Protection of State Information Bill: Working Draft 16

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

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

The State Law Advisors tabled a new Working Document 16, which contained the changes agreed to by the Committee, and a separate document containing Members’ proposals on various clauses that still needed to be discussed. The definition for “information peddling” had been inserted into the Working Document, as well as changes to clause 20(1).

The Committee Proposals document was firstly checked by Members, to ensure that the proposals were correctly captured. The ANC asked that its proposal on national security should be amended to read “National security includes…” The DA noted, in respect of two proposals, that the wording around sanctions should be reflected as a period of imprisonment, or a fine, but not both. The IFP asked that several of its proposals in respect of clauses not yet settled should be moved across from the IFP Working Document submitted some months ago, into this document, to ensure that all options were before Members. Members then proceeded to debate the issues, or note where they wished to have them flagged for discussion at a later stage. The ANC indicated that it still wished the definition of “national security” to stand over. In relation to clause 1(3), the parties were prepared to compromise on use of the first wording set out, which did not mention “despite section 5 of Promotion of Access to Information Act (PAIA)” but did stress that the courts must prefer any reasonable interpretation that avoided a conflict to any alternative interpretation. Members discussed clause 13 and the opinion submitted by Adv van Rooyen but noted that there was an error in Adv van Rooyen’s formulation of the clause, and the DA undertook to clarify with Adv van Rooyen whether he had meant to exclude certain wording, as the parties clearly differed in their interpretation of what he had suggested. The DA believed that he had intended to delete references to “security” as they were not linked to “national security”, whereas the ANC thought that these had been left in whilst the notion of prejudice to international relations only had been excluded. This issue therefore remained flagged for further debate.

The DA had submitted a proposal to amend clause 16 (originally clause 18) by moving the content of the portion agreed to by the parties that would address protection of whistleblowers to a new subclause (c) and then inserting a new subclause (b) which set out the circumstances in which a person would not be obliged to surrender possession of a classified document to the South Africa Police Services (SAPS) or State Security Agency. The DA explained that these reflected the instances in which a document could not be classified. The ACDP said that although in principle it supported this position, discussion on this, as well as the later proposals in similar vein made for clause 48 (originally clause 38) hinged upon whether the public interest defence, in a broad or restricted formulation, would be effected. The IFP still believed that the clause should be deleted, but as a compromise had suggested that the words “and knowing that such information is classified” should be inserted. The ANC maintained that the clause was quite simple and placed an obligation on a person coming into possession of classified information to return it through the appropriate channels, whereafter that person could make application to have the information released through a review and declassification procedure. After discussion, the ANC noted that one possible way to allay fears about whether the matter would end there, if the document disclosed malfeasance, was to insert a provision that the SAPS would be obliged to investigate issues raised by the person handing the information in. The IFP thought that this clause hinged upon the public domain and erroneous classification principles. The DA asked if the ANC still held its position that no criminal liability should attach to the possession prior to the information being handed in. Members then moved to a discussion of clause 48, noting the DA’s proposals for insertion of a new subclause (b), which set out similar provisions that a person could not be prosecuted for possession if in possession of classified documents, in exceptional circumstances as set out. The IFP proposed another formulation for an exculpatory defence, saying that a document classified for a legitimate purpose might also hide corruption. The ANC noted that his proposal might result in a trial within a trial at prosecution stage, and pointed out that the Panel would be able to investigate these matters. This was flagged for further discussion, and it was noted that the different proposals on the levels of a public interest defence submitted at a previous meeting should also be taken into account, as also the wording of clause 47. The DA then raised another issue, asking the State Law Advisors to look into the possible implications of Judge Moseneke’s judgment in the Independent Newspapers case on section 80(2) of PAIA.

Meeting report

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, noted that the State Law Advisors (SLAs) had prepared a new Working Document 16 as well as another document, entitled Committee Proposals on Working Document 16.

Ms Booyse firstly drew Members’ attention to the Working Draft, at page 11, where the definition for “information peddling” was inserted. Further insertions, following requests by Members, appeared on page 17, and in clause 20, on page 47, where the heading had been inserted and the words “access to” were inserted into subclause 20(1).

She noted, in regard to the Committee Proposals Document, that “national security” had been amended and defined, with further insertions. On page 7, the SLAs had been asked to insert the proposal on the return of documents. The next insertion was on page 11, where the prior wording of clause 38, as contained in the Working Document, was set out, with proposals following that. On page 12, there was an insertion into clause 39.

The Chairperson asked Members firstly to comment whether the proposals were correctly captured.

Mr L Landers (ANC) noted, in respect of the “national security” definition, that this should commence with the wording “national security includes…” and not “national security means..”.

Mr D Maynier (DA) confirmed that his proposal on this had been properly captured in this document.

Conflict of laws
The Chairperson asked, in relation to the conflict of laws, whether Members wanted to discuss this later.

Ms M Smuts (DA) asked whether Members would agree that a possible further option would be the deletion of clause 1(3) of the original Bill.

The Chairperson noted that there was nothing further to discuss, at the moment on pages 3 to 7.

Mr Landers noted that his proposal on clause 16 was correctly captured.

Ms Smuts reminded Members that the ANC had earlier suggested, in relation to the offence of possession, that it was possible that no criminalisation would attach if a person had prior possession of information, and had then handed it in and taken the next steps, as set out in the Bill, to gain access. If this position was still held, this would be the correct place to insert it.

Mr Landers said that he needed to think further about this and ensure that it was not used a loophole to avoid prosecution.

Ms Smuts said that this had been a good proposal.

The Chairperson noted that there was nothing further to discuss on page 9 or 10. However, on page 11 there was an additional proposal, suggested by the DA.

Mr Maynier said that his proposal was correctly captured by the State Law Advisors, but he may have made an error in drafting. This offence should list the fine as optional to the period of imprisonment, and he asked the SLAs to insert this, so that the conviction would render a person liable to imprisonment “not exceeding five years, or a fine”.

The Chairperson referred Members to page 13, and said that the proposal for the end of clause 39 appeared to be correctly captured. He also noted that this referred to a fine, as well as a period of imprisonment not exceeding five years, or to both such fine and imprisonment. Earlier on, Mr Maynier had asked for a fine as an alternative, and he questioned whether that should appear here.

Ms Smuts and Mr Maynier noted that this clause should similarly reflect a sanction of either imprisonment, or a fine, not both.

The Chairperson asked Members to note this change.

Mr S Swart (ACDP) asked where the proposal emanated, and Mr Maynier indicated that it had been his proposal. He also asked whose proposal was reflected on page 8.

Mr Landers said that it did not really matter and Members simply needed to check if the proposals were correctly captured.

Dr M Oriani-Ambrosini (IFP) noted that none of the proposals contained in the IFP discussion document were reported in this document. He asked why this was so.

The Chairperson said that the proposals from the IFP in respect of some of the matters were captured.

Mr Landers noted that on page 11, there were two proposals set out dealing with disclosure of classified information. On page 13 there was additional wording on the same topic. He asked if the same issues and same clauses were being dealt with.

Ms Booyse noted that what appeared on page 11 was the wording of clause 47, as it currently appeared in the Working Document, whereas what was set out on page 13 was an alternative proposal for that clause, with the words “other than as contemplated in section 42” included.

Ms Smuts said that on the previous day, she was not clear about the import of this.

Mr Swart explained that this related to a person who could be prosecuted either for possession, or for disclosure in circumstances where the information could be used for purposes of a hostile activity. The reason for the insertion was to ensure that the person was prosecuted under the correct clause, depending upon the intention.

Dr Oriani-Ambrosini asked that when the State Law Advisors updated the Working Document, whatever was set out in the IFP document should be included, other than those matters that had already been settled by Members.

The Chairperson asked all Members to confirm that they had the IFP document, and, on receiving confirmation to this effect, suggested that it would be preferable if, when discussing the clauses, Dr Oriani-Ambrosini should simply draw the attention of Members to the proposals.

Dr Oriani-Ambrosini thought that all these proposals could be put in one document.

The Chairperson said that there still appeared to be some problems with the numbering of clauses.

Mr Swart suggested, as a possible compromise, that Members’ proposals on particular clauses should be given to the State Law Advisors if the parties wished those proposals to be considered as alternatives, for inclusion in a combined Committee Proposals document. At the moment, the IFP document contained a substantial amount of information, but it would be more useful to look at the alternative proposals, in a more directed form, during the discussions.

The Chairperson noted that if Dr Oriani-Ambrosini wanted specific wording to be put in as a proposal, he should ask the SLAs to incorporate it into a document. He reiterated that some of the numbering in the IFP document did not follow the numbering in the Bill.

Dr Oriani-Ambrosini said that numbers noted in black were the old clause numbers and those in red were the new clause numbers, but that in the photocopying process, some had come out grey. He noted the Chairperson’s suggestion.

The Chairperson, having clarified that the document correctly reflected the wording of proposals put forward, then asked Members to return to page 1 of the Committee Proposal document and discuss the issues in more depth, where possible, or indicate those that still needed to be flagged.

National security definition
The Chairperson asked if Members were yet ready to come to agreement on the issue of national security.

Mr M Sonto (ANC) said that on the previous day it had been noted that if there was a definition, it would be worded as “including” rather than “limited to” certain matters.

Dr Oriani-Ambrosini asked if the ANC was agreed on whether there should be a definition for “national security”.

The Chairperson said that the ANC had not yet concluded its own deliberations, and this issue should stand over to the following day.

Clause 1(3): Interpretation
The Chairperson said that Members should study section 5 of the Promotion of Access to Information Act (PAIA), in relation to the possible conflict or interface between that Act and the Bill. Some alternative proposals were set out, and the question was whether Members wanted this Bill to be stated as having precedence, or whether it should be left to the court to reach a reasonable interpretation.

Mr Landers thought that the first two options set out on page 3 were preferable to the third, but the ANC would be happiest with the second set of wording, under the heading “Proposal”, in the middle of page 3.

The Chairperson reminded Mr Landers that another proposal was to delete this clause altogether.

Mr Swart said that when Members had discussed this, they had done so on the principle that the Bill should not take anything away from PAIA. The “Proposal” in the middle of page 3 started with the words “Despite section 5..”, which was effectively taking matters away from PAIA. However, the first set of wording, at the top of the page, did not state this, although it did include words to the effect that a court must prefer any reasonable interpretation that avoided a conflict to any alternative interpretation. If this clause was simply deleted, there would still be the possibility that one piece of legislation would need to be pitted against another.

Mr Landers said that the ANC would also have no particular objection to using the first wording set out on page 3, and was prepared to compromise on this.

Dr Oriani Ambrosini agreed that the second and third options did raise the possibility of removing something from PAIA, although he also commented that the first option, at the top of the page, was fairly obvious, and that no judge needed to be told how to interpret the laws. Although the first option did not achieve much, it was preferable to the others.

Ms Smuts noted that the DA’s preferred position was that this clause be deleted, but, in an attempt to reach a compromise, was prepared to accept the first option at the top of the page.

All parties agreed, as a compromise, to use the wording of the original Bill, as set out at the top of clause 3.

Clause 13 : Page 8 of Committee Proposal document
Mr Landers said that he had considered the views of Adv van Rooyen, circulated to Members on a previous occasions, and agreed that the words “or could reasonably be expected to prejudice the Republic in its international relations” could be removed.

Ms Smuts asked if Mr Landers was speaking about the original longer document, or the one page document distributed on the previous day. She did not have quite the same interpretation. Adv van Rooyen, according to her understanding, had later suggested that all the wording referring to international relations and personal information should be removed. Ms Smuts noted his comment that keeping these words in the Bill could cause problems in constitutionality.

Mr Landers read out what was in the document, noting that the clause would stop after the words “national security of the Republic”.

The Chairperson noted that Adv van Rooyen’s argument was that “security” covered the personal angle.

Mr Landers apologised, and agreed that the reference to “security” would be removed. The reasoning was that this referred to the security of the individual person.

Ms Smuts differed in her interpretation of the reasoning. She thought that Adv van Rooyen was saying that it was not possible to deal with personal safety without establishing a link to national security, as had been done in clause 15(3) – which made reference to “ a source” in terms, putting this firmly in the context of national security. Adv van Rooyen had argued that a mere reference to “security” on its own could be referring to the security of any individual.

Mr Landers noted that the second document circulated had emanated not from Adv van Rooyen but from the DA, and sought to outline its interpretation of the van Rooyen opinion.

Ms Smuts said that this was done because the Chairperson had asked for extra motivation and reasoning.

The Chairperson said that the opinion by Adv van Rooyen focused on the broad nature of previously-numbered clause 15 (now clause 13). This opinion relied on various decisions, and Adv van Rooyen had put forward a proposal based on his opinion. Both the words “security” and “national security of the Republic” had been left in, but others were deleted. He thought that Members should either agree with the opinion and the proposal, or not, but could not attempt to interpret and add to it. He also cautioned Members to try to avoid moving away from the wording that they had originally agreed upon.

Mr Swart noted that the opinion was in fact incorrect, because it referred to the fact that this clause “presently reads” but then quoted something that was in fact not taken from the Working Document. He thought that this could probably be clarified simply by making a phone call and asking whether this was a mistake, and what exactly had been intended.

Dr Oriani-Ambrosini was of the view that, irrespective of any opinions, the reasoning behind eliminating the word “security” was sound because nobody knew what it was, and pointed out that in the modern world it had a number of possible interpretations.

Mr Landers pointed out that “security” had been defined.

The Chairperson summarised that Mr Landers was proposing that the opinion of Adv van Rooyen be accepted, as set out in the document.

Mr Swart said that the document contained patent errors and he would not be prepared to base his decision on this opinion until it was clarified.

The Chairperson thought that Adv van Rooyen had probably said exactly what he meant, and if he had thought that “security” posed a problem, he would surely have said so.

Ms Smuts offered to contact Adv van Rooyen and clear up the uncertainty.

Mr B Fihla (ANC) agreed that it should be simple to clarify the matter.

Ms Smuts reiterated that she would be happy to contact Adv van Rooyen and report back.

Dr Oriani-Ambrosini said that the real issue was what harm would be done by keeping in “security”. If it was anchored on the notion of hostile acts (and here he mentioned that in fact the reference should, for consistency, be “hostile activities”) and was left in its current form, it seemed to be sufficiently restrictive.

The Chairperson noted that the matter would remain flagged for further debate.

Proposal on clause 16 (originally clause 18): Possession and return of classified record
The Chairperson summarised that this clause dealt with a person who was in possession of a classified record, knowing that it was unlawfully communicated. The clause obliged the person to return the document to the South African Police Service (SAPS) or the State Security Agency (the Agency). He said that the opposition parties were not in agreement with the clause, and the DA and IFP had originally proposed that it should be deleted. However, an amendment had now been proposed by the DA, as set out on page 8. This essentially added a new subclause (b)(i) to (vi).

Mr Landers commented that the effect of this new subclause seemed to negate subclause (a) because it was suggesting that in certain circumstances, the person would in fact not be obliged to hand in the document.

Mr Swart confirmed that the ACDP was also in favour of the DA’s amended version, as set out on page 8. The ACDP’s first preference would be to have clause 16 deleted. However, if it was not successful in arguing this, then it would support the insertion of (b). He noted that although the Committee had not finalised its discussions on the public interest defence, that was linked to this clause. If his own proposal on the narrow public interest defence was to be accepted, then it would impact on this proposal, because it was effectively setting out a narrow public interest defence.

Dr Oriani-Ambrosini said that the clause referred to a “record” but subclause (b) seemed to relate to “information”. He was ideologically opposed to the idea that when the state had lost a document, a citizen should be placed under an obligation to return that, under pain of sanction. The IFP agreed that ideally this clause should be deleted altogether. However, if this was not accepted, then the IFP had proposed that the words “and knowing that such information is classified” should be inserted into (a). He was also in favour of the idea of adding the content of subclause (b), as proposed by the DA, but thought that it was wrongly placed, because this related to the possibility of using the information, and not to the physical record itself.

Mr Landers noted the ANC’s view that the clause should be kept as originally set out in the Bill. It was fundamental to the protection of the state. He reminded Dr Oriani-Ambrosini, that “record” was defined, and this definition did go beyond what was written on paper, so it was clear that “record” in fact included information.

Ms H Mgabadeli (ANC) commented that sometimes Members had difficulties with the language they were using.

Mr Landers continued that the DA was suggesting qualifications, but in fact the content of clause 16 was quite simple. A person coming into possession of a classified document, however this had occurred, should inform the relevant authorities and hand over that document. The effect of adding (b) was that in certain circumstances the person would not in fact have to return the document. It was a given that a person finding this information would almost certainly have read it. The person could, after handing it in, then request either declassification or access. He asked the opposition Members to tell him what their objection was to the clause.

Mr Maynier said that it was important to bear in mind that the proposed amendments arose out of discussions on the public interest. The DA had, as a first option, wanted this clause deleted. By way of compromise, however, if had now suggested the amendments and insertion of (b). He said it was necessary also to look at clause 39, which criminalised possession of a document. The DA was of the view that in a democratic state, a person should not be convicted of having possession of a document where there were exceptional circumstances set out in the new subclause (b). The exceptions were drawn from (originally numbered) clause 17. He noted that, for instance, a document that attempted to hide an unlawful act could not properly be classified, because that unlawful act must clearly be disclosed. If that principle was accepted, then it made no sense to criminalise the possession of that document.

Ms M Mentor (ANC) also believed that the clause should stand as originally worded. She wanted to test the issue of “knowledge”, and asked if this would be covered in regulations.

The Chairperson said that there were many complex laws, and it was the job of the relevant department, once the law was passed, to ensure that it communicated the content of any legislation properly, such as was done with PAIA. He agreed that laws were often not written for the man in the street.

Ms A van Wyk (ANC) commented on Dr Oriani-Ambrosini’s objection to the ordinary citizen being obliged to compensate for the state’s loss of a document, saying that this was a perception that the Committee should avoid. The wording referred to “unlawfully communicated” which was not implying negligence in mislaying a document. The obligation to hand in a document was in fact simply an example of good citizenship. Now that the Bill had been substantially altered, this was not an unfair clause, although it may have been unfair as originally framed, because the person handing in the information could then apply for the information to be declassified.

Dr Oriani-Ambrosini reiterated that he had proposed the words “knowing that such information is classified” should be inserted. Whilst it could be argued that this was already included in knowing that the record was unlawfully communicated, this did not always apply. He asked Mr Landers to think about that insertion.

Mr Fihla said that if the person coming into possession of the classified document then gave it to a second person, the latter may also be curious about its content. The criminalisation would apply from the point where the first person failed to hand the record in.

Mr Landers agreed that the classifier would of course be guilty of an offence if s/he had classified something that was attempting to cover up malfeasance. However, this clause was not dealing with disclosure, but only with the duties on a person coming into possession of a document. He wanted this to be made very clear to those in the meeting. Disclosure was dealt with elsewhere. It was human nature to assume that the person would read that document, and that person could then take steps for a review, to have it declassified. Mr Maynier’s suggestions had been disingenuous.

Mr Maynier asked Mr Landers to describe what would happen in the scenario where a journalist or Member of Parliament received something that was classified, and, on opening it, found evidence of an unlawful act, such as corruption.

The Chairperson responded that, if the Bill was in operation, the journalist or MP would have to hand the document over for investigation at the proper channels.

Ms Smuts suggested that this might be shutting down openness.

Mr Maynier said that Mr Landers should accept that, in the current context in South Africa, handing the document over to the police could in itself amount to a cover-up because he would question whether there was really a realistic prospect that the corruption revealed in that document would e investigated. The person handing the document in would also have to apply for access through PAIA, and he questioned if Mr Landers was suggesting that although the document had been handed over, there could not be disclosure. Mr Maynier suggested that there was an inconsistency.

Mr Swart said that for most crimes, actual intent must be proven. In this case a person failing to hand over a document was being penalised for an omission rather than a positive act. The suggestions in the proposed subclause (b) set out a broad public interest defence. When the various arguments and options for the public interest defence were presented at a previous meeting, this was probably the broadest suggestion. He reiterated that this clause could not be finalised in isolation, and that the final form of the clause would be dependent on whether a form of public interest defence would be accommodated. The lowest level of such a defence would be one similar to what was set out in PAIA, and he would have no problem with a narrowly-crafted clause in respect of possession and disclosure. He appreciated the implications of a top secret document remaining in someone’s possession, but still wanted to argue that in a case where there had been a contravention of the law, or there was an imminent environmental or safety danger, there was scope for a narrow public interest defence. He suggested that further discussion on that principle could assist the Committee in moving forward on this clause.

Dr Oriani-Ambrosini begged to differ from Mr Swart, saying that in his view this was not a public interest issue, but one linked to the defence of erroneous classification, and the public domain defence, which were conceptually different. He said that his task was hindered by the fact that his own proposals were not included in this Committee Proposal document. He had understood that Mr Landers had agreed, in principle, that something erroneously classified could not form the basis for prosecution. If that was written into the Bill, then anyone charged with an offence connected with a classified document would be entitled to raise, as a defence, the improper classification of the document. That would take care of the issue raised by Mr Maynier. The second aspect related to the public domain. He could be persuaded to accept the notion that if government lost its secrets, a private individual could assume a citizen’s responsibility to return them, but did not think that this should be forced by the threat of prosecution. This did not detract from the fact that this information was now open, because it had been read by someone, so it was not possible to turn it back into a secret. He stressed that there was a need for a public domain defence, which had originally been included in the Bill when commercial interest was included. He read out his proposed wording for this defence, and suggested that including such a defence would also take care of the second issue that Mr Maynier had raised. Even if the record needed to be recovered by the state, these issues were linked.

The Chairperson commented that the IFP had already been granted the opportunity to address the Committee on the public domain defence, and said it was not necessary to go through the whole process again.

Dr Oriani-Ambrosini said that the issues raised in the proposed subclause (b) must be addressed in the context of the public domain defence and erroneous classification.

The Chairperson reminded Dr Oriani-Ambrosini that this defence was not being discussed and asked him to confine his discussion to this clause.

Ms Mentor thought that the proposals of the DA, which clearly required the public to have knowledge of the types of matters that would be excluded, seemed to be directed to the educated elite, and asked if members of society at different levels were not being treated differently in respect of the obligation to return records.

Mr Maynier responded to Ms Mentor that everyone should be treated equally and that he would not like to underestimate the understanding of “ordinary” people, who would no doubt be able to interpret what was set out in (b)(i) to (vi).

Ms van Wyk referred to the hypothetical situation described by Mr Maynier, and allegations of tender irregularities in Western Cape reported in the media, and asked whether the journalist or MP in his example would really have the capacity to determine the truthfulness of the document, and suggested that the responsible way to deal with such a document would be to hand it to the investigative authorities.

Mr Maynier responded that the capacity would depend on the person getting the information. This proposal set out exceptional circumstances in which there would in fact be a duty on the person to disclose the information.

Mr Landers said that if a person opened his e-mail and found top secret information in that e-mail, he would have to inform the authorities, and nobody could then impugn his intention. If that e-mail contained evidence of malfeasance, then a responsible citizen should notify the police of that fact. He reminded Members that the ANC had already agreed to clause 51, which noted that any person who had classified a document for ulterior motives, including concealing a breach of the law, promoting an unlawful act, in an attempt to prevent embarrassment, or to give undue advantage to anyone in a competitive bidding process, was guilty of an offence.

Mr Landers suggested that Dr Oriani-Ambrosini should access Judge Moseneke’s judgment in the Independent Newspapers matter. The law was not saying that a person coming into possession of a classified document should not read the information, but was simply saying that that person should inform the relevant authorities and make arrangements for return of the document, and the further communication of that information was dealt with in another part of the Bill.

Mr Landers then addressed Mr Maynier’s question, saying that if the person reading the document realised that there was malfeasance, which amounted to an offence on the part of the person covering up, then the reader of the document should lay a charge against the classifier, and should also request review and declassification.

Ms Smuts returned to the question she had asked earlier, and asked if the ANC would consider that a person should not be charged for possession before taking the information to the police or applying for review, and suggested that this could be done by adding words to the effect of “or request access through this channel” to the clause.

Mr Landers said that this position was already dealt with elsewhere in the Bill.

Ms Smuts did not feel that the clause 20 application related to the position where a person may already be in possession of the information.

Ms Smuts commented, in answer to the points raised by Dr Oriani-Ambrosini, that, although she personally did not like it, Judge Moseneke’s judgment in the independent Newspapers case was binding. This said that a public document could not be deemed to have lost its declassification. However, there were other possible ways to make provision in the Bill to deal with this issue, and she would be suggesting insertion of another subclause in clause 38.

Dr Oriani-Ambrosini responded that the Constitutional Court would only set aside laws written by the legislature if they were inconsistent with the Constitution. However, this was tested at “floor level” and he thought it was still open to the Committee to raise that level. He felt that if the legislators were to specify, in a new law, that whatever was in the public domain would no longer be regarded as classified, then this would override the Moseneke judgment. He felt very strongly about this point. Mr Landers had suggested that when the record was returned, application should be made for declassification. However, he asked what would happen if, simultaneously with that, the record was published in a thousand websites elsewhere, and at what point something would be regarded as no longer secret. He asked what would happen if that record was published, in the meantime, in a thousand websites, and what created the need to keep that secret. That obligation to keep matters secret was on the State agents. There had to be a point at which something was no longer a secret.

The Chairperson posed a hypothetical question as to the legal consequences, if he had lost his watch, and another person found it.

Mr Swart said that according to the law, something that was “lost” was res nulla and the finder of the watch could keep it. However, the moral position was different.

The Chairperson took issue with this, saying that the owner remained the owner as long as he did not have the intention to dispose of his property. Another person taking the watch could be charged with theft. He asked if documents had owners, or at least lawful custodians, and the question was whether a new possessor of a document would be regarded as a thief. He said that the public interest was irrelevant, because this was someone else’s document, and the law placed an obligation for its return.

Mr Swart said that it was necessary to distinguish between possession and ownership. However, he noted that at a previous meeting, Ms Smuts and Mr Landers had referred to the possessor. The Chairperson had suggested that the Bill should make provision that the person should not be criminalised during the period prior to the document being brought in.

Mr Landers said that the issues should not be confused. This clause was saying that the possession must be reported. The fact that the report was made meant that the person would not be prosecuted, because that signalled his intent to follow the law. However, a person keeping the document in his possession was not being responsible.

Mr Swart said that he agreed. If a top secret document was obtained that Koeberg was about to explode, a person should be able to bring an application to court, and it would be illogical for that person firstly to have to hand the document in and follow the normal procedures. However, he had understood that the narrow sense of “possession” was being referred to, and at the moment that period of possession prior to handing in was criminalised.

Mr Maynier asked Mr Landers to clarify the case of disclosure, saying that in the example he had given, surely an MP would have a democratic duty to disclose. The most important aspects were disclosure and public interest. He suggested hat perhaps this clause should be flagged until the Committee had deal with disclosure.

Ms Smuts suggested that another option might be to discuss disclosure at this point.

Dr Oriani-Ambrosini agreed with Mr Maynier’s suggestion. However, he questioned what would happen if the information was sent to every MP, the SABC, the media and others. If everyone diligently brought this to the SAPS, in theory they should all file a petition for the information to be declassified. He reiterated that when the state let this secret go, it was no longer a secret.

The Chairperson asked him not to go into the issue of public domain again.

Mr Landers suggested that clause 16 was neither about possession, nor disclosure, but merely said that a person who found himself in possession of the information must arrange to have it returned.

Ms Smuts suggested that it would be useful to move directly from here into a discussion of the public disclosure defence.

Mr Landers suggested, in light of the discussions just held, that perhaps the clause dealing with illegal classification could be clarified by explicitly placing an obligation on SAPS to investigate cases of malfeasance, bribery, corruption and other instances, when this was brought to their attention. This would mean that the matter did not stop at the point where the authorities were informed of the disclosure, and should allay the fears of the DA that it might not be investigated.

Ms Smuts said that the question was what must be investigated.

Mr Landers stated that the intent of the possessor had been signalled by his handing in the document, and if corruption was apparent from the document, then this must be investigated.

Ms Mentor did not wish to dilute Mr Landers’ proposal, but asked what would happen if the South African Police Service (SAPS) itself was corrupt, and if it was likely to investigate itself, so it might be necessary to widen that provision, perhaps by adding a rider to say that another state organ could investigate.

Mr A Maziya (ANC) pointed out that it was difficult to craft legislation around every eventuality, or make presumptions. It was necessary to assume confidence in the proper working of systems.

Dr Oriani-Ambrosini said that the Classification Review Panel (the Panel) did address many concerns, and created a responsibility on the state to try to do things in the proper way. However, he felt that civil society and Parliament also had a role to play. Usually the interests of the state and the interests of the people were the same, but this was one of the Bills where they did not necessarily coincide. The history of South Africa bore testimony to the fact that much exposure of wrongdoing had been sparked by the media, or civil society activists.

Ms van Wyk commented that SAPS had obligations to investigate every case, and she was concerned about implications that the state could not investigate itself, pointing out that there were many instances of prosecution within the Social Services Agency.

Clause 48 (clause 38 in original Bill)
The Chairperson noted the proposals on page 12. This clause read simply that a person failing to comply with the obligations was guilty of an offence and liable to a fine or imprisonment (now five years), or both. The DA had submitted another proposal below that, on the same page.

Mr Landers confirmed that the ANC would prefer the original wording to remain.

Mr Maynier outlined the substance of the proposal. The DA believed that a person should not be prosecuted if s/he was in possession of classified documents, in exceptional circumstances. These were now set out in subclause (b)(i) to (vi), and included instances where the classification had been done to try to conceal some unlawful act.

Dr Oriani-Ambrosini added that the IFP document submitted earlier had suggested that a person should be allowed to raise, as an exculpatory defence, the fact that there had been improper classification. All the suggestions made by Mr Maynier under (i) to (vi), with the possible exception of unlawful restraining of competition, related to situations where the document should not have been classified. He wondered if the IFP suggestion was not a better way of dealing with these matters. He referred back to the clause stating the circumstances in which a document could not be classified, and pointed out that it was possible for a document to be classified for a legitimate purpose, although it may, as a side issue, hide corruption.

Ms Smuts said that the virtue of the DA proposal was related to the fact that these considerations must be taken into account at the prosecution stage. No prosecution may be instituted without the written authority of the National Director of Public Prosecutions (NDPP), if it carried more than a five year term of imprisonment. The proposed new subclauses (b)(i) and (v) encapsulated unlawful acts or omissions, and also set out other clear instances of unjustified classification. The way in which this clause was written placed an obligation on the NDPP to consider whether the classification was justified, rather than merely proceeding on the assumption that classification was correct.

Mr Maziya asked for clarity on procedural issues, saying the arguments seemed to suggest that proper investigations would not be done.

Ms Mentor said that if the clause was worded as the DA proposed, the state would have to conduct a trial within a trial, to check whether the classification was correct, and the Bill already catered for the setting up of a Panel to check the classification.

Mr Maynier assured Members that there was no ulterior motive behind this proposed insertion. A person could still be prosecuted for possession unless s/he fell within one of the exceptions set out in his proposal. The ANC’s position was weak because under the original wording of clause 39 any person could be charged with possession, even where the classification may have been incorrect, and that was not in line with the principles of a democratic state.

Mr M Sonto (ANC) said that he was not sure how to convince the opposition parties that this piece of legislation would cater for their fears. Legislators should never legislate for wrongdoers. The proposed clauses 16, 15, 20, and 33 all tried to cover any possible loopholes. The opposition parties seemed to be passing a vote of no confidence in the justice system, and were suggesting that the courts would not be able to interpret and apply the Bill. The status review provisions had specifically been drawn so that a person would not be convicted if s/he was a law-abiding citizen.

Mr Maynier said that if the opposition parties were to exercise any vote of no confidence, it would be around these clauses. There were clearly differences in approach. This issue had first arisen during the discussions on the public interest defence. The compromise suggested by the DA was that if the public interest defence was not to be included, then at least the exceptional cases in which classified information may be disclosed should be set out. He thought it was the duty of people to disclose “classified” information that revealed malfeasance.

Mr Sonto said that the procedure had been explained several times, and the process for asking for declassification of that information must be followed.

Mr Fihla said that Members should not forget about the protection created elsewhere in the Bill, including the Panel, who could be asked to check if there was irregularity.

Ms van Wyk suggested that the issue should be flagged for further discussion.

The Chairperson agreed, and asked Members to look at page 22 of the original Bill, clauses 38, 39 and 40. Page 8 of the Committee Proposals document handed out earlier set out the proposals for renumbered clause 16, and page 12 set out proposals under the heading of “Failure to report possession of classified information”. Members were asked not to indulge in further debate on these clauses.

Ms Smuts noted that the wording of this clause still reflected “both such fine and imprisonment”, and this should, for consistency, be stated in the alternative.

The Chairperson also referred Members to page 11 of the Committee Proposals document, saying that some time ago the clause had been amended to include the new subclauses (a) and (b), to cater for concerns that whistleblowers were not getting sufficient protection. He clarified that the effect of Mr Maynier’s proposals was to move the wording in those subclauses to a new subclause (c), and then to insert a new subclause (b).

Ms Smuts added that this proposal was an alternative, should the arguments on a separate public interest defence not be accepted. A former Minister of Intelligence, Ronnie Kasrils, had thought that a person disclosing matters of public interest, in good faith, should not be found guilty of an offence.

Mr Landers moved that this clause be flagged for further discussion.

Mr Swart said that the different proposals made in the earlier meeting had an impact on this clause as well, because there had been different levels suggested for a public interest defence. He had supported the DA position, but had also suggested an alternative, should the DA position not find favour. Dr Oriani-Ambrosini had put a slightly different position. He asked that this be borne in mind when the issue was flagged.

The Chairperson asked that the State Law Advisors incorporate, in the next discussion document, the narrower wording as suggested by Mr Swart, as well as that of the DA.

Mr Landers noted that other than what was set out on pages 11 and 12, clause 47, as set out on page 13, also contained an agreed wording to the effect that “other than as contemplated in section 42” the provisions would apply. That would also need to be taken into account.

Dr Oriani-Ambrosini asked it to be recorded that he had also tabled some suggestions on defences, and would like those inserted into the next discussion document. These related to the deletion of previously-numbered clause 43 (now clause 52), and an addition to previously-numbered clause 45 (now numbered clause 54), and some other amendments in respect of previously-numbered clauses 37 and 46 and 51.

Outstanding issues
Members noted that there was still an opinion expected from the State Law Advisors on prejudice to the Republic. There was a debate as to whether the Canadian definition should be used.

The Chairperson also noted that Members still needed to deal with issues around hostile activities. They would also need to consider whether, as suggested by Dr Verne Harris,
Head of the Memory Programme at the Nelson Mandela Foundation's Centre of Memory and Dialogue and former Deputy Director of the National Archives, a national declassification database would not be required.

Dr Oriani-Ambrosini said that whilst he had confidence in the opinions of Dr Harris, he wondered why the National Archivist had not been asked.

Mr Landers clarified that Dr Harris had been the Deputy Director at National Archives for many years, until head-hunted by the Nelson Mandela Foundation. Dr Harris brought enormous experience, and no disrespect had been intended to the present National Archivist

The Chairperson added that Dr Harris was universally proposed as an expert. It would, finally, be the decision of the Committee as to whether the national declassification database was needed. There was also a need to decide whether the wording around archival material used in the 2008 version of the Bill was preferable.

Ms Smuts noted that the DA was not yet ready to put its position on this and also wanted to take guidance from Dr Lotriet.

Mr Swart said that Dr Harris had put forward some compelling arguments to do away with the database, and had intimated that it was also unnecessary, given the existing filing systems. He had also pointed out that the costs and capacity required to run such a database would be substantial. He had also made the point that elsewhere in the world, classified and valuable information were not dealt with in the same piece of legislation. His proposal to reconsider using the 2008 version of the Bill seemed to have merit.

The Chairperson said that it was not his intention to encourage in-depth discussion on this issue now, but to clarify that Members had all the knowledge they required to come to a decision. He simply was alerting Members to issues so that they could prepare for a full discussion.

The Chairperson asked Members to look at the issues around PAIA.

Ms Smuts said that she had looked at the PAIA appeal mechanisms, and she wanted to ask the State Law Advisors to give an opinion, since the PAIA provisions on how courts should deal with the information seemed to diverge from what was said by Judge Moseneke in the Independent Newspapers case. She referred in particular to section 80 of PAIA, which stated that any court hearing an application for access to information that had been withheld may examine any record, and no such record may be withheld from the court. However, clause 80(2) then said that the court could not disclose any record if access to that record may or must be refused by the information officer under PAIA. Judge Moseneke had taken the default position of openness, weighing open justice against national security concepts, and had ruled that no one may presumptively close off records, and it was within the discretion of the court to make those records public. She was interested in hearing how this would lie alongside section 80(2).

Mr Landers said that the main issue being discussed by the Committee was whether this Bill should provide for the same appeal process as was set out in PAIA. What Ms Smuts had raised was a separate issue.

The Chairperson noted that the application clause and the preamble, which were also still to be discussed, were not expected to raise serious contentions. He suggested that Members should engage with each other outside the meeting, to try to reach consensus wherever possible.

The meeting was adjourned to the following day, at 09:00.


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