The State Law Advisors presented a new Working Document and Committee Proposals document on the Protection of State Information Bill. They indicated the agreed definition of “national security”, the agreed portions of the Objects clause, and insertion of a new clause 57(1)(m). There was still a proposal that clause 2(j) in the original version of the Bill should be included in the Objects Clause, and a proposal, for the Applications Clause, from the DA, that a proviso be inserted clearly indicating that any opting in must be done for reasons of “national security”. This proposal was, however, later in the meeting, withdrawn, when the ANC had made a concession to drop all references to “security” (as opposed to “national security”) from clause 13, as the inclusion of these words in the opinion by Adv van Rooyen had been a mistake. New clauses 32(3) and (4) were drawn, although Members said that they wished the wording to be tightened to be more specific on “prepare a report”.
The State Law Advisors and Parliamentary Legal Advisor had prepared an opinion on clause 55, which had been of concern to the Committee because, as originally worded, it seemed to be too prescriptive to the courts. It was clear that a number of competing rights and interests would be weighed up by the courts, and although a minority
Members agreed that the proposals on the public interest defence would be discussed at the next meeting, when the ANC would give its response to the various options put forward earlier by the opposition parties.
Protection of State Information Bill: Working Document 22 and Committee proposals 22
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, outlined the alterations that were made following the previous day’s meeting. A definition of “national security” had been inserted at page 16, following the agreement of Members.
She then noted that the objects of the Act, as agreed to, had been inserted on pages 23 and 24, and this version clearly showed what had been substituted or deleted. Paragraph (j) was still retained, but she would comment on this later.
On page 86 of the Working Document, she noted the insertion of the new subclause 57(1)(m) dealing with the regulations, and the substitution of the word “returned”.
She then referred Members to the Committee Proposals document, and pointed out that on page 1, the Objects of the Act contained an insertion of the previous clause 2(j) as it had appeared in the original Bill, for discussion.
In respect of the Applications clause 3, on page 2, the words “or part thereof” had been inserted into the proviso, to make it clear that either a whole department, or part of it, could opt in.
Mr L Landers (ANC) noted that there was, as yet, no agreement on which of the proposals for clause 3(2)(b) would be used.
Ms M Smuts (ANC) said that as long as the ANC retained the concepts of both “security” and “national security” alongside each other, the DA would like to have its proviso reflected in a separate proposal, as it was insistent that this must be made subject to “national security”.
Ms Booyse noted that on page 7, new proposals were inserted into clause 32, dealing with the declassification procedure. She indicated the new clauses 32(3) and (4). The clause therefore required the Classification Review Panel (the Panel) to prepare the annual report in line with 32(1), then to table it in Parliament, in line with (2), and ultimately to publish it in line with (6).
Mr D Maynier (DA) said that this seemed to be a good suggestion, but there was a need to tighten up the wording of “prepare a report”, in clause 32(3), to be more specific. He would like to make some suggestions on this, when appropriate.
Ms Booyse noted that the SLAs had, owing to an oversight, not included “in the prescribed manner, but this would be included in the next Committee Proposal document.
Clause 55: powers and duties of the courts
Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Advisor, said that the State Law Advisors and Parliamentary Legal Advisors had considered how the courts had handled classified information. This particular terrain was quite tricky, in the sense that it dealt with a number of competing rights and interests. Section 173 of the Constitution gave the courts the power to determine their own process. However, they were obliged to exercise open justice principles, which the courts themselves had repeatedly emphasised as vital to public confidence. The public’s right to access to information must also be balanced against the government’s right to protect security of information. The courts did not dispute the legislature’s interest in how justice was dispensed, and accepted that the separation of power principles did not mean that one arm of government could not ever deal with anything in another sphere.
Having said that, the current version of the Bill did have some problematic provisions. Some of these, in the opinion of the law advisors, tended to err on the side of prescribing to the courts how they should act, rather than merely attempting to set guidelines, which would achieve a better balance.
Mr Vanara read out extracts from the Independent Newspapers Constitutional Court judgment. In paragraph 3, the Court noted that where there was a dispute on the disclosure of information in documents that were claimed as classified, the right to review the confidential information ahead of the court case may frustrate the confidentiality claim. There would, however, be no problem with giving guidelines to the Court on how that classified information should be handled prior to the judge giving a decision on it.
Paragraph 45 of the judgment said that it was not uncommon for legislation and common law in
Mr Vanara noted that there was a further challenge in respect of clause 55(11). This noted that “at any court hearing related to this Act” a minimum of three judicial officers must be assigned to hear the matter. This too interfered with the inherent power of the courts to make a proper determination of what may be appropriate in each case. This was essentially saying that, irrespective of other court priorities, whenever there was an application for a determination in terms of the Bill, the Judge President would have to make three judges available. This would be problematic.
Mr Vanara said that the legal advisors also wanted to note that it would be necessary to ensure that whenever the case involved classified documents, this fact must be specifically brought to the attention of the court. Courts operated in an environment of transparency and openness, and if they were not sensitised to the issues that required secrecy, it was possible that something might slip through.
Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, then continued with the presentation, setting out the proposals that the law advisors had suggested were more appropriate to balance competing rights and interests.
Firstly, they had proposed that clause 55(4) should be replaced, because it did not afford the court any discretion in deciding whether a hearing should be held in camera. Instead, the law advisors suggested that the following wording should be used: “ “If it appears to a court that it would, in any hearing held in relation to the determination referred to in subsection (1), be in the interests of national security or in the interests of justice that such hearing be held in camera or that the submissions referred to in subsection (3) not be publicly disclosed, the court may direct that the hearing must be held in camera and that any person not authorised to receive such state information may not be present at such a hearing”. This would not be so prescriptive.
The legal advisors had then also suggested that clause 55(11) be substituted with the following:
”In any proceedings where an official or a functionary of an organ of state intends to file records that contain classified information, that official or functionary must alert court officials and the court of the classification of the information and request court officials to seal the record or parts of the record that contain classified information pending a court determination on the proper handling of such information during the course of legal proceedings”.
Mr Makabeni noted that the remainder of the current clause 55 did not appear to interfere with the discretion for the Court.
The Chairperson asked who would decide how many judges must sit on a matter. The original Bill, in clause 46(11), said that “a minimum of three judicial officers should preside”.
Mr Makabeni noted that it would be the head of the court, namely the Judge President, who would decide on matters. He was not sure how this was decided, but the State Law Advisors would check if this was set out in the Rules of Court.
Mr S Swart (ACDP) agreed that sub clause (11) should be deleted. He also thought it was in the discretion of the Judge President to determine how many judges should sit, and which cases might warrant a full bench, in consultation with Counsel from both sides.
The Chairperson said that normally two judges were dedicated to dealing with reviews. If the Minister was taken on review there would normally be two judges sitting, and there was no need to interfere with that. He questioned the customary position with urgent applications, particularly in serious situations involving matters such as national security.
Mr Vanara said that as far as he could recall, this remained in the discretion of the Judge President. Even if there was a rule, he thought that the judiciary may have developed it.
The Chairperson asked if there would be any way in which the Judge President could be “encouraged” to exercise his discretion in a particular way.
Mr Vanara suggested that the Committee must start from the premise that the members of the judiciary were experienced enough to make their own assessment around the sensitivities. If it were to move from the premise that judges may not be capable of doing so, then the Committee would perhaps need to be more specific. He would advise the Committee to leave this in the discretion of the courts.
The Chairperson noted that for appeals from lower courts, and for reviews, at least two judges sat and he wondered if this was a question of practice, or was done for reasons of reporting.
Mr Vanara reiterated that he had understood that this was a process determined by the judiciary itself.
The Chairperson then pointed out that a matter of national security would surely be considered as particularly important and wondered if there was a way in which the importance of such matters could be indicated, so that more than one judge should be assigned. The state’s interest was surely worthy of being protected stringently. He agreed that the courts’ authority should not be undermined, but wondered if there was a way to set a precedent that would emphasise the seriousness of the matters.
Mr Swart agreed that the two-judge rule should be applied. He thought that in some matters one judge would sit on appeal. He shared concerns about the wording of subclause (11), which was presently worded to cover “any court hearings”, noting that it would be unprecedented for any other criminal prosecution, let alone an urgent application, to be heard by three judges. He suggested that it was necessary to check the provisions of the Supreme Court Act and Rules.
Mr Landers said that he had taken note of the points raised, and asked for time to consider them. He expressed his gratitude to the legal advisors for their opinion, and their assistance in drafting proposals for these subclauses. He agreed that this clause, as originally worded, was far too prescriptive, especially when it referred to the hearings in camera and numbers of judges. He pointed out that the minority judgment of Judge Sachs in the Independent Newspapers case had made the point that the judiciary must also be guided by legislation, but he agreed that when giving the Courts guidelines there was a certain limit that should not be crossed. The Bill, as originally worded, had gone too far.
Mr Landers welcomed the new subclause (11). However, he thought that this should be moved up to be renumbered as subclause (1), so that the Court was sensitised to the fact that it was dealing with classified information. He agreed that in the past, there had been a failure to protect this information properly, because the Courts were used to dealing with all matters in an open and transparent way. If there was not this protection, then there was a risk that Top Secret information could lie around where it could be accessed by anyone.
Mr Landers agreed with Mr Swart that there should not be an attempt to prescribe how many judges should sit.
Ms Smuts said that the proposed subclause (4) was more or less what the DA had tried to achieve when it submitted a draft, although that draft had been longer. She commented that the proposals around subclause (11) were interesting. She noted that in the Independent Newspapers matter, the classified documents had served before the Gauteng High Court, and that the information was in fact initially available on the
She noted Mr Landers’ suggestion that subclause (11) should be made into subclause (1). However, she wondered why the law advisors had not proposed any changes to (1), which, as it stood, was based on the premise that classified information placed before a court would always be hidden, unless the court ordered its disclosure. She noted that it was the conclusion in Judge Moseneke’s judgment that the mere fact that a document in a Court record carried a security note did not mean that the Court may not make a determination whether to open those to the public. The classification of a document under operative intelligence legislation did not place these documents beyond the reach of a Court. She therefore suggested that the wording of (1) should be switched around, so that it read: “Classified information must be disclosed.. unless a Court, on application, finds that such disclosure would not be in the interests of justice, and the Court may limit this with or without conditions”. This must then be read with subclause (4).
Ms Smuts said that there was also a problem with subclause (9). This empowered the Head of the organ of State to apply to the Court for an order restricting the disclosure of unclassified information, which, if publicly disclosed, may undermine the “national interest” – as it was then worded. This whole clause made no sense in the context of the current Bill and should be struck out.
Ms Smuts agreed that the Committee needed further advice on how the number of judges was decided, and wanted some time to check how subclauses (1) and (11) affected each other. She felt very strongly that records could be sealed, pending the Courts’ decision, but stressed that the concept and principles of open justice should be maintained and stated specifically.
The Chairperson asked the law advisors to give an indication of when a matter would be considered to be “before the Court”. He thought that records would only be available once the matter was called ”before the Court”, by the Registrar. That principle was adopted from the English law. If the case was considered “before the Court” when affidavits were filed, then the documents would be open at that stage. He did not think that it was correct for a Registrar or public official to decide whether a document could be accessible, as that decision should be made by the Court.
Ms Smuts said that if this was so, then perhaps there was no need for subclause (11). She pointed out that the material had been placed on the website of the
Mr Swart wondered if “called before” meant the same as “placed before”, which would presumably be when papers were filed. It was indeed important to decide who had access to the papers when they were filed, because this would determine whether another interested party might bring an application on those papers. It was necessary to determine what the situation would be when the documents were held by the Registrar before being placed before the judges.
The Chairperson reiterated that no official tasked with filing the documents should have an obligation to decide if this was a matter of national security. He added that it was possible that the parties may decide to withdraw or settle and they should then be able to file further affidavits. He pointed out that, in criminal matters, the name of the person arrested should not be published before the matter was called.
Mr Swart said that in certain instances affidavits would be regarded as in the public domain when the Court stamp was placed on them. The question was whether the Committee must follow the principle of openness as set out in the Independent Newspapers judgment, and whether the State should actively bring an application to protect its documents. These were not easy issues and further deliberations were needed.
Mr Landers agreed that Mr Swart had clearly indicated where the difficulties lay. The concept of openness was acknowledged. He fully agreed that if classified documents were placed before the Courts it should not be left to an official such as the Registrar to decide what should be done. That was why he had suggested that subclause (11) should appear at the start of the clause, to alert the parties to the fact that care must be taken. The question of whether the documents would need to be “sealed” should be discussed and he was open to persuasion on that point. He thought that no assumption should be made that it had been correct to place documents on the
Mr Landers also agreed that it was necessary to find out exactly when a matter would be “before the Court”. In practice, the head of the organ of State would submit the documents, and if the matter was “before the Court” at filing stage, then it would be easy for journalists then to ask for the documents. He thought that it was more correct that anyone wanting to access the documents should bring an application to have them released, and would have to show good cause why a classified document must be made available. He was not sure whether the Rules of Court covered this.
Ms H Mgabadeli (ANC) noted that some guidance was needed. She made the point that in the past, there was much “sophisticated mob justice” done in Courts, and the Committee had been requested to correct it. She believed that the new subclause (11) was far better.
Mr M Sonto (ANC) said that it was necessary to look carefully at all the subclauses to ensure that they were not contradictory. For instance, subclause (2) required the Court, after careful deliberations, to “order determination”. Subclause (3) said that “a Court may not order… without taking reasonable steps”. If it was assumed that information might be released before it actually came before the court, then it would be necessary for “sealing”, to close off access to that information, but if it was assumed that between the time that the documents moved from the Registrar to the Court information could be released, then this did not make sense. He agreed with Mr Landers that the new proposals for (11) would be a useful introduction to all the other subclauses. The Committee would like to see the proper discretion left to the Courts, but in this case it should be cautious not to use “must”, as there was a great difference between “must” and “may”.
Ms Smuts said that she wanted to refer to a portion of Judge Moseneke’s judgment in the Independent Newspapers case, and this was the approach that the DA advocated. This extract indicated that where there was a dispute over the disclosure of information that was claimed to be classified on the grounds of national security, then a right to preview might frustrate the confidentiality claim. This seemed to answer the concerns on early disclosure. However, it was a point of departure of the same judgment that a mere classification does not place the document beyond the reach of the Courts in the sense that the Court could, notwithstanding that classification, decide that the information in the document could be made available. These were not necessarily contradictory. If Members agreed that the Court should be given a discretion, the point was simply how to express this.
The Chairperson thought that the matter could be simplified. A requestor might call for information in terms of the Promotion of Access to Information Act (PAIA). If the Information Officer found that the information was classified, the application would then be dealt with in terms of the Bill. A review of the classification would take place, and this might indicate to the Head of the organ of state that there was no reason to make the information available. The requestor could then take the matter on internal appeal, and then to court. He said that surely once the papers were filed, this was essentially a review of the Minister’s decision, and not an appeal in terms of the Court processes. Two judges would normally be assigned. It did not make any sense for people to get access to information in those documents before the Court decided that this might be appropriate. The fundamental principle was that classified documents should not lie around in the Court files. That was what this Bill needed to regulate. Even in a criminal matter, if this involved a classified document, then the Court must decide how it must be dealt with.
Mr Landers said that this could be expressed in a slightly different way. Subclause 55(1) referred to “classified information placed before the Court” and this begged the question whether “placed before” happened when the functionary filed those records with the Registrar, or when the matter was called in the Courtroom. If it was acknowledged that there was a problem in documents being at risk of lying around, then this must be corrected. The
Mr Swart agreed, noting that he thought that (11) might be applicable at the stage of filing. If this subclause was included, then perhaps, instead of the word “seal”, it might be appropriate to say “protect from disclosure and publication, pending a court determination on the proper handling of such information”. That would require protection from disclosure between filing and when the Court started to hear the matter.
He agreed that the Committee must still decide whether subclause (1) should be switched around to give a different emphasis.
Ms Smuts responded, to the Chairperson, that a matter would be quite straightforward if it involved a requestor’s application for information, because that classified information would not be disclosed until there was a ruling. However, she pointed out that PAIA allowed for appeals on the merits, not just a review. The Supreme Court of Appeal judgment of Judge Nugent referred to the merits, and the judges were allowed a “judicial peek” at the Moseneke/Khampepe report. Harder cases would involve contested material, and in the Independent Newspapers case there was a report that was regarded by one judge as “misleading”. All Members seemed to agree that the answer lay in the discretion of the courts, but she repeated that the point of departure must be that records were generally open for access. This was a Constitutional issue, and a great deal turned on it.
Ms Smuts, in answer to Mr Landers, thought that the rest of the judiciary would be sensitised to classified information because the Independent Newspapers case had been quite controversial. There were several articles that took issue with the majority judgment,
The Chairperson said that nothing said by Ms Smuts changed the fundamental principles that once a document reached the Court, it would have to be filed. At that stage it would not be brought to the attention of the judicial officers. The present wording of subclause (2) presupposed that a matter was already before the Court. That was not where the danger lay. It was necessary to protect a matter before it reached the Courtroom. For this reason, wording such as “unless the Court orders” may not be sufficient, because it implied that the matter was already before the Court. It was necessary to ensure that before the documents even reached the Court, they would be protected.
The Chairperson asked the State Law Advisors to comment on “sealing”, which seemed to be an English concept.
Ms Booyse said that there was provision for “sealing” also in the South African law. It was generally used when search and seizure warrants were involved, to ensure that documents that would normally be subject to privilege – such as attorney and client privilege – must still be handed over but would remain protected.
Mr Swart said that even if the document was ‘sealed” it also had to be additionally protected by putting it in safe custody. He was not opposed to using “sealed” but the question was how far this would protect a matter from disclosure and publication. The Court must make an order to “protect”. He asked the SLAs to consider what the best wording for this would be.
Mr B Fihla (ANC) thought that “sealing” would normally imply that only a judge could open the seal, so this implied protection from tampering with the information.
Mr Vanara said that the entire intention of the Bill was to “protect” State information, and that should be done until the court made a determination either way He was persuaded that “protect” was the correct wording to use.
Mr Landers said he was now even more convinced that (11) should be moved up to (1). He agreed that the Members should look at whether (1) should also be reworded.
Mr Landers was not sure what the intention was behind (9). If a Director General wanted to bring an application to protect additional documents, he could in any event do so, so this subclause seemed superfluous.
The Chairperson agreed that this clause was misplaced in the Bill, which was dealing with classified information. Anyone – not just a Director-General – could bring such an application.
Members agreed that clause 55(9) should be deleted.
Members also agreed to the deletion of clause 55(11) as originally worded, and the substitution of the new subclause (11) proposed by the law advisors, as amended by the suggestion of Mr Swart, so that the word “seal” should be replaced with “protect the record or parts of the record that contained classified information from disclosure or publication, pending a Court determination on the proper handling of such information during the course of legal proceedings”.
Members agreed to give further consideration as to where this subclause should appear.
Members further agreed to delete clause 55(4) as originally worded, and to replace it with the proposed wording of the law advisors.
Mr Landers urged the Committee to agree on making the newly-agreed clause 55(11) into clause 55(1), with the remainder of the clauses to be renumbered. That would make the intention obvious upfront. He was open to persuasion on whether the wording of the current 55(1) should be altered, but would like to hear further comment.
Ms Smuts said that she also agreed with moving 55(11) up to become 55(1). If the new 55(11) was moved to a new place, then its grammatical impact would be to remove the contested first sentence from the current 55(1). The new subclause (4) would have effect on the surrounding clauses. She asked that the law advisors look at the grammar, and adjust it, in the light of what was now said in subclauses (11) and (4). The law advisors might then find that there was in fact no conflict with the concept of open justice as a default position. She fully agreed with the proposal to delete 55(9) and the references to three judges.
The Chairperson summarised the agreements of Members for the SLAs. He noted that (11) should be moved up to become (1) and the remainder of the subclauses would be renumbered. He asked them to look at adjusting the language in (1) and check that the remainder of clause 55 was consistent with the changes now made to clauses (4) and (11).
Mr Swart added that the substitution for “seal” as agreed to, should also be reflected. He also asked if the SLAs could check the wording of clause 55(2)(b), where the word “and” was used. He thought that, for consistency, this needed to be replaced with “or”.
The Chairperson asked the SLAs to effect those changes as well. He noted that the new wording would be circulated at the next meeting.
M Landers said that he thought the Committee was close to reaching finality. He wanted to note a formal proposal in respect of clause 13(1) and the application clause. The ANC had conceded that the inclusion of the word “security” in clause 13, in the opinion given by Adv van Rooyen, was a genuine error, and was therefore prepared to delete that word where it appeared in the clause.
Ms Smuts thanked Mr Landers for this, and said that, in light of that concession, it was not necessary to pursue her request for the proviso to the applications clause, as expressed earlier.
Mr Maynier welcomed the agreement to drop the word “security” and said that this would take the Committee forward.
The Chairperson formally requested the SLAs to now insert the application clause, without the proviso, into the Working Document, although the ANC’s changed wording, as reflected on page 2 of the Committee Proposal document, must be reflected.
He then asked that the SLAs remove the word “security” from clause 13, so that all the subclauses referred only to “national security”.
Mr Maynier said that when the Committee next met, the most important outstanding issue still to be dealt with was the question of the public interest defence. He noted that the DA had made a proposal on this, but there was also an alternative, which took the specified exceptions approach. He asked that this be addressed on the following Tuesday.
The Chairperson noted that Members had requested an opportunity to address the Committee on the public interest defence, and that proposals on this had been tabled at a previous meeting. He asked Mr Maynier if he was asking for a further opportunity to address the Committee.
Mr Maynier confirmed that he had addressed the public interest defence at length but an alternative had then been proposed, and Mr Landers had said that he thought that there was some merit to those proposals.
Mr Landers corrected him, stressing that this was not what he had said; he had merely said that he wanted to “look at it”. This was very different to expressing an opinion on them.
Mr Maynier continued that in the intervening period Mr Landers should have had a chance to “look at” those proposals, but the Committee had not had the opportunity to hear his response and discuss it.
Mr Swart confirmed that there had been much discussion already, and that Mr Landers had indicated that the ANC would be considering the submissions and would revert to the Committee. There were different proposals on this defence, in different forms, and he suggested that after the ANC had indicated its view, it might be necessary to hold further discussions.
The Chairperson asked the ANC to be prepared to give its response. However, he did not want Members to address again all the issues already outlined.
Mr Maynier said that the essence of his proposal was that he accepted that classified information should not generally be disclosed, but equally there were circumstances in which it could be disclosed, but he looked forward to hearing the response.
Mr Landers complained that what Mr Maynier had just said was precisely entering into argument again.
The Chairperson agreed that all Members had had sufficient time and exposure for their arguments. These were well-understood and decisions must be taken.
The Chairperson recorded his thanks to the law advisors for their opinions on clause 55.
The meeting was adjourned to Tuesday 30 August.
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