Protection of Information Bill: Possible inclusion of public interest defence, Clauses 39 to 45

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

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

The Committee continued its deliberations on the Promotion of Access to Information Bill (the Bill). In respect of clauses 38 and 39, opposition parties proposed the inclusion of a public interest defence. The DA believed that, in principle, the offences of unlawful possession and disclosure ought to apply to security and intelligence personnel, as in comparative jurisdictions, and said that the provisions of the Public Disclosure Act were actually not protecting whistleblowers, particularly where corruption was taking place in the very structures to which a whistleblower should report. It was thanks to investigative journalists that information vital to citizens had been made available in the past. The media had an enshrined right to media freedom. The first proposal, by the DA, was to include wording that “any act which constitutes a genuine and bona fide act in furtherance of the public interest shall not constitute an offence”. The ACDP supported the need for a public interest defence, noting that there was international precedent for it, and that the unique circumstance of South Africa in any event would justify its inclusion. The difference between the built in override, and the inclusion of the public interest defence was outlined. The ACDP Member argued that even if the ANC was opposed to including a broader public interest defence, then it would still be logical and correct to have a narrower public interest defence, framed along the lines of the Promotion of Access to Information Act. This would enhance the constitutionality of the Bill, encourage the fight against fraud and corruption, and engender public confidence. He stressed that the final decision whether to allow that defence would still rest with the courts, who would weigh potential harm caused by the disclosure against public interest. The IFP, although it did not table specific wording, proposed that South Africans should be given the same freedom as Americans enjoyed under their First Amendment, and urged that where the intelligence services did not do a proper job of keeping information secure, then that information could be made public. The freedom of the media should be absolutely confirmed, particularly in view of its past invaluable protection of real freedom. The IFP Member said that citizens were overwhelmingly in favour of including this defence.

The ANC conceded that although this clause was not crafted to cater exclusively for journalists, they were particularly susceptible to contraventions, because of their role in society. The anxiety about the current wording of the Bill was understandable, and careful consideration would be given to the issues raised. However, clause 23 provided a legitimate process for a person who came into possession of classified information to hand it in, and then apply for its release. The Bill should provide that if the request was granted, then the requestor should be exempted from criminal sanctions between receipt and the decision on release. The ANC stressed that the media, just as any other citizen, was obliged to observe the law, even if it disagreed with the classification, until that classification was altered by a competent authority. The public interest defence seemed to imply the impression that the media did not have to take steps to obtain the information legally. The DA stressed that this defence would relate only to publication of information that hid wrongdoing. The ANC had stressed that it would be opposed to classification to hide wrongdoing, and if the publication of the information would actually benefit a democratic state, then it was clearly in the public interest. The DA then proposed another possible formulation, by insertion of another subclause into the existing clause 38, incorporating similar wording as clause 17(1)(b)(i) to (v). The ACDP agreed with both formulations, but would submit an even narrower wording, based on the PAIA wording, as this might assist the parties to find consensus. The parties would consider the submissions and debate the matter further in the following week.

In respect of clause 40, the State Law Advisors were asked to add words reflecting the element of “unlawfulness”. The DA suggested that clause 41 was misplaced in this Bill, firstly because the Bill should not deal with “valuable information” and secondly because it was largely repeating provisions of the National Archives and Records Services of South Africa Act. The State Law Advisors were asked to compare the wording and would report back. In discussion of clause 42, Members indicated their view that the current penalty of three years imprisonment was too low, and suggested that maybe consideration should be given to providing differing penalties according to the categories of wrongful classification. The IFP suggested that penalties in clauses 38 and 42 should correlate. The DA and IFP proposed that clause 43 be deleted, as it was a loophole that could nullify the effects of clauses 15 and 17. The ANC asked that the clause be flagged for further discussion. The State Law Advisors were asked to advise on the wording of clause 44 in relation to extra-territorial application and concepts of domicile or residence. The IFP wished to address the Committee on clause 45.

Members then briefly discussed the revised documents presented by the State Law Advisors, and confirmed most of the changes, with the exception of a new insertion into clause 23(5) and wording relating to the composition of the Review Panel, which it would reconsider. State Law Advisors also reported back briefly to the Committee on queries raised in relation to the functions of the Panel and Agency, in relation to clause 30.

Meeting report

Protection of Information Bill: Clauses 30 to 45
Clause 39
The Chairperson noted that this had been briefly discussed on the following day. It was creating an offence for someone who was in possession of a classified document, but did not take it to the South African Police Service (SAPS). He noted that the DA had an objection to the clause.

Dr M Oriani-Ambrosini (IFP) said that, for the same reasons as he objected to clause 18, he also objected to this clause, which seemed to place a burden on the individual to do the job of intelligence services.

Ms M Smuts (DA) asked whether she could now raise her submissions on the need for a public interest defence, relating to criminalisation of disclosure and possession, in relation to both clauses 38 and 39, as briefly raised previously. She agreed with Dr Oriani-Ambrosini that the offences of unlawful possession and disclosure ought to apply to security and intelligence personnel, as they did in comparative jurisdictions. It was not sufficient to allow for lawful disclosure only under the Public Disclosures Act (PDA). This Act required a person wishing to lodge a complaint in relation to the public service to his own hierarchical structure, but this defeated the purpose if the corruption was in fact taking place higher in the hierarchy. Whistleblowers were not properly protected in South Africa.

Ms Smuts wanted to address both unlawful possession and unlawful disclosure together. South African citizens were able to ascertain what was happening, in many instances, because certain information had been leaked to investigative journalists, who brought it to the attention of the public. The same applied to one faction of a political party being able to find out what was going on in another faction. This was very important for democracy, and it was the Constitutional right of South Africans to receive such information. She reminded Members that under the international codes, it was possible to restrict information only when necessary, to protect national security. The media had an enshrined right to media freedom. The public interest defence would flow from those provisions. She proposed a formulation, which she said was based on one suggested by the Kasrils Ministry in the past, along the lines of:
”Notwithstanding any other provisions in this Act, any act which constitutes a genuine and bona fide act in furtherance of the public interest shall not constitute an offence”. She stressed that this would then rest on the two grounds of good faith, and the public interest. It was possible to suggest another formulation, which listed further matters, although the DA would prefer to see a simply and clearly drawn defence. She drew attention to a legal opinion drawn for the South African Jewish Board of Deputies, at page 21, where it was suggested that there should be no fears about a public interest defence. What she had suggested was not too wide, and it was not suggested that the terms be defined, as this should be left to the Court to decide.

Mr S Swart (ACDP) said that he supported the DA’s position that a public interest defence was needed. Should the ANC persist in its opposition to such a defence, then he requested that it must present cogent reasons and counter-arguments. He noted that there was international precedent for a public interest defence, although the United Kingdom (UK) model did not have such a defence. In any event, South Africa was in a unique position, so it should not be hidebound by exactly what was done elsewhere. The Promotion of Access to Information Act (PAIA) was introduced, post-apartheid, and it took the view that legislation aimed at protecting information should provide, where there was a breach, for punishment only of those officials who had a duty to protect the information. Mr Landers had mentioned the need for, and the responsibilities attaching to all Members to ensure that there was Constitutional compliance.

Mr Swart emphasised that it was important to understand the difference between the built in override, and the inclusion of the public interest defence along the same lines. He urged that even if the ANC did not agree with the broadly-framed public interest defence, and he had heard no counter-arguments on this, then a narrow approach was still justifiable. Documents could already be released under PAIA, despite the threat that their content might pose a threat to national security, if it was considered justifiable. If this provision existed in PAIA, then it would be anomalous and even illogical not to allow a similar, limited public interest defence in the Bill. The public interest concept was not unknown, as it was not only in PAIA, but also in the PDA, and it was a very important public consideration. A narrowly-crafted public interest defence would enhance the constitutionality of the Bill. It would encourage the fight against fraud and corruption, since it envisaged that no journalist would be prosecuted for exposing corruption. He noted that this was not only in the interest of the media but of every citizen. He thought that a political win/win situation would be achieved, if this was included. At present, the main concerns with the Bill remained as the lack of a public interest defence, and the broadness of the definitions, on which the Committee was still working.

Mr Swart asked the ANC to consider the practical effects of including this defence. Leaving aside the media, it was notionally possible that a person could remove another person’s property. When charged with theft, he could raise the defence that he was unaware that the property belonged to another person, in which case he could be acquitted. If that person removed property that included classified documents that, for instance, showed that there was imminent meltdown at Koeberg Power Station, then he should be able to argue that although he was technically in breach of the law by revealing this, there was an imminent danger to public safety, and it was clearly in the public interest that citizens be told about it. Mr Swart wanted to stress that this person’s acquittal would not be automatic, as he would have to persuade the Court that his defence was valid. The Court could still refuse to accept the defence, but that person was not automatically being found guilty, without any opportunity to raise a defence. Just as the Court had done with PAIA, it would have to weigh up the harm with the public interest. In Canada, there was a narrow public interest defence, along the lines of the whistleblower legislation. However, it was most important to note that a journalist in Canada, as he had mentioned previously, had been charged with contravening a very similar section to the one contained in this Bill, and the Court in Canada had struck down the section as unconstitutional. He wondered if South Africa, knowing that, still really wanted to include the clause without the possibility of a defence, and risk having it struck down on the first occasion that a person was charged. He also added that in New Delhi, a journalist had recently been acquitted, having raised the defence of public interest. Even in the UK, in the Belgrana case, the jury had acquitted the journalist who had divulged the information. The UK government had not charged people, as it was reluctant to test public opinion on the issue, fearing that it would lose.

Mr Swart said that he thought that the parties would be able to achieve consensus, which would be not only a major breakthrough and result in public acceptance, but would also be logical when the Bill was read with PAIA. He thought that the parties seemed to have been missing reaching consensus on the broad concept.  The ACDP and DA agreed, in broad terms, on the need for a public interest defence. He appreciated that the ANC may have difficulty with a broad definition and he therefore proposed, as a compromise, inserting a narrowly-crafted defence along the lines of PAIA. That was an important distinction. If the DA submission was not accepted, then he urged that his alternative, narrower approach be adopted.

Dr Oriani-Ambrosini, in introducing his submission, said that he would like to clarify the distinction between the public interest defence, the public domain defence and the erroneous classification defence.

The Chairperson reminded Dr Oriani-Ambrosini that he should address the Committee only on the public interest defence at this stage.

Dr Oriani-Ambrosini agreed that he would do so. He pleaded that all Members should focus on the message, rather than the fact that parties had different views. He said that in the world today, a coup d’état was less likely to occur with armies and tanks taking over the streets, but was more likely to happen, quietly, through deviant sectors of security services. That could happen in a situation where secrecy was maintained. He agreed with his colleagues that this was not only to do with the media, but affected the rights of the public. He thought that South Africans should be given the same freedom as Americans enjoyed under the First Amendment. From World War II, and throughout the Cold War, not a single journalist had ever been prosecuted, in America, for having published classified information. The USA First Amendment specified hat the law Congress could make no laws at all about the Press.

Dr Oriani-Ambrosini agreed with concerns expressed earlier that there seemed to be a mindset of trying to get either the public, or the law, to do the job of the intelligence services. He felt that if the intelligence services did not do their job, then the information must be made public. Although the ANC might attempt to answer this by stating that the Classification Review Panel (the Panel) was now in place and would ensure that nothing was done incorrectly, in fact this would be placing far too much confidence in the State. He stressed, however, that no matter how many bodies there might be (such as the South African Human Rights Commission, the Public Protector and the Auditor General) who would try to ensure that matters were dealt with correctly, he would not trade all of those for the basic concept of freedom of the Press. Virtually every wrongdoing that came to the public’s attention in the past had been exposed, and human rights violations had been prevented by the involvement of the Press, who had been more effective in protecting real freedom than all other bodies. It did not make sense to trade freedom in civil society with the establishment of an organ of state, which either could work well, or alternatively not work because it suffered the same problems of under-funding and lack of capacity experienced by other organs. The Press was a certainty in South Africa. That freedom should never be traded away simply because another Panel may be established.

Dr Oriani-Ambrosini finally said that he really did not understand why, when the entire country, from COSATU to religious leaders, was pleading for inclusion of a public interest defence, the ANC persisted in its opposition to it. There was a complete divergence between public will and policy, that made him wonder for whom the ANC was carrying a brief.

The Chairperson warned Dr Oriani-Ambrosini that he was now getting into political discussions.

Dr Oriani-Ambrosini agreed that he was getting into this, precisely because he believed this to be his Constitutional job, to bring forward the voice of the people. To the extent that the ANC was not representing the will of the nation, there was a “divorce” between policy and the public. If the will of the nation was weaker than that of the security apparatus, and if government did not listen to the people, then effectively a coup d’état had already taken place. There was absolutely no reason to give this protection to citizens, and if the Bill persisted in criminalising possession and disclosure without also providing adequate defences, then it would be going even one step further than the Minimum Information Security Standards (MISS), since journalists could not currently be prosecuted because the MISS could not be enforced. The most vital concept was freedom of the media, and the media should not be dissuaded from performing their essential function because of fear. He appealed to the ANC to do what the nation wanted, and to provide for a public interest defence that was clear and unambiguous.

Mr A Maziya (ANC) noted that he had had listened to the motivation but wanted Dr Oriani-Ambrosini to make his point succinctly.

Mr L Landers (ANC) said that the Bill rendered it an offence to receive or have possession of classified information, and to disclose it. The media was particularly susceptible to such contraventions because of its unique role in society. The receipt of classified information would be an offence, and the publication of this information would be another offence. He said that the anxiety about the Bill’s current wording was understandable and the issues raised required careful consideration.

Mr Landers said that clause 23 went some way to covering the media by providing for a process for the media to request classified information. A journalist who had received classified information would be in the position of knowing what was contained in that document. The journalist could then hand in the document to the South African Police Service (SAPS) and could formulate a request, and obtain that information properly through a legitimate process before publishing it. This must be distinguished from the position where there was publication without any attempt to follow the legitimate route. If the request for disclosure, whether at organ of state or Ministerial level, was successful, then the Bill ought to make provision for the requestor to be exempted from criminal sanctions during the period from receipt up to the decision. The decision to disclose must carry with the implication that the information should not remain classified, and the decision to disclose must operate retrospectively to an earlier point. It would be anomalous and contrary to legality for the Bill to criminalise the actions while the information remained classified.

Insofar as the publication of information obtained illegitimately was concerned, it was necessary to consider the issues of media freedom and the Rule of Law. It was  not open to the media to ignore the decision to classify the information, even if it believed that the decision was invalid or that the information should have been declassified. The Rule of Law required the media to comply with the law, which meant that the media was bound to respect the decision on classification until that decision was altered by a competent authority. The Constitution contained a section dealing with equality, and the media, like any other citizen, was bound by the Rule of Law. The legal position was stated in Oudekraal Estates v City of Cape Town, which stressed that until an administrative decision was set aside by a Court, it existed in fact, and attracted legal consequences that could not simply be overlooked.  The proper functioning of a modern State would be compromised if all administrative facts could be ignored. For this reason, the law recognised that if an administrative act was subsequently declared unlawful, it could produce legally valid consequences for so long as it was not set aside. He therefore confirmed the ANC’s view that if the media believed that the information should be disclosed, and that the public needed to be informed, it should seek to obtain the information through legitimate channels, by taking the steps set out in the Bill to obtain access. It could not simply go ahead and publish the information provided in an illegitimate way.

The ANC understood a public interest defence as meaning that the media should be allowed to rely on such a defence if it published information that had come into its possession illicitly, without having to follow the steps to obtain that information legally. It was necessary to distinguish between the current override in the Bill, making it mandatory for the authority to disclose information whether there was imminent public danger, and the public interest defence that would absolve the media from liability for having posses of or disclosing classified information. The Court would have to weigh competing interests of national security and the rights of the media, as set out in the Constitution. There were other legal precedents, to which he would not refer at the moment. He wanted to stress that classified documents should never be allowed to “float around”, which was the reason for the provision that forced people in possession of those documents to return them to the necessary authority. He repeated his view that documents acquired illegally must be handed back and then a formal request should be made before they were published. He had heard the comments, made several times now, about the possibility of a challenge being made to the Constitutional Court, and would in fact welcome such a challenge.

Mr Landers then wanted to deal with some of the points more specifically. He said that Dr Oriani-Ambrosini seemed to suggest that the First Amendment was something wonderful, but said that a whistleblower like Bradley Manning could be punished, but the journalist would not. He did not believe that this was anything to boast about. He said that in fact there were still coup d’états in the “old” sense, as shown in Iraq, Libya, Gambia and Guinea-Bissau. He disagreed with the implication by Dr Oriani-Ambrosini that only those who leaked information, and not journalists, should be punished, and challenged other members to explain what was correct about that.

Dr Oriani-Ambrosini was allowed a chance to respond. He commented that this was the first time he had seen a response to “dialogue in the Committee” being delivered from a prepared document. He stressed that the points raised did not set out what he, or the IFP, wanted, but what the country wanted. In relation to offences, he said that anyone charged with an offence should be able to raise a defence that the disclosure of classified information was done for a compelling reason of public interest or importance. He reiterated that the challenges confronting modern democracies were not about the security apparatus of the military, but were instead to do with the security services taking over the ranks of government, from inside, in a covert manner, running their own operations. This had been illustrated by the Iran-Contra scandal. It was only media exposure that revealed that the Central Intelligence Agency (CIA) was in fact running a private war in Nicaragua as even Congress had not been involved in or aware of that. Journalists should have the latitude to seek information and do proper investigations. It was not for anyone else to tell them how to do so. The Constitution’s equality clause had nothing to do with the media. It was not the right to publish, but the right to know, that was vital.

Mr Maynier also responded to the ANC, saying that Mr Landers had framed the problem as one dealing with all classified information. In fact, the problem was focused on a particular kind of classification, and that was classified information, since the publication of that information would reveal some wrongdoing. Mr Landers had been at pains to make the point that it was not the intention of the ANC to hide wrongdoing and corruption with this Bill. It was precisely for that reason that clause 17(1)(b) was included, which said that information that concealed any unlawful act should not be classified. Mr Dlomo from the Ministry of State Security had also stressed that documents that contained information about an unlawful act could not be classified. If that was so, then there was no reason not to disclose such documents. The rationale behind clause 17(1)(b) was that parties recognised that information that revealed some kind of unlawful act could not prejudice or harm a state that was democratic. This was recognised as a principle in the Bill. Ms Smuts had argued for a broad public interest defence clause, as set out in the Memorandum attached to the 2008 Bill. The alternative, as suggested by the ACDP, was to craft a more narrow defence.

Mr Maynier then suggested that clause 38 could be amended, firstly, by renumbering the current wording as subclause (a). A new subclause (b) could then be inserted, to read “Unless such classified information is used to….” and this would then be followed by the wording taken from clause 17(1)(b)(i) through to (v).
This would be slightly wider than section 43 of PAIA. It was necessary to have due regard to the principle that release of information about unlawful acts in fact would advance the values and principles of a democratic state. Therefore, a person revealing classified information would be guilty of an offence unless this information contained details of an unlawful act, administrative error, or those aspects currently described in clause 17(1)(b)(i) to (v). He also wished to clarify that this proposal related to both clauses 38 and 39.

Ms M Mentor (ANC) said that the points made sounded reasonable. They were noted, and the ANC would engage on the submissions.

Mr Swart aligned himself with what Mr Maynier had said. He asked that all proposals made so far should be considered by the ANC. He added that he would submit another proposal, which would set out the concept of the section 46 override, and repeated that as a defence. This was an even narrower framing of the position, and should also be considered as an alternative.

The Chairperson asked if the two documents could be circulated, so that they could be combined into one document.

Ms Mentor asked an inaudible question, but the Chairperson assured her that the State Law Advisors had been asked to look at redrafting clauses already, and the alterations she had referred to would be made.

The Chairperson said that it had been very helpful for the parties to put specific wording for consideration. The ANC would be looking at their proposals and would report back. All the proposals would be circulated.

Clause 40
The Chairperson noted that this clause dealt with information peddling.

Ms Mentor asked whether a member of the public, who might not be sophisticated, and who came across information that seemed to warrant being looked at by intelligence structures, would be guilty of an offence if that information turned out to be fabricated.

The Chairperson said that a court would be unlikely to make a finding of guilty, because the words “knowing that if is false or has been fabricated” were included.

Mr B Fihla (ANC) said that this seemed to be contrary to the maxim “ignorance of the law is no excuse”.

The Chairperson also suggested that the element of “unlawfulness” should be added in also to this clause. He was generally in favour of clauses that were clear and did not rely upon either unlawfulness or intent being implied.

Clause 41
The Chairperson noted that the principle of unlawfulness was captured in this clause.

Ms Smuts said that this clause pertained to valuable information, and not to sensitive or classified information. A sanction for destruction or alteration of valuable information was already set out in the National Archives and Records Services of South Africa Act (the National Archives Act). For this reason, although she agreed with what the clause was trying to achieve, she felt that it was misplaced.

The Chairperson said that he had looked at the wording of this in the National Archives Act, and suggested that it was useful to have cross-referencing.

Ms Smuts said that the elements of the offence were not stated quite the same in the two pieces of legislation.

The Chairperson asked the State Law Advisors to ensure that the wording of this offence, in the Bill and the National Archives Act, was correlated.

Mr Landers made the point that even if an offence was provided for in another law, there was no harm in repeating it.

The Chairperson agreed, saying that often offences were stated in more than one statute. It was up to the prosecutor to decide under which piece of legislation a wrongdoer would be charged.

Ms Mentor asked what the intention was in clause 41, and asked whether it should not also seek to prohibit and sanction destruction of classified information.

The Chairperson confirmed that this clause was referring to “valuable” information, and reminded those present that this Bill sought to protect both valuable and sensitive (or classified ) information. Valuable information, which was defined as information in the hands of an organ of state, should be protected against interference, loss or destruction. There would be no point in trying to protect the information, without also stating a sanction. The Bill set out the guidelines under which valuable information was to be protected.

Ms Mentor thanked the Chairperson for this clarity, and said that she would be loath to exclude such a clause.

Ms Smuts asked if this was implying that the ANC did wish this Bill to provide for “valuable” information.

The Chairperson noted that there had not been any final proposals to the contrary.

Ms Smuts challenged the Chairperson, saying that in fact the DA had reiterated several times that valuable information had no place in this Bill,

The Chairperson said that if valuable information were to remain in the Bill, then clause 41 would be relevant.

Ms Smuts said that she still felt it was a duplication of other legislation.

The Chairperson reiterated his request to the State Law Advisors to cross reference this clause with the National Archives Act, and report back to the Committee

Clause 42
Mr Landers suggested that the penalty provided for in this clause should increase. A period of three years imprisonment was hopelessly inadequate. He suggested that this be compared to what was in the Prevention of Corruption Act, to assist and guide Members.

The Chairperson asked if it was intended that a minimum sentence should be added.

Mr D Stubbe (DA) raised the point that Members had previously discussed and agreed that sentences might differ according to the type of information that was involved. It was possible also to look at adjusting this clause in a similar way. If a person decided to classify something as Top Secret, knowing that s/he should not do so, this would, to his mind, be more serious than classifying something incorrectly in the Confidential category.

Dr Oriani-Ambrosini said that the advantage of not stating minimum sentences was that the judge could make a proper decision, based on the gravity of the offence. However, where there was improper classification, it made little difference to the public whether the classification, resulting in the withholding of information from the public, would be classified as Confidential or Top Secret, because this made no difference to the public. However, on that point he had no particularly strong feelings.

He did, however, feel that another point was very important. The IFP had suggested that there was no need to look at other legislation to identify a proper sanction for this offence. There was a need to reach a balance with clause 38. The same sanction should be provided for a breach under this clause as was provided for in clause 38.

The Chairperson asked if Dr Oriani-Ambrosini was then suggesting an increase of the sanction to five years.

Dr Oriani-Ambrosini said that ideally he would like to see it far stronger; although he had originally suggested a 25-year term of imprisonment, this may, on reflection, be too severe.

Mr Landers said that Members needed to agree to provide also for incorrect classification in the Top Secret, Secret and Confidential categories. He did not agree with the points made by Dr Oriani-Ambrosini, and stood by his view that the Committee should look at (but not automatically adopt) what was in the Prevention of Organised Crime Act, to assist the Committee in its final decision. He still thought that a five-year term was too little.

Clause 43
Mr Maynier said that the DA, as outlined in its written proposals, felt that this clause must be deleted. The definition of “state security matter” was very broad, including virtually anything to do with the State Security Agency (the Agency). He cited that this Bill would, for instance, make it an offence if the Director-General’s lunch menu were to be disclosed. This was a very draconian clause that should be deleted. This kind of disclosure was already included in the security legislation, insofar as it related to classified information.

Dr Oriani-Ambrosini agreed that it was necessary to decide what a “state security matter” was. Essentially, the Bill indicated that it was something over and above what was classified information. The divulging of classified information would attract a sanction. The Committee had gone to great lengths to ensure that everything that should be classified was in fact being classified, so this clause dealt with “other matters”. He made the point that if, in the example given by Mr Maynier, there was any sensitivity about the Director-General’s lunch menu, then it could be classified. It made no sense to include this clause in the Bill. It seemed a reflection of the security mindset of the apartheid days. In addition, it was a major loophole, as it would enable the security services to classify everything that was not properly classifiable under clauses 15 and 17, by referring to them as “security matters”. If this clause remained, then the Committee may just as well do away with the criteria for classification.

The Chairperson confirmed that the IFP and DA were asking for the deletion of this clause in its entirety.

Ms Mentor did not agree with the deletion, as she thought that this might nullify the whole Bill. She agreed with her colleague Mr Landers that some problematic clauses such as “state security” should be more carefully considered and she asked that this clause be flagged for further debate.

The Chairperson agreed, and noted the flagging of the clause.

Clause 44
Dr Oriani-Ambrosini said that the heading of clause 44 should refer to “Application of the Act” instead of “Extra-territorial application of the Act” because, technically speaking, there was no such thing as extra-territorial application, although this term had found its way into use. Usually, provisions of this nature were limited to citizens, and a South African citizen, wherever s/he was based, should be loyal to the country. Only a citizen could be charged with treason. A person who was “domiciled” in the Republic had no political allegiance or political rights, and he would suggest the deletion of “or any person domiciled in the Republic”.

Ms H Mgabadeli (ANC) was not sure that this was correct, and said that the deletion suggested might lay the way open to offences by non-citizens.

Ms Mentor agreed, and thought it was necessary to get some expert advice on this point. She made the point that a person in South Africa for the purposes of study would be domiciled in the country, but could be excluded from being charged and sanctioned if s/he were to commit acts tantamount to treason.

The Chairperson said that there was also a difference between those who were domiciled, and those who were “residing” in a country. “Domicile” implied some form of permanence.

Dr Oriani-Ambrosini said that this created an additional difficulty. A non-citizen could be given Permanent Residence status in South Africa, in terms of the Immigration Act. However, domicile was an elective choice, including temporary domicile for contractual purposes. This was an uncertain category. He pointed out that severe criminal sanctions were attached to this clause, and if the Committee wanted to pursue the extension of the Act to non-citizens outside the borders, then the concept of “permanent residence” should be applied.

The Chairperson said that this still did not cover domicile. A number of other laws existed to try to prevent similar situations, and so he asked the State Law Advisors to consider the matter, and to try to harmonise this wording with that used in other pieces of legislation that were intended to apply to those who were not citizens. He did not think that the concept of “domicile” should be removed, but “permanent residence” might need to be included.

Dr Oriani-Ambrosini said that if the word “domicile” was retained, then a definition should be inserted, as there was no standards definition, with wide variance across Court rules and criminal provisions.

The Chairperson had no objection to that, but stressed that it was necessary to capture whom the Bill intended to target.

Mr Landers asked why the USA government had wanted to extradite Julian Assange to bring him before an American court. His alleged acts occurred outside the USA borders. He asked if South Africa would be acting correctly if it wanted to do the same.

Clause 45
Dr Oriani-Ambrosini said that clause 42 was attempting to punish people within a state organ, whilst the other sanctions related to wrong-doers outside organs of State. He wondered if it was correct to specify that written authority from another organ of State should be obtained, in order to prosecute.

The Chairperson asked Members to consider this matter.

Dr Oriani-Ambrosini noted that the Committee was pressed for time but asked for the opportunity to raise other issues under this Chapter, at some other appropriate time.

The Chairperson confirmed that he would be given an opportunity.

Redrafted clauses: Discussion on State Law Advisors’ revised document
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, noted that the State Law Advisors office had prepared a revised document reflecting the changes and requests from the previous day, and that a second document set out the alterations between clauses 17 and 44.

Referring firstly to the document entitled “Proposals on clause 23”, she noted that the State Law Advisors wished to suggest insertion of additional wording into subclause (5). The revised clause had stated that a court may condone non-observance of the time periods referred to in section 23(4)(a), but it was suggested that, in addition, the words “in bringing an urgent application to Court, on good cause shown” should be added.

The Chairperson asked why this was necessary. The existing wording as set out in clause 23(5) already seemed to be clear enough.

Dr Oriani-Ambrosini agreed. Although it was likely that this clause would be used in the context of an urgent application, it may not always be the case, and the Bill should not restrict the discretion of the Court.

Ms Mentor asked what the effect of this addition would be.

Ms Booyse said that the drafters thought that it made it quite clear that the application must be an urgent one.

Ms Mentor thought that then there was no harm in adding the words.

Dr Oriani-Ambrosini did not agree; the addition of these words would have the effect of restricting the scope of the clause, and it would be preferable to leave them out.

The Chairperson agreed and said that leaving the words out would result in a broader provision. However, . no final decision would be taken now; these words could be included in the next revised document, and debated again. The remainder of the changes in the document were presented for checking only, and would not be debated.

Ms Booyse then indicated the changes to page 2, by insertion of a new subclause (2) under the first heading for the Classification Review Panel clauses (still numbered xxx). Under the heading dealing with “Appointment and Constitution”, there had been a reformulation of the first subclause, which now reflected the term “National Assembly” instead of “Parliament”, and in respect of the subclause dealing with the presentation of the shortlist of candidates.

Dr Oriani-Ambrosini said that there was one technical matter that he wished to raise in relation to the qualifications of the Panel members. Although the Committee had, on the previous day, agreed that the words “at least one member” should be moved up to the main body of the subclause, rather than being repeated under each sub-paragraph, this had resulted in an anomaly. The reworded clause could be interpreted as meaning that one member should satisfy all the criteria set out in the following subparagraphs, rather than that the Panel should include one member with expertise in the first area, one member with expertise in the second, and so on.

The Chairperson said that he would be prepared to open the matter for discussion if Members felt this was a valid point. It could be that all members of the Panel had the same knowledge and experience, but one might be appointed specifically for his experience in the Constitution, whereas another might be appointed for her Archive knowledge.

Ms Mentor agreed that this was a possibility, but Dr Oriani-Ambrosini had made a valid point. The intention was clearly to have five people, and it could be that the wording, before being changed, provided better clarity.

Dr Oriani-Ambrosini said that of the four members, three must have qualifications as set out, and the fourth need not. However, the way it was now written suggested that one member may have qualifications in all three areas set out, whereas the other three had no such qualifications.

Mr Stubbe said that the wording “suitably qualified” seemed to clarify the point.

The Chairperson confirmed that the Committee clearly wanted the Panel, as a whole, to have these qualifications, although not every member should have all the qualifications. He asked the State Law Advisors to consider whether the new wording did properly capture this intention.

Ms Booyse continued that on page 6, subclause (1) had been amended, to reflect that the Panel may instruct the head of the organ of state to change the classification status, if necessary.

Working Draft of Clauses 17 to 44
Ms Booyse apologised that the page numbers did not appear; this would be amended in the next draft. She noted that clauses 21, 22 and 23 now reflected the amendments discussed. The new clause dealing with the Classification Review Panel had been inserted after clause 24, before the part of the Bill that dealt with appeals, but Members could discuss whether this was appropriate.

Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, then dealt with the queries that the Committee had raised on clause 30. Much of the work that the original Bill had described as a function of the Agency had, when the Committee had resolved to have a Classification Review Panel, then clearly been assigned to the new Panel. He noted that the functions set out in subclause 30(1)(a) would reside in the Panel.

Ms Mentor wondered if the monitoring of policy and progress set out in subclause (a) amounted to usurping of the functions of other constitutionally mandated institutions.

The Chairperson said that the Committee would still need to debate this. He proposed that the presentation be completed first, and then Members could consider the matter over the weekend.

Mr Makabeni resumed his presentation, clarifying that the Committee had asked the State Law Advisors to give their view as to whether the functions set out in the original Clause 30 would lie properly with the Agency, or the Panel. The Committee had discussed how the legislation relating to the Inspector General and Auditor General had been formulated and would still need to decide what it wished to say about on-site inspections and reviews, as mentioned in clause 30(1)(b). The Agency would retain the functions set out in clause 30(1)(c)(i). The State Law Advisors proposed that clause 30(1)(c)(ii) should be removed completely, as these had nothing to do with either the Panel or the Agency.

Ms Smuts asked if the Minister was no longer to be the appeal body.

Mr Makabeni said that the State Law Advisors were of the view that the Agency would not be overseeing appeals by Ministers. Reviews of decisions would be done by the Panel. The Panel could not undertake support and advice to the Minister in relation to appeals, and then review the appeal.

Ms Smuts then noted the reference in this subclause to clause 25, which related to the appeals procedure. She questioned if this referred to the appeal to the retired judge.

Mr Landers confirmed that an appeal to that judge would be the final stage.

Mr Makabeni noted that matters set out in clause 30(1)(d) would be done by the Panel. He then moved on to clause 30(2), and said that the functions set out in (a) and (b) should be retained by the Agency. The staff of the Panel would carry out functions set out in clause 30(2)(c)(ii) and the Panel would also take over the functions listed in clauses 30(2)(d) to (h).

Mr Makabeni then provided advice, as requested on the previous day, as to which provisions related to valuable, and which to classified information. All provisions that the State Law Advisors had stated should be retained by the Agency applied to valuable information. All those to be taken over by the Panel would apply to classified information.

The provision of expert support and advice by the Agency was no longer required. The Panel would be taking over the functions in relation to review.

The State Law Advisors believed that clause 31 was no longer required. The Panel would be taking over the functions of the Agency, and any appeals on disputes would lie to Court.

The Chairperson noted that Members would not discuss the advice now, in view of the shortage of time. The meeting would resume on Monday 1 August, at 10:00.

Ms Smuts noted that the State Law Advisors had been given a very heavy workload, and proposed a vote of thanks to them. Mr Landers echoed this, and agreed that they had been given substantial work, but reminded them that he still wished to see a new Working Draft as soon as possible.

Dr Oriani-Ambrosini also wished to voice his thanks to the Chairperson for the way he had chaired this last week’s meetings.

The Chairperson, with the agreement of Members, asked the Parliamentary Law Advisors to indicate which of the definitions in the original Bill were no longer needed, and to liaise with the State Law Advisors to discuss what other definitions may need to be included, although it was not necessary to draft them.

The meeting was adjourned.


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