles on the subject of redefining national security.

Mr Maynier said that he had, in good faith, asked for motivation from the ANC as to why these three new concepts were included. He asked if Mr Landers was suggesting that exposure of any State security matter would affect national security, since it was not, to his mind, a given, and this might cause the definition of national security to be too broad, and there was no indication how this might affect the protection of the people of the Republic or territorial integrity. He agreed with Ms van Wyk that there were many debates around security and national security, but stressed that this Bill had to deal with security institutions. He thought that lack of a proper health service was a developmental problem, but it was up to the Department of Health, and not the State Security Agency, to sort that out.

Ms van Wyk commented that this was what Egypt also believed.
Mr Maynier continued that it was necessary to be careful about the concepts, and to keep the definition narrow. The scope of the mandate of the intelligence services should be limited to national security threats, not developmental challenges.

The Chairperson said that Mr Maynier had now repeated the same questions four times. Mr Landers had responded. He again asked Members to state specifically whether they wished to depart from, or add to, the proposals before the Committee. He had asked all Members, several months ago, to look at these issues and formulate what they wanted. The DA had criticised, but had put nothing on the table today, and the current debate was not moving forward. He agreed that there was no point in attempting to draft a Bill that addressed past or existing threats only but did not consider what the country might face in future.

Dr Oriani-Ambrosini felt that the Committee was making some progress. He agreed with Ms van Wyk that this Bill should be able to deal conceptually with national security. National security allowed people in the Republic to live together, conduct their lives in peace, and achieve what they wanted. Everything must be included in that formula, including infrastructure, education, housing, water and other issues. In America, in the 1950s, the import of communist ideas was considered a threat to national security, but that was in the context of how America viewed itself at the time.

Dr Oriani-Ambrosini added that there should be a threshold of what was considered important, and that must be based on common sense. For instance, protestors disrupting electricity supply in a small area would not affect national security, but a disruption that affected industry at large, or disrupted people’s co-existence, would be. He would try to table his written suggestions to the Committee.

Dr Oriani-Ambrosini also appreciated the difficulties of definition, but had some comments on the proposed wording. Under (iv), he asked how to define what could be held secret, and the same would apply to  exposure of State security matters (which were part of national security). The definition of “national security” should not attempt to define a component of itself. He also said that “espionage” referred merely to the giving of information to a foreigner, and the information may not necessary be “secret”.

Ms Mentor agreed with Dr Oriani-Ambrosini on some points, but differed from him on the point of espionage, which was defined. The definition in the original Bill had placed State security over and above the security of the people of the Republic. Protection of the people was crucial, and it would be retrogressive if the intelligence services confined themselves to “state security”, so it was necessary to include other issues that went directly to protection of the people. She also wanted to touch on information peddling, which had the potential of creating dissent, and where there was dissent, people were not protected against fear, want and similar matters.

Ms van Wyk made the point that the Committee had moved a long way from dealing only with the fears that pertained to the original Bill. The conditions for classification had also changed. She thought that the reference to national intelligence involvement in other departments was incorrect, and stressed that this was not reflected in the current wording as agreed by the Committee. Individual departments of State must themselves apply their minds as to whether their information, if not protected, could affect national security. In addition, those organs of state would have to show the Panel what they were doing. She stressed that national security was not national intelligence, but was very much broader. She urged that Members acknowledge the shifts made from the original Bill.

Mr Landers commended Ms van Wyk for articulating this so well, and agreed that there had been a re-think of what national security meant. It did go directly to the citizens of the country. Sometimes far too simplistic a view was taken. The fact that there was no tangible war against South Africa did not imply that there was no need for national security.

Mr Landers then commented on the DA’s view that the definition should be narrowed, and reiterated that the ANC believed that this definition was sufficiently narrow. The DA was interpreting the addition of the three matters as the possibility of hiding corruption, and this was not the case. He cited the instance of Bradley Manning, and noted that few protests were made about his incarceration. He urged that all Members should engage on what national security should cover, and agreed that the draft sought to address people as the centre of national security.

Ms Smuts clarified that the DA formally held the position that the second half of the definition, as contained in the original Bill, should be adopted. This referred to protection of the people of the Republic. She noted the comment that national security was expanding to include other matters, but pointed out that the remit of the National Intelligence Agency (NIA) from 1994 onwards had wandered into every policy area, to the point where the review conducted by Matthews, Ginwala and Nathan had concluded that it made no sense for NIA to duplicate the work done by other departments. The Mbeki Cabinet had ruled, in 1993, that the NIA should examine competition within and between political parties. Ms Smuts also challenged the impression that this Bill had no role for intelligence services outside national security, noting that they still did have a role (although the DA believed that they should not) in respect of valuable information.

Ms Smuts understood “information peddling” as giving false information to the Agency, not to society in general, which was covered already by common law. In regard to the inclusion of “exposure of a State security matter”, she said that there could be cases where people would in fact be protected only if State security matters were exposed. There were problems in some arms of the intelligence services, and these should therefore be subject to scrutiny. A “State security matter” was defined in the Bill as “any matter dealt with by the Agency, or which relates to the functions of the Agency, or to the relationship between any person and the Agency” and it would be “intolerable” if their actions could not be exposed where necessary. She quoted Rev Frank Chikane, who had noted that a corrupt intelligence service was the greatest threat to national security.

Ms Smuts then commented on the portion of the definition dealing with exposure of economic secrets. The very reason why commercial aspects had been removed from the Bill earlier was that these aspects readily lent themselves to corruption. She believed it was incorrect now to reintroduce an “economic” category  as part of national security, which meant that it could be classified.

Ms H Mgabadeli (ANC) said that it may be necessary for the Committee to call for input from those on the ground. She noted that the context was continuously changing. She urged Members to formulate specific comments, saying that if they had done so earlier, this could have taken matters much further.

Mr Maynier added that during the Minister’s presentation, he had not indicated that information peddling was a threat to national security, although he had indicated that it may be a threat to the unity of the ruling party. He reiterated his previous point that the Committee would benefit from a second presentation on information peddling.

The Chairperson said that he had a different recollection of the presentation. He thought it erroneous to suggest that information peddlers threatened the ANC, as their intention was to overthrow leadership.  Diplomatic relationships with other countries had been seriously harmed by the Browse Mole report. It was quite clear that there were differences in policy.

Ms Mentor said that, although she could not advance the proposals at this point, she would like to make the point that the recent attacks in Norway, targeting the youth and President, had destablised and threatened the security of that nation.

Ms Mentor asked Ms Smuts to clarify whether she believed that research into matters that could give South Africa a technological, scientific or economic edge should be made freely available.

Ms Smuts responded that these matters should be protected, but classification was not the only way to do so. Many enterprises and industries were already allowed to withhold trade secrets and their private information, under the Protection of Information Act (PAIA) and common law. A good example would be the information about the Pebble Bed Modular Reactor (PBMR), although this was not in fact classified. In relation to the other point raised by Ms Mentor, she noted that it was not necessarily bad for the country if certain things were exposed about the ruling party.

Ms van Wyk referred to the definition of “national security” in the Constitution (which included “free from fear and want”), saying that this was already indicative of a definition of national security broader than territorial safety of South Africa. Human security was stressed. She asked that firm proposals should be made by the opposition parties, if they wished to amend Mr Landers’ suggestions. She also wanted to stress that national security violations by any Agency were not constitutionally justifiable. It was disingenuous to suggest that this definition was too broad because of inclusion of valuable information. Ideally, there should have been a separate piece of legislation to deal with valuable State information, to avoid blurring the lines. Mr Landers had made the point that valuable information should be regarded separately.

Ms Smuts said that these were very good points, but this did not mean that absolutely everything could be classified. She also reminded Ms van Wyk that the National Archives Act covered the keeping of public records, and the National Archives would be happy to brief the Committee on the keeping of public records. There was also another Bill dealing with record-keeping in the private arena.

Dr Oriani-Ambrosini agreed that the next step would be for every party to make substantive inputs. There was no reason for political divisions on such a matter. Ms van Wyk had made a number of valid and correct points. This Bill did relate to protection of State classified information, rather than protection of national security. He would be suggesting amendments on thresholds. The IFP had, in its earlier discussion document, proposed both the deletion of the current definition, and of clause 43, which dealt with prohibition of the disclosure of State security matters. Members had reached some satisfaction that clauses 15 and 17 covered the disclosure of information that would harm the State, and if whatever was included in “state security” was covered by clause 15 and 17, then clause 43 was not needed. In relation to information peddling, there was an issue around misinformation. The information being peddled was not classified, but false.

The Chairperson said that information peddling was a separate issue, and could be dealt with later.

Dr Oriani-Ambrosini said that he also had some problems with espionage, created by clause 32. If it was already criminalised, then the prevention of espionage did not seem to correlate with how it was defined later, so this too might be repetitious. In relation to exposure of economic technological or scientific matters, he proposed that “matters” be substituted with “secrets”. He did not have a problem with (iv) if there was a threshold.

Mr Maynier wondered if the solution was not simply to delete (b) of the ANC proposed definition in its entirety. This might provide the range that Dr Oriani-Ambrosini had suggested. This would mean that classifiers would need to consider whether a document would prejudice, for example, the territorial integrity of the Republic. That might go some way to addressing the concerns.

Ms Mentor thought that there would not be agreement to this. She was not convinced that technological and scientific endeavours could be left to be protected in some other way. She pointed out that the information about the PBMR had not been classified, and that was the reason why South Africa had lost the patent, despite having put enormous sums of money into researching it. She asked Ms Smuts if she could give examples of other States that might have kept these matters open.

Ms Smuts said that the opt-in to classification would also apply. She agreed that PBMR and other such devices should be protected. However, only in certain, exceptional circumstances could information be classified, rather than being protected in another way.

Dr Oriani-Ambrosini suggested different wording. This read: “National security means the protection of the people of the Republic as a whole or  the territorial integrity of the Republic against:
(a) the threat of use of force or violence…” (He then made the point that this may require to be expanded, to say what force was, and by whom the force was to be exercised, and by bringing up the reference to “violence” it would then be deleted under subparagraph (viii)
He continued :
”(b) the following acts, when they threaten the Republic’s stability, security, integrity or development: ”
(and then paragraphs (i) to (vii) would be listed)

Dr Oriani-Ambrosini made the point that an act of violence by itself would not necessarily threaten national security.

He then noted the words contained in (c) of Mr Landers’ definition, relating to “whether directed from, or committed within” did not follow correctly here, and should probably be noted in a way that it qualified both (a) and (b).

Ms Mentor said that there seemed to be merit in some of this, but suggested again that written proposals of the parties should be circulated.

Mr Swart indicated that he shared concerns on the broadness of what was in (v) and (vi) of Mr Landers’ definition, and would also like to discuss information peddling further.

Ms Mentor asked for more specifics on the concerns around (v) and (vi).

Mr Swart noted that his concern was that the definitions now became too broad. There was already a Portfolio Committee on Economic Development that was charged with looking at economic matters. He thought that it was preferable to revert to the earlier suggestions by the ANC, when these mattes were excluded.

Ms Mentor asked if perhaps Mr Swart could propose a way to narrow down the definition, by suggesting new wording.

Mr Swart agreed to try to draft something, although he felt that there might still be differences in policy between the parties.

The Chairperson recommended that Members could refresh their memory by referring to comments made during the public hearings. The definition had been informed by this, as well as by other briefings.

Mr Maynier urged that the ANC should also reconsider its proposed definition, particularly around the involvement of the Agency in State security.

Protection of Whistleblowers
Mr Landers noted that there had been some valid criticisms around insufficient protection in the Bill for whistleblowers, as provided for in the Protected Disclosures Act and Companies Act. The ANC therefore proposed that a new clause be inserted to deal with this, to read:
“Any person who unlawfully discloses classified information in contravention of this Act is guilty of an offence and liable on conviction to imprisonment for a period…”
(and Mr Landers noted that here the minimum sentence provisions would change) .”….except where such disclosure is:
(a) protected under the Protected Disclosures Act No 26 of 2000 or section 159 of the Companies Act 2008, or;
(b) authorised by any other law”

The Chairperson said that this was not a completely new proposal.

Ms Smuts noted that there were some changes to what had been proposed before. 

Mr Swart said that the ACDP was in agreement that this wording answered concerns raised by the media.

Dr Oriani-Ambrosini was in agreement with the clause, but did not agree with what it was meant to address. He noted that there was still a much greater concern about the public interest defence, which directly affected the media. This still needed to be addressed.

The Chairperson said that Dr Oriani-Ambrosini had raised another, different matter. He would no doubt raise it again.

Mr Swart said that he had not understood some of the media articles that referred to lack of protection for whistleblowers. It would be important to emphasise these proposals on he following day, when the media was present again.

The Chairperson asked the State Law Advisors to include this proposal into a working document, and present it formally on the following day.

Mr Landers agreed that it was important that the public be made aware of what the Committee had agreed upon.

Automatic status review: Clause 23
Mr Landers noted that all parties had noted their broad acceptance of the idea that when a requestor approached an information officer for access to information, and the officer realised that the piece of information must be declassified, then an automatic status review should follow. However, that had not quite been captured in the current wording, so he proposed that it must be stated specifically.

Mr Maynier indicated his support.

The Chairperson asked the State Law Advisors to redraft clause 23, possibly by inserting a new subclause,  to outline clearly the circumstances that would give rise to an automatic status review.

Time periods for review: to be inserted under clause 23(3)
Mr Landers said that the ANC had tabled a proposal to include Section 46 of PAIA, including the public interest override. However, the procedure in PAIA spoke of a 90-day period, which would be too long if it was necessary to expose something such as an imminent public safety or environmental risk – for example, risk of explosion at a nuclear plant. However, it was still necessary to give officials the opportunity to air their views. The ANC was proposing that in these circumstances, officials should have to attend to matters within a maximum of two weeks.

Ms Smuts noted that even this might not force the official to act until the very end of the 14-day period, and she wondered if the requestor should not specify, in the request, the public interests involved.

Mr Landers still preferred to use “not more than 14 days”.

The Chairperson asked for comment about possibly using “within a reasonable time” which was always considered in context. He was worried about imposing a time period within which it was impossible for the official to respond.

Dr Oriani-Ambrosini said that “a reasonable time” was not usually used for administrative actions.

Mr Swart said that it might be necessary to look at distinguishing between normal contraventions, and danger. Imminent danger might justify an urgent Court application, in which all time limits could be set aside.

Ms Smuts said that this would clearly be a public interest situation.

Dr Oriani-Ambrosini noted that when deadlines were set under PAIA, a requestor could still not approach the court for a mandamus order until the official had failed to comply with the deadlines set out in the Act.

Mr Swart suggested that seven days might be a better period.

The Chairperson thought that it would be preferable to use “not more than 14 days” which could include anything from one to thirteen days.

Dr Oriani-Ambrosini suggested wording of “14 days or any shorter reasonable time”

Ms Smuts noted that in practice, a person who had definite information of a pending nuclear disaster would be unlikely to follow this route. However, if there was a suspicion of something less certain, and an indication of urgency, then the 14-day period could apply.

The Chairperson asked the State Law Advisors to draft something that allowed for the shorter time period for a response in an urgent matter, and a different time period (avoiding mention of “a reasonable time”) for other matters.

Mr Swart said that this related to an override, and that another time period would be involved if there was an appeal. He wondered if all the processes, including the appeal, should fall within this period.

Ms Smuts questioned whether it was fair that, for instance, an engineer at a nuclear plant should have to find the money to obtain a mandamus order.

Mr Landers pointed out that a situation where someone might want to hide evidence of a crime was quite different from a nuclear explosion. There was always the option of an urgent Court application.

Mr Swart said that an urgent court application would normally do away with the time periods set by the Rules of Court. However he wondered whether the same would apply to reducing time periods set by statute.

Dr Oriani-Ambrosini reiterated that administrative challenges proceeded from a failure to comply, within set time periods. A court could not, as standard procedure, force an administrative agency to do something within a shorter period than set out in the legislation.

Ms van Wyk asked if this was covered at all in the Whistleblowers Act.

Mr Swart noted that this Act set out a very precise process, with time periods, so it was not of assistance.

The Chairperson said that policy would no doubt dictate how the Court could deal with this, and he did not think a Court, in urgent matters, would be bound by statutory time periods.

Dr Oriani-Ambrosini agreed that it could do so if the applicant could make out a full case already, but the Court would not shorten time periods to allow for a “fishing expedition” for information. Part of the prima facie case was the failure of the agency to comply with statutory obligations, and this could not be alleged if the time periods had not lapsed.

The Chairperson noted that the test for obtaining a temporary urgent interdict was “open to doubt”.

Mr Maynier asked if Mr Dlomo could give a view on how this could work in practice.

Mr Dennis Dlomo, Advisor, Ministry of State Security, noted that all requests would come through PAIA and the automatic review process would be triggered. That could be fast-tracked if there were “imminent” matters, as set out in section 46 of PAIA. He gave the example that if a journalist was in possession of leaked information, that journalist could, in theory, return the documents to the police, then make an application calling for release of that information, in the public interest.

Ms Booyse said that if the applicant made out a good case, the Court procedure would allow the application and grant interim relief. She would provide a further written opinion. Grounds for urgency (the threat of safety) would have to be satisfactorily set out in the application.

Mr Swart repeated that a Court could condone non-compliance with the time periods set out in the Rules of Court, but he was still not sure whether, in the case of an urgent application, the time periods set out in other legislation could also be shortened. It would be logical to do so, on the grounds of public policy, but he asked if the State Law Advisors could also look at that point.

Minimum Sentences
Mr Landers said that the offences clauses needed to be redrafted. The Committee may need to give an indication to the State Law Advisors as to what specific sanctions it required, or could ask the drafters to present some suggestions on sanctions to the Committee.

Mr Swart clarified that there were a number of issues to be considered. Firstly, the minimum sentence periods would need to be removed, and replaced by wording using “up to …. years imprisonment” or specify fines, or both. The ANC had also raised the need to look at proportionality. It had also said that there was a need to increase sanctions for corrupt activities.

Mr Landers agreed. He noted that the Prevention and Combating of Corruption Act (POCA) could also give some guidance. An official classifying information in order to hide some malfeasance was already guilty of corruption.

The Chairperson asked for confirmation of the ANC’s proposals on espionage.

Mr Landers said that all parties seemed to agree with the ANC’s suggestions that in respect of espionage only, the minimum sentence provisions should apply.

Mr B Fihla (ANC) suggested that Members should give specific instructions to the State Law Advisors.

The Chairperson formally requested the State Law Advisors to undertake a redraft, so that the minimum sentence provisions remained in respect of espionage, but would be removed in respect of all other offences.

Ms Smuts suggested that perhaps the provisions around sentences needed to be discussed together with the clauses on offences. The DA would be moving for the deletion of “hostile offences” and she would not like to create the impression that all other sentences for offences would be approved. However, she was not suggesting that the offences clauses be dealt with immediately. She noted that she had been informed that the Jewish Board of Deputies had made another submission, which dealt in part with the offences, and asked whether this was correct.

The Chairperson noted that the time period for submissions had expired and he was not aware of this.

Working drafts and documents
The Chairperson asked whether the IFP and DA wished to present anything new, which deviated from the proposals presented in written form earlier. If so, he suggested that these be presented in writing, so they could be made available to all other Members, and where there was agreement on issues they need not be debated in such length.

Ms Smuts said that the DA had conceded already that all the security services, not just intelligence services, should be brought under the Bill.

Dr Oriani-Ambrosini said that as discussions proceeded, some of what the IFP had proposed earlier became irrelevant. He had e-mailed some other suggestions already to Mr Landers and the Committee Secretary.

Mr Landers then addressed the question of a new Working Draft of the Bill. The ANC had made some substantive proposals recently to amend the Bill. He wondered if the State Law Advisors could produce an updated Working Document to show all proposed changes. This would also assist the Committee in its engagement with civil society.

Ms Booyse said that it would possible to produce something quite soon, although all the insertions and deletions would need to be checked.

Mr Maynier and Mr Swart suggested that a request to produce this by the following day was too soon.

Ms van Wyk would also prefer that on the following day, the changes effected by today’s discussion should b examined and agreed.

The meeting was adjourned, until 11:00  on Thursday 28 July.

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