Protection of State Information Bill: discussion of flagged issues in Working Document 14

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

14 August 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The meeting began on the subject of clause 42 dealing with the hostile activity offence. The State Law Advisor presented a redrafting of the clause in Working Document 14 and the Committee discussed whether the changes accurately reflected its position on the matter.

The DA continued to express dissatisfaction with the inclusion of “prejudice to the Republic” in the offence and questioned the Bill’s constitutionality with such wording in it. They said this was a fundamental issue in the Bill. The IFP noted agreement on this and further raised concern that the unlawful disclosure offence (clause 47) and the hostile activity offence were duplicates, which the ACDP seconded.  The ACDP also suggested that the minimum sentences in clause 42 must be removed.

The ANC rejected the DA’s constitutionality argument but agreed with the ACDP about minimum sentences. To the IFP’s point, the ANC felt there was a distinction in severity between unlawful disclosure and hostile activity. The State Law Advisor was instructed to review the issues discussed and it was agreed to consult the Parliamentary Law Advisor for legal opinion as well.

The Committee moved to discuss the Bill’s preamble. The DA reintroduced an earlier proposal to reword the preamble, and the ANC said it needed time to look at the proposal and consider it. It was agreed to return to the issue at a later time.

The next topic of debate was the definition of national security. The ANC suggested the idea of removing the definition altogether and argued that the courts know what national security is. The ACDP was open to this idea, but the DA and IFP strongly opposed it, saying it was a critical part of the Bill. The DA raised fears of over-classification and once again said this could make the Bill unconstitutional, an argument the ANC rejected again. The IFP suggested adding “clear and present danger” to the definition to further narrow its scope.

The concept of information peddling was also discussed, but the Committee decided to flag the issue until consensus was reached later. The debate shifted to functions of the Classification Review Panel, specifically on the responsibility of the agency under chapter 10 of the Bill. The IFP said the Panel’s functions were not defined broadly enough. The issue was put forth to the State Law Advisor for redrafting. 

In the afternoon session, the ANC summarised the outstanding matters, which were to consider a new draft of the applications clause, deletion of clause 14(2) of the original Bill, a consideration of whether clause 18 should be deleted, as suggested by the DA but not agreed to by the ANC. It was necessary to delete the references to file blocks also in clause 19(6). The ANC suggested that the originally-numbered clause 28 should be deleted. The Committee would still receive suggestions on archival matters. The Chairperson added that the State Law Advisors would also have to clarify whether the references to “Minister” meant the Minister of State Security, or the relevant Minister of a department.

The opposition parties raised some issues on the originally numbered clause 15 (now clause 13 in the Working Draft). The IFP said that although this contained a hierarchy of classification, there were concerns that the wording, which used “serious” in one subclause, and “serious or irreparable” in another, did not make sufficient distinction. Other Members noted that the test should be “irreparable harm”, but did not support a new insertion of “grave harm”. The IFP suggested, and other Members agreed, that clause 13(4) was unnecessary because the new clause 15 contained the sole criteria for classification. The DA asked that the references to both demonstrable harm and reasonable expectations of harm being caused should be carried through all subclauses consistently. The DA also was concerned that although personal threat to individuals (who would be informers) and prejudice to international relations or severing of diplomatic relations were not linked, in terms, to national security. It would present these concerns and suggested solutions in a separate document.

The IFP had some concerns as to whether the categories of information that remained non-accessible under the PAIA and the categories of information classified under this Bill were linked, but other Members did not share these concerns, as the PAIA overrides were repeated in clause 20(3). Members would give more consideration to this.

The ANC thought that the newly numbered clause 20 probably now contained sufficient content, but a new heading was needed. Clause 20(1) should be reworded to state “If a request is made for access to information” and the definition of “request” should be replaced with a definition of “request for information”, and the definition as contained in the Promotion of Access to Information Act (PAIA) should be imported. The IFP added another proposal, that the wording of clause 21(2), which noted both a specific timeframe and the fact that motivation be given for decisions, should be imported into clause 20(6). The State Law Advisors were asked to look into whether the 90-day time period was in compliance with the Promotion of Administrative Justice Act, and whether clause 20(6) should be moved up to an earlier subclause. The State Law Advisors were also asked to look at whether “condone” or “anticipate” should be used in clause 20(5).

Members discussed the appeal mechanism. The DA asked whether the Classification Review Panel could contain a judge to decide cases on the merits, but the ANC believed that this would be incorrect, since that Panel was involved at an earlier stage. The DA also requested, and other Members agreed, that the provisions of section 82 of PAIA should be written into this Bill, despite certain practical considerations about the cost of appeals.

Meeting report

The Chairperson noted that this Bill has been thoroughly considered and even the flagged issues had been discussed in length, but they had a lack of consensus or disputes about wording. He raised the point that the Preamble had not been dealt with yet, noting Ms M Smuts’ (DA) proposal on the matter. He then asked the State Law Advisor to present Working Document 14.

Clause 42 Hostile Activity Offence
Ms Carin Booyse, State Law Advisor, presented the new clause 42 and highlighted changes that reflected the previous week’s discussions on the hostile activity offence.

The Chairperson confirmed with Mr D Maynier (DA) that his party’s proposal and the ANC’s amendments to it, particularly the insertion of “prejudice to the Republic,” had been added.

Mr Maynier said the counterproposal risked taking the Committee back to square one, and that the insertion made the clause potentially overbroad. He stated this raised a question of the Bill’s constitutionality, and argued that prejudice is implicit in the offence itself.

Dr M Oriani-Ambrosini (IFP) referred to his party’s document (IFP Comments on “Working Document 14”) that had been circulated to the Committee and said unlawful disclosure always prejudices the state, echoing Mr Maynier’s point. He said hostile activity and unlawful disclosure were conceptually one and the same. He also stated that the words “or suspected” should be taken out of clause 42.

Mr S Swart (ACDP) agreed with Dr Oriani-Ambrosini’s point about duplication. He also said minimum sentences in clause 42 were supposed to be removed.

Ms Smuts acknowledged that “intent” had disappeared from the clause’s wording and expressed agreement with both Mr Maynier’s and Dr Oriani-Ambrosini’s comments.

Mr N Fihla (ANC) made remarks about the nature of the discourse in the Committee, and said there was a lot of going backwards on issues that were previously resolved.

Mr L Landers (ANC) responded to Mr Maynier’s comments by saying he did not understand the constitutionality argument. He did, however, agree with Dr Oriani-Ambrosini about “or suspected”. He further stated that minimum sentences must be removed, agreeing with Mr Swart. Otherwise, he felt the rest of the clause was fine.

The Chairperson said the issue of “intent” was a matter of consensus and said “or suspected” should be deleted. He noted the Committee’s remaining points of contention and agreed with Mr Fihla’s comments about moving forward.

Ms Smuts responded to the Chairperson by stating that the issue of prejudice was fundamental to the Bill. She compared the unlawful disclosure offence with the use of prejudice in the hostile activity offence, particularly the sentencing stipulations. She asked for the Committee to consider an alternate formulation.

Mr Landers said that unlawful disclosure of information was an ordinary offence agreed upon much earlier, but that the hostile activity offence was far more serious, referencing the threat of non-state actors such as al-Qaeda.

Ms Smuts replied she was not disagreeing on the intention of the clause but rather the wording. She expressed fear that ‘prejudice’ would make the clause overly broad beyond what anyone intended.

Dr Oriani-Ambrosini said that how the clause would be read was critical. If there was a difference in severity between unlawful disclosure and hostile activity, then that needed to be addressed in the Bill. He further remarked that ‘prejudice’ is a broad concept.

Mr Fihla advised the Committee not to be frightened by remarks about the “fundamental” nature of this clause, and once again noted the lengthiness of debate on the issue.

Mr Landers stated that the opposition’s argument had no logic.

Mr Maynier referred to his party’s proposal regarding the benefiting of a non-state actor. He reiterated that ‘prejudice’ was a broad and unclear concept. He made reference to a Canadian law, which has a lengthy definition of prejudice and suggested that the Parliamentary Law Advisor should consider the issue and provide a legal opinion.

Dr Oriani-Ambrosini clarified his discontent with the clause 42, saying that the intent of the crime was not covered here. If the offence were to cover intention, this would have to be explicitly reflected in the clause’s language.

Mr Landers said the issue of prejudice in South African law has been addressed, saying the point about Canadian law is irrelevant. Prejudice is understood in South African jurisprudence, and it was not necessary to tell the courts what it is. He argued that maintaining, obtaining, and collecting classified information was an offence itself. He felt that the provision was fine as it was written.

The Chairperson commented on the concept of non-state actor and said it was inappropriate to mention examples of such by name, as there was no list of particularly hostile non-state actors to South Africa. He said the issue here was irrespective of who the specific actor was. He then discussed the unlawful disclosure of information offence in clause 47, asking what would be the implications if it were deleted.

Ms Smuts replied she would be thrilled to remove that disclosure offence from the Bill, and asked the Committee to consider both her party’s proposal and request legal opinion.

The Chairperson asked if she was suggesting that clause 47 was covered by clause 42.  

Ms Smuts suggested her proposal for rewording be adopted to avoid duplicating the offences.

Mr Landers argued that clause 47 could not be removed.

Dr Oriani-Ambrosini suggested leaving clause 47 in the Bill and to consider the linguistic issues later.

The Chairperson asked the State Law Advisor for an opinion on the matter and said he would ask the Parliamentary Law Advisor for an opinion as well.

Ms Carin Booyse said she thought the clause was fine as it was formulated.

Mr Swart raised concern that if clause 47 was a duplication of clause 42, there would be a possibility of being charged twice for the same offence.

Ms Booyse said she would review the concerns raised and return at a later time with a response for the Committee.

The Chairperson said the Parliamentary Law Advisor would make a presentation at the next meeting.
The Chairperson instructed the Committee to move on to consider the Bill’s preamble.

The Chairperson said this was a simple matter that needed consensus, and referred to a prior proposal from Ms Smuts.

Mr Fihla said the preamble had been agreed upon and criticised Ms Smuts for disrupting the process.

The Chairperson explained that previous discussion on the preamble was concerned with wording and there had not been consensus, hence it was flagged. However, he did not expect this to be a contentious matter.

Mr Landers requested to see Ms Smuts’ proposal, which had been circulated a long time ago.

Ms Smuts responded to Mr Fihla’s criticism, saying that it had been understood that the Committee would return to the beginning of the Bill at this point. She proceeded to explain her proposal, stating that it would adequately put the preamble in the proper constitutional and international context, noting the explicit importance of international law in the Constitution. She read the proposed changes, which made specific reference to both the Constitution and international law.

Mr Landers asked the staff to make copies of the proposal, which had not been redistributed at this meeting, and requested an opportunity to give it more consideration, noting that the preamble was usually dealt with at the very end of the legislative process.

The Chairperson adjourned the meeting for tea and to give time for the members to look at Ms Smuts’ proposal.

The meeting resumed on the topic of Ms Smuts’ proposal for the preamble.

Mr Landers said his party was still looking at the proposal, and while he noted approval of some of the changes, they would need more time to consider it without being rushed.

National Security Definition and Information Peddling
The Chairperson took note of Mr Landers’ comments and asked the Committee if there had been progress on the definition of national security.

Mr Maynier said that his party had submitted a proposal for the definition to the ANC, but was still waiting for a response. 

Dr Oriani-Ambrosini referred to page 5 of his party’s document, which discussed the concept of information peddling as in clause 40. He felt that this needed to be defined to give it more substance and thought doing so could bridge the gap between the ANC and DA.

Mr Landers said that information peddling should not be covered in the definitions section. Further, he added that his party was considering whether or not a definition of national security was necessary altogether. He argued that the courts know what national security is. He referenced the Johannesburg Principles, stating that national security meant very different things to different states, especially in third-world countries. He further referenced the Johannesburg Principles to articulate that national security is an elastic concept.

Dr Oriani-Ambrosini said that the idea of having no definition of national security had appeal, but it also presented threats. He suggested that courts have had difficulty defining national security, alluding to the United States. To that point, he remarked that tapes of the September 11, 2001 attacks were withheld for national security reasons. He added that terms within the definition would require defining by the courts, such as hostile foreign intervention and terrorist. He further said that national security should refer to a “clear and present threat,” and suggested inserting it into the definition.

Mr Maynier felt strongly that national security must be defined, reminding the Committee that the bill in question dealt with the classification of information, and it needed to be clear as the classifiers must know what can and cannot be classified. He argued that if national security was not defined, the concept would be contested, thus giving the classifiers wide discretion to classify, perhaps leading to over-classification. He said this would threaten the constitutionality of the Bill and suggested looking at definitions of national security in other jurisdictions, noting Canada, Australia, and New Zealand specifically. In response to Mr Landers, he said the Johannesburg Principles did in fact define national security. He proceeded to read his party’s proposed definition (which was not distributed at this meeting). The proposal was based on a reading of the Constitution and read as follows: “national security means the protection of the Republic from threats to the sovereignty or territorial integrity of the Republic, espionage, terrorism, sabotage, serious violence aimed at changing the constitutional order of the Republic, whether directed from or committed within the Republic, but does not include lawful political activity, advocacy, protest, or dissent.”

Mr Landers said he was still in the process of persuading his idea of removing the national security definition to the ANC. Responding to Mr Maynier, he said intelligence officers know what national security is and do not need a definition. To this point, he acknowledged his experience on the Joint Standing Committee on Intelligence. Further, he criticised the constitutionality argument, saying that this was something considered at every step in the process.

Mr Fihla reiterated that the definition of national security changes from country to country, providing examples of how the concept has evolved in the United States. He compared the Japanese attack on Pearl Harbor in 1941 to the terrorist attacks of September 11, 2011, noting how national security was redefined by each event.

Dr Oriani-Ambrosini said this definition was a fundamental aspect of the Bill, and once again proposed inserting “clear and present threat.” He also suggested adding “civil disobedience” to the national security definition, because threats could come from within the state itself.

Mr Maynier said he agreed with Mr Fihla about the elasticity of a national security definition, and argued that it was for precisely this reason that it needed to be defined for South Africa.

Mr Swart said he was thankful that the ANC was reconsidering the definition, and noted that there were guidelines in the Constitution on the subject. He felt that it would be preferable to have a definition of national security in the Bill, but he was open to the ANC’s proposal. He also suggested asking for the State Law Advisor’s opinion on the matter.

The Chairperson took the discussion back to information peddling, saying that it could be defined in clause 1 for the courts’ use.

Mr Landers noted a weekend article in the Mail & Guardian that referenced an information peddler, and used this example to prove that it was known what constituted an information peddler.

The Chairperson asked the Committee if information peddler should be removed or not.

Mr Maynier said he would welcome removing it from the definition of national security.

Ms Smuts said that for the time being it should be kept as it was written but flagged for a final verdict later.

Functions of the Classification Review Panel
Mr Landers raised the issue of agency in the Bill, and referred to Ms Smuts’ proposal on the matter. He also formally proposed removing “integral file block” from the definitions section. 

Dr Oriani-Ambrosini asked for clarification as to which of Ms Smuts’ proposals Mr Landers was referring.

Ms Smuts explained her proposal on the subject of the Minimum Information Security Standards (MISS) guidelines and valuable information.

The Chairperson said that the discussion here was focused on the responsibility of the agency under Chapter 10 and monitoring the implementation of the act.

Dr Oriani-Ambrosini said that the functions prescribed to the Classification Review Panel were not defined broadly enough and suggested considering a rewording.

Ms Smuts responded by saying that Dr Oriani-Ambrosini was taking the Committee back to an issue that had already been dealt with.

Mr Swart said that the inspector general would have the function of monitoring compliance with the Act. He stated that this subject has been debated previously and that the wording should be kept as narrow as possible.

The Chairperson instructed the State Law Advisor to present a newly drafted provision that captured the Committee’s agreement on the matter. He advised that it be a simple clause and to word it in such a way that it did not apply to defence forces.

Afternoon session 

On resumption of the meeting in the afternoon Mr Landers noted that the ANC had, during the extended break, looked carefully at the original Bill and Working Document 14. The DA and IFP had made proposals on the Preamble. There had been discussion on a new definition of “national security”, and there had been debate on clause 1(3). A draft of the applications clause, clause 3, was expected over the next few days. Clause 7 of the original Bill had been clarified, and he regarded it as resolved. Clause 14(2) of the original Bill had been discussed that morning, and it would be deleted. Clause 15 of the original Bill (now numbered as clause 13 on page 32 of Working Document 14) had sparked some debate on “security” and “interest”, but the believed that clause 13(1) was now correctly worded.

Ms M Smuts (DA) noted that there were still a few cases in that clause where “demonstrably” had to be consistently used, and another instance where “likelihood” and “reasonable expectation” did not appear. She would provide the references.

Dr M Oriani-Ambrosini (IFP) said that he had suggested that the word “grave” be used to qualify the harm in clause 13, but noted that clause 13(2)(a) still contained a reference to “serious”. He thought that because “serious” had not been used in clause 13(1), it was necessary to put something into (2), to distinguish the type of harm, but yet in clause 13(3) there was a reference to “serious or irreparable”. He said that there appeared to be two options. Firstly, clause 13(2) wording could be changed to “grave”, or alternatively, the “or” should be changed to “and”.

Dr Oriani-Ambrosini asked where the wording of subclause 13(4) had emanated. There was, firstly, a problem with language, because this referred to “guidelines”, whereas clauses 7 and 8 in fact referred to regulations that must be prescribed. Guidelines, policies and directives were different from this. Secondly, he thought that mentioning the “guidelines” here seemed in fact add additional criteria to clause 13, which was supposed to list everything to be taken into consideration. In order to correct this, if the subclause were to remain, it would be necessary to say “Subject to the Act” at the beginning of this clause.

Mr S Swart (ACDP) asked about the process of the meeting, as he too wanted to make some points on this clause, but asked he should do so now, or if Mr Landers should finish making his presentation.

The Chairperson noted that Mr Landers was merely drawing attention to some of the matters flagged, and some that were agreed upon. He suggested that Mr Landers should have a chance to complete what he wanted to say. He did not want Members to jump into commenting on clause 13 now, but would like Mr Landers to finish his summary of what had been agreed upon and what remained for discussion.

Mr Landers said he had noted the points raised by Dr Oriani-Ambrosini. The DA had suggested that clause 18 of the original Bill should be deleted, but the ANC did not agree with this. The original Bill’s version of clause 19(6) contained a reference to file blocks and integral files, and that would, for consistency, have to be removed, following discussions earlier in the morning. The Committee had dealt with clause 21 and he reminded Members that the Committee had gone through an exercise trying to join clauses 17 and 21. Clause 22 of the original Bill was now reflected as clause 19, on page 43 of the Working Document.

Mr Landers then wanted to comment specifically on the newly numbered clause 20, on page 46. In the light of what was in clause 28 of the original Bill, the ANC believed that new clause contained sufficient content. However, he suggested that perhaps it would be useful to give the clause a new heading, and asked the State Law Advisors to suggest something appropriate. Then clause 20(1) should be amended to read “If a request is made for access to information…”. The definition of “request” as it currently stood in the definitions section was not sufficient, and the ANC suggested that this should be redefined as a “request for information”. Then the definition that appeared in the Promotion of Access to Information Act (PAIA), of “request for access” could be inserted into this Bill, to assist in the reading of the newly changed clause 20(1).

Mr Landers confirmed, in answer to an inaudible question from Ms Smuts, that appeals would still lie to Court, but pointed out that clause 25 of the original Bill had been changed and appeals would lie not to a judge but to the Minister. However, he would be asking the Committee also to look at the discrepancy in time limits, since an appeal had to be lodged within 30 days, but the Minister was given 90 days to respond.

The Chairperson reminded Members that this would be the “relevant” Minister, not the Minister of State Security.

Mr Landers agreed, and added that there were a few places in the Bill where the reference to the “Minister” may need to be amplified. He asked if the State Law Advisors could clarify this in the next working document.

Ms Smuts raised some inaudible concerns about the appeals procedure.

The Chairperson noted that he did not wish to take comments on this at the moment.

Mr Landers then noted that the originally numbered clause 28 would be deleted, as he had mentioned a little earlier.

Mr Landers noted that Dr Harris would revert to the Committee in respect of archival matters contained in Chapter 8. He said that clause 30, dealing with responsibilities of the State Security Agency (the Agency) had been discussed that morning. In respect of the originally-numbered clause 46, which now appeared as clause 55 on page 77 of the Working Document, there were some concerns that had arisen from previous cases, although the ANC was aware that this Bill should not attempt to micro-manage the courts.

The Chairperson confirmed that this summary by Mr Landers seemed to correctly reflect the outstanding matters.

Clause 13 of Working Draft (clause 15 in original Bill)
Mr Swart thought it may be useful to return to clause 15 of the original Bill, now renumbered as clause 13 on page 32 of the Working Draft.

Mr Swart said that Dr Oriani-Ambrosini had earlier noted that there was a hierarchy of classification, from Top Secret down to Confidential, set out in the subclauses. Dr Oriani-Ambrosini had made the point that whilst the hierarchy attempted to distinguish between the matters, the use of “serious” in one of the subclauses and then “serious or irreparable” in fact meant that “serious” harm could be used as the same criteria for both. The test was actually “irreparable harm” at Top Secret level, and if the word “serious” was to be used for this, then it must be coupled with “and”. He was not sure whether there was a need to insert “grave” at any of the levels.

Mr Landers agreed with Mr Swart.

Mr Landers also referred Members to Dr Oriani-Ambrosini’s comments on clause 13(4). He agreed that the new clause 15(1) on page 37 was supposed to set out all the conditions, and that the decision to classify should be based solely on the conditions set out here. In that case, clause 13(4) was not needed and could be deleted.

Later in the meeting, the Chairperson reminded Members that they had agreed upon the thresholds in this clause, and he asked that any changes should be fully motivated. He, personally, did not agree with the contention that “serious or irreparable “ and “serious “ were the same.

Dr Oriani-Ambrosini clarified that he had suggested either that “grave” be used instead of “serious” in subclause (2) and that subclause (3) should then be worded as “serious and irreparable”. If the wording remained as it was, then there would not be sufficient distinction made between the categories.

Ms Smuts thought that this was a valid point.

Ms Smuts added that there were further problems with the wording. In most of the clauses, there was a reference to the likelihood of damage or reasonable expectations of harm. However, the second –last line of clause 13(1) did not contain such references, and she suggested that both the likely and reasonable expectations should be carried through to here. Then, on the second line of clause 13(3)(a) she suggested that the word “demonstrably” must be inserted after the phrase “reasonably be expected to.. “.

Ms Smuts then raised another concern. The issues flagged had also noted that the Congress of South African Trade Unions (Cosatu) had raised the question of personal information. There were a couple of instances in which threat to personal harm or safety were carried across into this Bill. However, when there was a reference to physical security, this was not actually linked to national security, so that it was not clear how the endangering of the lives of individuals would be linked to threats to national security, and this raised the question of whether that category had a place in the Bill. It was necessary, in her view, to establish some link, to avoid the clause becoming over-broad. Similar concerns also existed in relation to the notion of prejudicing international relations of the Republic, in clauses 13(1) and 13(2). Clause 13(1) mentioned prejudice to international relations, and clause 13(2) to the severing of diplomatic relations, which was likely to be closer to national security, but again, a more direct link should be drawn.

Mr Landers said that the personal security references related to those who were sources of information.

Ms Smuts pondered if this should not then be specifically stated.

The Chairperson asked the DA to present its concerns, and possible solutions, in a separate document, for further consideration by Members.

Clause 28 / clause 20
Dr Oriani-Ambrosini wished to discuss clause 28. The categories of information that could not be accessed under the PAIA were quite extensive, but the categories of matters that were to be classified under the Bill was much smaller. He said that it was necessary to consider how to classify a document that would not be accessible under PAIA. Anything that could not be accessed under PAIA could not become the subject of a request for reclassification because the request was brought under PAIA. That brought the Committee back to the question whether the categories excluded under PAIA were broader or narrower than categories of what was classified. The Committee had deliberately not looked at this question earlier, because they rightly said that it would be necessary firstly to decide what would be classified, and how the information could be accessed. It was now clear that access would be done through PAIA. However, the corollary to that was that certain aspects might need to be disclosed although they would be kept confidential under PAIA. His main concern was that there was not a direct link between categories of information that would not be disclosed under PAIA, and categories of information that would not be disclosed under the Bill. The answer that was suggested was that PAIA would prevail if mandatory aspects were to be disclosed. However, there was no mechanism in the Bill for this. He had tried to address this by making suggestions to amend clause 28(2) – now renumbered as clause 36(2) of the Working Document. If this clause was to fall away, then perhaps his suggested amendment may need to be carried into the original clause 20.

Ms Smuts pointed out that section 46 of PAIA was already written into this working document.

Mr Landers said that if a record was classified, it was possible to request that it be declassified. There would be an automatic review and declassification procedure once the request had highlighted that the information sought was classified.

Dr Oriani-Ambrosini said that unless the PAIA criteria were exported into this Bill, the reviewer would look only at what was in the Bill.

Ms Smuts said that this highlighted that it was necessary to read through the whole Bill to find where the parts fitted together.

Mr Landers thought that Dr Oriani-Ambrosini might be misunderstanding something.

Dr Oriani-Ambrosini said that if clause 28 was deleted, then the request would be done in terms of clause 22 of this Bill. The rights in PAIA were set out in section 46 of that Act. A classifying authority could not “reach into” PAIA in order to declassify. He repeated that there was a mismatch between the two pieces of legislation because the reasons for non-accessibility under PAIA and the reasons for non-accessibility under this Bill were not the same.

The Chairperson thought that perhaps the new clause 20(1) should reflect that although the request for information must be made in terms of PAIA, that request for information must be dealt with in terms of this Bill. That would then give rise to the review, and the right of appeal. Dr Oriani-Ambrosini’s points about the mandatory or discretionary disclosure were not entirely relevant. If the information was classified, the Bill would come into operation. If not, then the request would be done in terms of PAIA.

Dr Oriani-Ambrosini agreed, but pointed out that section 46 of PAIA was worded in a certain way.

Ms Smuts again pointed out that the section 46 override was effectively repeated in terms in clause 20(3), rather than a reference simply being made to it.

Mr Swart agreed that the request for information would be done in terms of PAIA. However, if that request showed that the information requested was classified information, then this Bill would kick in, with the override now contained in clause 20(3).

Mr Landers thought that this wording now solved the problem that had been cited in PAIA, that officials would try to find reasons not to disclose information.

Mr Swart said that for the purposes of this process, the Bill was covering that loophole in PAIA.

Ms Smuts said that she thought this clause had moved in the right direction but wanted to reserve the DA position, and give more thought to the amendments.

Clause 20
Dr Oriani-Ambrosini also wanted to add another proposal for clause 20. Clause 20(6) set out that the Minister must, within a reasonable time, conduct a review. Clause 21(2) also related to deadlines but was worded more strongly, since it not only set out a specific timeframe, but also required that the head of the organ of state must motivate the decision, in terms of the Promotion of Administrative Justice Act (PAJA). He thought that what was contained in clause 21(2) should be imported also into clause 20(6), or into a new subclause (7).

Mr Swart asked if Dr Oriani-Ambrosini was happy with the 90-day period.

Dr Oriani-Ambrosini said that he was not making any particular comment on that, although he generally preferred to have shorter time frames.

Mr Swart pointed out that clause 21(2) related to an application for review, and not an application for access.

Dr Oriani-Ambrosini said that the word “request” was now in any event to be redefined as a “request for access”. That would then spark off a request for review.

Mr Swart still thought that the clauses dealt with two different matters. Clause 20 was dealing with a request for access, whereas clause 21 was dealing with a request for review of the classification, which might mean not that access was given, but the classification was changed from one category to another.

Dr Oriani-Ambrosini said that then it was even more important that the principles of clause 21(2) should apply to clause 20. He still thought that the specific time frames imposed on the Minister should be incorporated, as well as the fact that there had to be a motivation in line with PAJA.

The Chairperson said that the words “within a reasonable time” had been suggested by Dr Oriani-Ambrosini himself, for clause 20(6).

Dr Oriani-Ambrosini said that under clause 21(2), the head of the organ of state would have to furnish his decision within 90 days, and would have to motivate it. Mr Swart had read this clause as applying to a review that did not concern a request for access to information. He agreed but still thought that both the time frames and requirement to motivate should be included here.

The Chairperson noted that the right to fair administrative action was set out in the Constitution, and PAJA was then passed to give effect to that right. It was clear that reasons would have to be given and he wondered if it was really necessary to mention that in the Bill.

Dr Oriani-Ambrosini said that the difficulty was that if it was mentioned in one clause, but not in the other, the rules of interpretation might imply that there were specific reasons why motivation would not have to be provided under clause 20. 

Ms Smuts requested that Members be given the opportunity to consider these arguments.

Mr Swart asked the State Law Advisors whether clause 20(6) should appear in its current place. Subclauses (1) to (4) and then (6) referred to what “must” be done, whereas subclause (5) referred to instances that “may” follow.

Dr Oriani-Ambrosini then raised a point on clause 20(5), set out on page 46 of the Working Document. He thought that the word “condone” was not correct, because a party could approach the court before the deadline had expired. He suggested that the phrase “anticipate the time period” was more appropriate.

The Chairperson asked the State Law Advisors to consider this point.

Appeal mechanisms
Ms Smuts said that the DA wished to raise the question of appeals. The original clause 28 had provided that the head of the organ of state may decide to declassify, but where this did not happen, then the matter would need to proceed to an appeal. This Bill only referred to “an appeal authority”, whereas section 82 of PAIA provided for an appeal “to a court authority”. She believed that it was necessary to ensure that the right of appeal to a court should be specifically provided for in this Bill. When the Court sat in judgment over PAIA applications, it was not just acting as a court of review, but also decided upon the merits of the case (as set out in the Nugent judgment in the Zimbabwean case. The DA had suggested that a retired judge should be appointed to handle appeals, but an opinion submitted to the Committee by Adv van Rooyen had suggested that it would be preferable to have a court consider the appeals, otherwise the single judge would be acting as arbitrator. She asked if it was possible to consider having, in the Classification and Review Panel, a judge who would consider appeals on the merits. It was already very burdensome, under PAIA, to expect a requestor of information to go to court, especially where there were simply mute refusals to provide the information, and she would not like to replicate those difficulties in this Bill. Whether or not this was done, she would, however, suggest that wording similar to section 82 of PAIA should be written into this Bill.

Mr Landers said that it would not be appropriate – and may fall foul of constitutionality – for the Classification Review Panel to consider the reviews, and then, later on, conduct appeals. However, he agreed that it would be possible to look at replicating the PAIA provisions in this Bill, as there did not seem to be any fault with that suggestion. He agreed that there was clearly a problem where a person without the means to do so was obliged to approach the Court, but he did not think that there was any other way to resolve this other than to follow the same route as PAIA.

Ms Smuts said that the DA may wish to approach the Committee in that specific regard again.

The Chairperson noted a request from Members to adjourn at this time. He asked the State Law Advisors to effect the amendments agreed upon in the Working Document. Issues that were to be raised for discussion, should be reflected in a separate document. He also asked the State Law Advisors now to look at the new questions, which were the insertion of a new heading for the new clause 20, and amendment of the wording of clause 20(1). After considering Dr Oriani-Ambrosini’s requests on clauses 20 and 21, new proposals should be provided, in a separate document, together with advice on whether the time periods suggested were consistent with the provisions of the Promotion of Administrative Justice Act (PAJA).

The meeting was adjourned, to 15:00 on Wednesday 17 August.


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