Protection of State Information Bill: Working Document 24 and Committee Proposals 24

Meeting report

Clause 16
Mr S Swart (ACDP) did not think that the intention of clause 16 had been correctly captured. The words “the prescribed manner” were placed so that they related to the manner in which the person delivered the document to SAPS. The Committee had intended that the way in which the police dealt with the matter must be prescribed. The wording should instead be changed so that, after the reference to the police, the words “who must deal with that in the prescribed manner” would appear.

The Chairperson reminded Members that clause 57(1) (m) would apply to clause 16. He asked the State Law Advisors (SLAs) to adjust that wording.

Ms M Smuts (DA) reminded the Committee that the DA retained its fundamental opposition to the clause, for reasons already explained.

Working Document 22 and document headed “Protection of state information before courts”
Ms Booyse noted that the newly numbered clause 55(1) now reflected the fact that an official intending to file a record that contained classified information must alert court officials and the court of this information and request them to protect the record, or parts of it, that contained classified information. The remainder of the subclauses had been renumbered. The old subclause (4) had been deleted and replaced by the new subclause (5), which now stated that the court may direct that the hearings must be held in camera.
The original subclause (9) had been deleted altogether. Subclause (11), relating to the number of judges, was removed.

Ms Smuts noted that on page 86 of the wording document a word had been left out. Further down that page, she questioned whether subclause (4) was still needed.

Ms Booyse explained that the new subclause (5) was a rewrite of the former subclause (4).

The Chairperson explained that the information about the classification and safekeeping was contained in subclause (2). Subclause (5) dealt with a separate issue.

Ms Smuts asked why the words “in any hearing” were included. Subclause (6) stated that a court “may not disclose” the classified information”. All the other subclauses left the discretion to the court, but this was prescriptive. She proposed that the clause should read that the court “may disclose”, subject to conditions.

Ms Smuts further believed that it was incorrect to sanction a person who published information under subclause (9) for ten years, and in any event pointed out that this clause contained no option for a fine.

Ms Smuts agreed that subclause (11), as now worded, tried to accommodate the principle of open justice.

Mr Swart agreed with Ms Smuts’ suggestions. He pointed out that in terms of clause 55(1) the court officials and court must be notified of the fact that classified documents formed a part of the record, so it was now clear that the court would have been appraised of this at an earlier stage than the clause originally had contemplated. At that stage already, the court might seek the written or oral submission under subclause (6), so it was possible that it could order disclosure already at that stage.

Ms Smuts said that her recollection was that Members had only agreed to speak on subclause (11) and reconsider the other matters at this meeting.

Dr M Oriani-Ambrosini (IFP) said it was possible to make provision for motion proceedings under subclause (1), so that a person, prior to filing the documents, should actually also file a Notice of Motion to seek directions, and that would place responsibility on the judge, rather than the Registrar.

The Chairperson said that in urgent matters, advocates would normally seek an appointment with the Judge President. However, in non-urgent matters the documents must still be filed with the Registrar or Clerk of the Court. That process was covered by subclause (1). There was nothing in the Bill to prevent an urgent application. The main issue was that a person should not file without alerting the authorities that the document was sensitive.

Mr Swart still said that there was still inconsistency. He added that in addition, the reference in subclause (6) was incorrect, as it should refer to, and follow the wording of, subclause (2). The inconsistency arose because subclause (6) said that the document “may not be disclosed” whereas (2) allowed the Court a discretion. Those two subclauses would have to be aligned. That would then exclude the possibility of prior proceedings under (1).

Mr L Landers (ANC) commented that in subclause (3)(c), the wording should not read “state information”, but “classified information”

Ms Smuts added that the word “is “ must be added into line 4 of subclause (3), between “include and "but”.

Members agreed that subclause (4) was acceptable.

Ms Smuts suggested that the wording in subclause (5) was incorrect, as it referred to “any hearing”.

The Chairperson thought that this merely referred to holding proceedings in camera. He did not think that it was referring to a particular clause. This was a hearing in terms of the Bill.

Mr Landers said that if it was general, then the reference to (2) became problematic, because subclause (2) in fact made no reference to a hearing. He suggested that the reference to (2) be removed.

Ms Smuts pointed out that this subclause referred to the submissions, and the authorities would have to argue why the matter should be heard behind closed doors, before the court exercised its discretion and made a ruling on this point.

Mr Landers suggested that the subclause should read “any hearing held in terms of this section”.

Ms Booyse explained that the former clause (4) was removed completely and the new subclause (5) was taken from the wording of the original (5), but it must be read with subclause (2), which referred to considerations of the interests of justice and issues of national security. That was the reason for crafting the clause in this way. She thought that the proposal could refer to a specific section or subsection.

Mr Landers proposed, along the lines of Mr Swart’s comment, that the clause should start: “If it appears to a court that it would, in any hearing held in terms of this section, be in the interests of national security or in the interests of justice that such hearing be held in camera …”

Ms Smuts still thought that the reference to the classifying authority had been more correct.

The Chairperson asked the SLAs to capture the amendment proposed by Mr Landers for subclause (2).

Ms Smuts suggested that “not” should be taken out of the second line, and that “subject to such conditions as the court may deem appropriate” should be inserted in (6).(The remainder of her sentence was inaudible).

Mr Landers said that subclause (6) sought to ensure that the decision taken in (2) was not breached and the information not disclosed, unless the court ordered full disclosure with or without conditions. He commented that the word “state” should be replaced with “classified”.

Ms Smuts said that the problem still was that there was inconsistency in the wording.

Mr Landers said that the court may not disclose prior to making its order to disclose under (2). This still did allow discretion to the court, because, it may, after considering the interests of justice or national security, order full or limited disclosure with or without condition. Subclause (6) said that prior to the court having made a determination under subclause (2), however, it could not disclose. The reference to subclause (1) must be replaced by (2).

Ms Smuts said that Judge Yacoob, in the Independent Newspapers case, had expressed the view that the legal representatives should have had the information before them. However, she said that Mr Landers’ reading was “bearable”.

Dr Oriani-Ambrosini was not sure what subclause (7) meant. Information would be given to the court and the judge would have to decide what should be done with it, using the powers conferred under subclauses (1) and (2). The court could order the information to be declassified, but, if so, it would have to do so on the basis that declassification was necessary, and that would be one of the conditions for use of the information in the proceedings. However, he was worried whether information, even if required, may not be declassified if the Director General and relevant Minister deemed it necessary to maintain the classification. The question then was whether the judge could rely on that information when making his decision – and the answer was that he probably could not. That raised the question whether a person could be convicted on the basis of classified information, or if classified information could be raised in his defence. He submitted that under no circumstances could information remain classified if it could prove that person was innocent of a crime.

The Chairperson said that he did not think that the last proposition was correct.

Dr Oriani-Ambrosini said that the classified information would have to be used by Counsel and the accused, because it was not sufficient for the judge alone to take cognisance of it.

The Chairperson said that this proposition did not change. It would not be necessary for the Bill to prescribe how the documents would be dealt with, and he did not think that the information would need to be declassified. Subclause (7) was not taking anything away, as it left the power to the court to deal with the document. It did not require declassification before the matter could proceed.

Mr Landers commented that subclause (4) provided that the court may not order the disclosure of classified information without taking reasonable steps to notify the classifying authority or obtain permission to use the information. This was referred to again in subclause (7). For this reason he questioned whether (7) should not be moved up to follow (4) directly.

The Chairperson cautioned against doing so at this stage, lest this alter the meaning.

Members confirmed that they were in agreement with subclause (8).

Under subclause (9), Ms Smuts asked again why the custodial sentence was stated as ten years. Under the original clause 38, it was stated as five years. She also proposed that the option of a fine also be inserted.

Mr Swart pointed out that a person charged under this subclause would, besides the statutory contravention, be likely also to be charged with contempt of court. He would support the lowering of this sentence to five years, with the option of a fine.

Mr Landers indicated that the ANC would agree to this.

The Chairperson asked if a fine was appropriate for something as serious as this.

Mr Swart said that it would be consistent with the approach adopted elsewhere. Only in respect of espionage offences was there no option of a fine.

Mr M Nchabaleng (ANC) said that if the information was given to another person, then a fine was appropriate. If a document was “leaked” in a courtroom this was a less serious offence, and he wondered if the fine should be specified.

Other Members did not agree. The Chairperson thought that it would be dangerous to start stipulating. The Court would decide what would be appropriate.

Mr Swart explained that usually no amounts were set, because they were linked to the period of imprisonment.

The Chairperson also noted that the subclause marked (11) at the bottom of the page should read (10).

Mr Landers noted that “the” before “national security” should be removed in the last line.

The Chairperson asked the SLAs to effect the amendments to subclause (9), and the typographical and grammatical changes to subclause (10).

Clause by clause consideration of the new Working Document 24
The Chairperson took the Committee through the new Working Document 24. The deletions were noted, but he asked Members to raise any comments on the clauses, as he went through. Where Members agreed that additions or deletions (as marked in the attached document) were correctly reflected, this was not specifically discussed. The page and clause numbers follow the layout of the new Working Document 24

Preamble
Ms Smuts said that “mindful of the right of access” to any information was the wording used in the Constitution. She noted that there should also be a change to the third paragraph, which should refer to the “right of access” to any information.

The Chairperson asked the SLAs to effect these changes.

Clause 1
Definition of “archives”
Ms Smuts noted that the provincial archives were an exclusive competence of the provincial legislature. The definition referred to “an archive established in terms of a provincial law” She was not sure whether including this reference might not raise problems in regard to the tagging of the Bill. She thought it would be more useful to remove this reference.

The Chairperson noted that this issue must be flagged for consideration later in the day.

Ms Smuts pointed out that, in the third last line, there was inconsistency, as both the words” designated” and “designating” were used.

Members agreed to remove both references.

Definition of “foreign state”
Ms Smuts questioned the origins of this clause, which also referred to “foreign companies”. She thought the definition should end after “the Republic of South Africa”.

Dr Oriani-Ambrosini noted that the remainder of this definition appeared to have been inserted from his proposal document.

It was agreed that the definition should end at “Republic of South Africa”.

Definition of “hostile activity”
Dr Oriani-Ambrosini believed that under paragraph (d) the phrase "a foreign or hostile” should read “foreign and hostile”. Every foreign agency ran intelligence operations, having received public information, and the use of “or” risked every foreign embassy, for instance, being regarded as “hostile”.

Mr Swart noted that this definition was taken from the Promotion of Access to Information Act (PAIA). He noted that the word “State” must be removed from (c).

The correction to (c) was noted by the SLAs.

Definition of “head of organ of state”
Ms Smuts said that Members would need to consider this, as well as the definition for “organ of state”. Only the Chapter 11 institutions should classify, unless another department opted in, and this was quite a justifiable compromise. She asked if it was likely that a municipality would seek to classify. No provincial department in Western Cape would wish to do so. She pointed out that the “valuable information” function had been retained in this Bill, against the wishes of the DA, and, in terms of clause 8, heads of department had to establish policies and categories for classified and valuable information. This raised the question of who those “organs of state” would be. She wondered if “executive organs of state” might not be better wording. She believed that the Bill should relate to national government departments, and wondered if the current wording was not too wide. She also enquired whether the references to “chief executive officer” in (c) should be removed.

The Chairperson asked the SLAs to advise whether there was any harm in keeping the current wording. At some stage municipalities might become powerful institutions in the country, and wish to classify.

Ms Booyse agreed that it was possible that an application might be made by the municipality, and it was necessary then to define the head of the organ of state of that institution, which was why the definition included all these categories.

Dr Oriani-Ambrosini said that a simple way would merely to be refer to section 239 of the Constitution However, “organ of state” in clause 3 would then have the meaning ascribed to it in clause 3, and anything excluded from here would not be able to use the opt-in clause.

Mr Landers said that this definition must be read together with the Applications Clause, clause 3(1), which said that provisions in regard to valuable information did apply to “all” organs of State. The comments about narrowing the scope of the Bill did not apply in relation to valuable information.

Ms Smuts said that she was aware of this. She reiterated that valuable information should not be covered under this Bill. She asked if the intelligence services had in fact doing monitoring, inspection and record keeping, up to now, in respect of all government departments, or only in national departments. If it was intended that they should function also in the provinces, then she wondered if there was sufficient capacity. She did not think that intelligence services should be performing these functions. She pointed out that the definition of “organ of state” encompassed all entities covered by the Public Finance Management Act and Municipal Finance Management Act. In practice, she doubted that there were sufficient personnel to inspect.

Mr M Sonto (ANC) said that the arrangement of the Bill was intended to cover the Republic and entities critical to the State. It was not possible to speak exclusively of municipalities, and he thought that the definition was sufficient. Questions of human and material resources to meet this responsibility were another matter.

Ms Smuts asked if provincial heads of departments should be included or excluded, and whether they were listed in the schedules of the Public Service Act.

The Chairperson said that this was discussed some time ago. This Bill was not saying any more than the Minimum Information Security Standards (MISS), and imposed no further obligations on authorities for protection of valuable information. He thought that “all organs of state” would be covered. He noted that nobody had a problem with this in the past.

Ms Smuts said that, with respect, this had not been discussed because Members had not addressed the definitions until the substantive matters were discussed. Mr Coetzee had raised a point in regard to delegation, but this was not directed specifically to the definitions. There had been no reason to raise queries on this before.

Mr Landers said that the ANC had no problems with this definition.

No changes were made to the definition.

Definition of “information”
The Chairperson noted that on page 12, the definition would be amended to read “information means any information contained in any document…” followed by the remainder of the wording>

Members agreed.

Definition of “information peddling”
The Chairperson noted, as an aside, that the concept of information peddling seemed to be wider spread than Dr Oriani-Ambrosini had assumed.

Mr Landers added that the Mail and Guardian had also acknowledged this phenomenon.

Definition of “intelligence”
Dr Oriani-Ambrosini asked if “intelligence operation” should not be defined. He understood this as including getting public information, drawing conclusions, and making assessments. However, this seemed to be very close to what was described as a “hostile activity” by a foreign intelligence operative. Gathering of public information to make an assessment should not be seen as an intelligence operation.

Ms A van Wyk (ANC) said that this was not the only intelligence information gathering that existed.

The Chairperson noted that it would be unreasonable to expect intelligence operatives to define what intelligence operations would encompass.

Members did not make any changes to this definition, and agreed that there was no need to define “intelligence operation”.

Definition of “national security”
The Chairperson drew attention to the agreed new definition, on page 16.

Dr Oriani-Ambrosini noted his objection to paragraph (b)(iv), and the entire notion of the state security matter.

Ms Smuts noted that the DA would object to this as well, when the vote was taken, in relation to the economic matters.

Definition of “organ of state”
Ms Smuts repeated her objections to the “organ of state” definition.

The Chairperson said that the organ of state was referred to in other ways as well.

Ms Smuts said that this was referring to organs of state set out in the Public Finance and Municipal Finance Management Acts, and she reiterated that the intelligence services had “no business” to go into their records.

The Chairperson said that every organ of state had some information that it needed to preserve. The majority of Members did not see a reason to change this. It was necessary to have references to organs of state in relation to the clauses dealing with valuable information. There was already a clear delimitation of the organs of state affected by other parts of the Bill.

Definition of “non state actor”
The Chairperson noted that Mr Maynier’s definition had been inserted.

Definition of “request”
On page 19, Members agreed to deletion of the definition of “request” and substitution with the definition copied from PAIA.

Definition of “security”
Ms Smuts noted that the definition of “security” must now be deleted, as there were now no references to this in the Bill.

Members agreed.

Definition of “state operations”
Ms Smuts questioned what this referred to.

Members agreed that “state operations” no longer appeared in the Bill and this definition must be deleted.

Definition of “state security matter”
Dr Oriani-Ambrosini noted the IFP proposal on this definition. Ideally, it should be deleted, but if that was not accepted then the words “which has been classified in terms of this Act” must be added to the end.

Ms Smuts supported this. Other legislation criminalised exposure of classified information in respect of the intelligence services. However, she did not agreed that disclosure of any other matter that had anything to do with the State Security Agency (the Agency) should be criminalised.

Mr Landers noted that the ANC did not agree with these objections.

Mr D Maynier (DA) agreed that ideally this definition should be deleted altogether. However, if the ANC did not agree to this, then, at the very least, it should be flagged because this definition would have a bearing on what Members would later discuss under clause 52, which related to prohibition of disclosure of a state security matter.

The Chairperson noted that none of the parties had proposed an alternative wording for this clause, but maintained simply that it should be deleted.

Ms Smuts said that some time ago she had indicated that the Intelligence Act of 2002 already contained an offence for disclosure of classified information. This Bill should not duplicate offences. At some stage, there seemed to be an indication from the ANC that it might be prepared to limit this clause, and if that was not done, then the clause flew in the face of the Bill’s intention to deal with classified information. At very minimum, the DA might be prepared to look at a compromise proposal that referred only to disclosure of classified information in relation to the Agency.

Definition of “valuable information”
The Chairperson drew attention to the acceptance of the new definition of “valuable information”.

Clauses 1(2) and (3)
These were agreed to.

Mr Landers then indicated that then ANC wished to put up a new proposal for a new subclause (4). This would read ”Despite section 5 of the PAIA, in the event of a conflict between the provisions of this Act and a provision of another Act that relates to access to information, the provisions of this Act will prevail”.

Ms Smuts noted that this proposal ousted the prevalence of PAIA. The DA would be opposed to this.

The Chairperson noted that this was not a new proposal.

Mr Swart also strongly expressed his opposition. He had thought that Members had agreed on the wording of this clause.

Dr Oriani-Ambrosini said that Members had agreed on the principle that whatever was given by PAIA would not be taken away by this Bill. It would be necessary to analyse this carefully to ensure that nothing was now being taken away. He would have preferred that the decision on which Act would prevail should be left to the court for interpretation, rather than giving imperative directions to it.

Ms Smuts said that the DA believed that PAIA would trump any other information Bill. PAIA, together with the Promotion of Administrative Justice Act and the Equality Act, had been passed to give effect to specific rights in the Constitution. She said that it was a sad day when a new law would seek expressly to do the exact opposite and prevail against PAIA. Section 32 of the Constitution promised access to information in the hands of the state, and that was the central demand of civil society and opposition parties. This was a direct attempt to counter that section, and Constitutional concerns were now at the fore.

Mr Swart agreed that this would take away from PAIA, and the ACDP would not support this proposal.

The Chairperson was surprised that Dr Oriani-Ambrosini would argue against the proposal, since he had previously argued that any Parliament had the right to make and change laws.

Dr Oriani-Ambrosini countered that what he had said – and he stood by this – was that he did not believe that section 5 of PAIA “immunised” that Act from being explicitly or implicitly amended. He agreed that it was possible for this Bill to repeal or amend PAIA. However, he would prefer that any arguments as to which of two conflicting Acts should prevail should be left to the court. He was very uncomfortable that the proposal gave instructions to a judge on resolution of issues of primacy of legislation.

The Chairperson summarised the provisions of PAIA. He thought that the concerns might arise from lack of clear understanding. The heading to the section in PAIA was “Other legislation prohibiting or restricting disclosure” and the section read that this Act would apply to the exclusion of any provision of other legislation (in other words, PAIA would prevail), against any other Act that prohibited disclosure or that was materially inconsistent with an object of PAIA.

Ms Smuts said that this Bill had been rewritten so that it was not materially inconsistent with PAIA, and there was an attempt in the re-drafting to take care of these issues.

The Chairperson agreed that this Bill was an inroad on access to information, but PAIA itself contained limitations on access to information. There were built-in limitations in the Constitutional provisions that provided for the existence of PAIA. This Bill was not suggesting that PAIA must be deleted. The question was whether it could stand on its own. The Bill had its own complications.

Mr Swart said that this debate had been held several times. The opposition parties maintained their strong views. He disagreed with the Chairperson’s contention that PAIA restricted access to information as it had a very specific override. It was regrettable that the ANC had now backtracked and was attempting to take away from PAIA. He expressed the view that it was “disgraceful” that parties were now, at this late stage, attempting to go back on earlier agreements.

The Chairperson said that the points had been made.

Mr Swart did not think it needed do be debated further.

The Chairperson said that Mr Swart’s point was legally incorrect. PAIA contained clauses saying that certain types of information could not be obtained.

Mr Swart pointed out that these were a limited restriction, with an override.

Mr Swart then asked if, as a matter of principle, the Committee would be reopening debate on issues already agreed to. In particular, he then asked if there was going to be a debate on the public interest defence.

The Chairperson responded that he would like Members to continue going through the Bill.

Ms Smuts pointed out that section 32(2) of the Constitution said that it was possible to limit access to information in the hands of state, on financial and economic grounds. The limitations clause would apply to this. However, she pointed out that all other limitations in PAIA related to personal information, and apart from those limited cases, PAIA prevailed. Section 41 of PAIA was relevant for the purposes of this Bill. If that was followed, then this Bill would not be inconsistent with PAIA. The Committee had been very close to achieving a proper intelligence classification law. It had spent an enormous amount of time in trying to align this Bill with PAIA, to the point where it had determined that all requests must go the PAIA route, even where classified information was involved, through to an appeal to court on the merits. She said that it was both unsatisfactory and disappointing that the Committee had not concluded this in the right way, but instead was now faced with another proposal.

Clause 2 Objects of the Act
Dr Oriani-Ambrosini thought that the word “objects” (of the Act) should be “objectives”.

His view did not find support from other Members.

The Chairperson noted that the DA had requested the former clause 2(j) should be reinserted.

Ms Smuts said that, especially in view of what had just happened in the Committee, it was vital to re-insert the requirement for harmonisation with PAIA.

Ms Smuts also noted that under subclause 2(h) the wording had been amended, but she asked whether the words “requests for access to information and status review” should not be used. There had been some discussion on who would apply for a status review. She noted that the word “designated” also still appeared and should be deleted.

Ms Booyse noted that on page 50, a new heading appeared for “request for access to information and status review”.

Dr Oriani-Ambrosini said that there was an automatic request and he did not think there was a problem.

Ms Smuts agreed, on reflection, that there would not be a problem with this.

Mr Landers indicated that the ANC would not be opposed to including the original subclause (j).

Members agreed to accept new subclauses (k) and (l).

Clause 3 Application of the Act
Dr Oriani-Ambrosini suggested that, in clause 3(2)(b), on page 36, the phrase “may be assigned” should be replaced with “may be made applicable”. He explained that it was generally accepted that the administration of an Act was “assigned”, when there was no question of expanding the scope or application, but the phrase “made applicable” was more appropriate when the actions could expand the scope of application of the legislation.

Members agreed and the Chairperson asked the SLAs to effect this change.

Clauses 4 and 5
Members agreed to these clauses.

Clause 6
The Chairperson noted the amendments, and Members agreed.

Clauses 7 and 8
Ms Smuts said that these two clauses had not been discussed in any detail before this meeting. To some degree they were limited by the now-restricted application clause. However, she drew attention again to an opinion raised by Adv van Rooyen that these clauses remained over-broad. This was the same argument as had been applied in the case of Dawood v Minister of Home Affairs in respect of the same criteria as appeared in clause 13. The wording that the Minister may prescribe “broad categories and sub-categories” was too broad and vague.

In respect of clause 8, she firstly noted that the word “alteration” should be added to the phrase “loss, destruction and unlawful disclosure”, in clause 8(1). Secondly, she noted that, at the very minimum, the words “where applicable” must also be inserted at the beginning of this clause. As the Bill stood, it would apply to the police, defence and intelligence structures, but other organs of state could also opt in. Thirdly, she questioned whether the reference to “classifying” and “declassifying” were correctly placed in this clause. Not every organ of state would be writing policies, directives and categories, and she could not, in any event, envisage a situation where this would be done.

Dr Oriani-Ambrosini shared the concerns of Ms Smuts. However, he also wished to add another consideration. Clause 7 essentially was giving the Minister the power to make regulations. For the sake of avoiding any confusion, he suggested that the power to do so should appear not in this clause, but at the bottom of clause 48. He recorded that clause 8 was dealing with non-binding guidelines. Anything that related to regulations should be placed under the regulations clause.

Ms Smuts agreed that this would be good way to escape from a Constitutional problem.

Mr Landers agreed that the powers to prescribe would normally be stated in a regulations clause, and agreed that anything in clause 7 that noted “prescribe” should be moved. That would leave only subclause 7(2).

Ms Smuts suggested that this could also be moved. However, on checking, she pointed out that this was essentially a duplication of what was already in that clause.

The Chairperson noted Members’ agreement and asked the SLAs to move these clauses to the regulations clause. He asked if there should be reference made to a time period.

Mr Landers agreed that this should also be included under the Regulations clause.

The Chairperson asked if the headings on page 28 should remain. would remain.

Mr Landers thought that the main heading for the chapter could remain, because it referred to the content of clause 8(3), followed by the subheading for clause 8 should appear.

Dr Oriani-Ambrosini and Mr Landers both made proposals on, and agreed that clause 8(3) should be amended to read “not inconsistent with the national information security standards prescribed in terms of section 57”

The Chairperson asked the SLAs to retain the heading of Chapter 3, and the subheading of clause 8. The content of clause 7 should be moved to clause 57, to form new subclauses from (n).

Clauses 9 and 10
Ms Smut noted the DA’s opposition to this Chapter. The DA thought that valuable information should not be included in this Bill.

Chapter 6: Clauses 11 and 12
Members agreed to these clauses.

Clause 13
Ms Smuts noted that Members still needed to decide on the wording. There were several issues. Dr Oriani-Ambrosini had suggested that, in respect of Top Secret, the levels for classification should not read “serious irreparable” and some other wording should be found. This appeared in the Committee Proposals document, on pages 2 and 3. She agreed with Dr Oriani-Ambrosini that if this phrase was used, then it should read “serious and irreparable”. Otherwise there would be a conflict with the “serious” harm mentioned in respect of the Confidential level. Another option might be merely to use “irreparable” alone.

Mr Swart suggested that “grave” demonstrable harm had been proposed by the IFP. There had been debate around the phrase “serious or irreparable harm”. One view was that wording this in the alternative could cause a conflict with the reference to “serious” alone.

Ms Booyse noted that in respect of clause 13(3)(a) there had been a suggestion in relation to “grave” harm. The options listed were now “grave or irreparable”, “serious and irreparable” and “irreparable”.

Mr Landers said that he did not see much difference between them.

Ms Smuts then said that this wording issue must be seen separately from the other issues. There was also a Constitutional argument in respect of this clause. The opinion of Adv van Rooyen had been to the effect that each of the levels had been overbroad because they made reference to damage to international relations and personal safety, but did not link those directly to the “national security”. This meant that the prejudice, threat of severing relations, or jeopardy could be considered in isolation of issues of national security. These matters must also be considered against the excellent clause that set out the conditions for classification.

Mr Landers and Ms Smuts made inaudible comments on the thresholds.

The Chairperson pointed out that when Adv van Rooyen gave his opinion, he had set out how he thought the clause should be worded.

Ms Smuts noted that his proposal had been to delete all the references to international relations and two of the items dealing with personal safety. However, the Committee had been sidetracked on issues of “security” and the remainder of the proposals were not discussed. She had understood that the ANC had only accepted the parts of the proposal that (mistakenly) referred to “security” but the ANC had indicated on the previous Friday that it would agreed to delete these references, which were clearly inserted in error.

Mr Landers clarified that the ANC in fact agreed to look at the remainder of Adv van Rooyen’s proposal, save for the inclusion of the reference to “security”. It seemed that the parties might have been speaking at cross purposes at the last meeting.

Ms Smuts was pleased to hear that the ANC was prepared to look at Adv van Rooyen’s proposal again. She had thought that the agreement was merely that “security” would be removed, and the DA’s concession was that if this was done, then the DA would drop its suggestions on the Objects Clause.

The Chairperson asked the ANC to submit a written proposal for clause 13.

Mr Landers said that this proposal set out what was in the document.

Dr Oriani-Ambrosini asked whether there was any need for subclause (4), which was essentially telling the classifying authority to have regard to the regulations, and respect the law.

The Chairperson agreed that subclause (4) did not appear in the original version.

Dr Oriani-Ambrosini noted that although clause 8 referred to “policies and directives”, this subclause suddenly introduced the concept of “guidelines”.

This clause was flagged for further discussion after the ANC had submitted its proposals. The other parties’ submissions on the clause were already included in the Committee Proposals document.

Clause 14
Ms Smuts suggested that this whole clause should be worded as “subject to section 3”.

Dr O A suggested that another possibility was to use “relevant” or “where applicable”

Members agree to insert “Subject to section 3” at the beginning of clause 14(1).

Dr Oriani-Ambrosini asked if the wording should also read “any relevant head of an organ of state”.

The Chairperson, supported by other Members, thought this was not necessary. The intention was clear.

Clause 15
Dr Oriani-Ambrosini suggested that clause 15(1) should read “the decision to classify information must be based solely on..” He noted that the original wording of this clause had referred to “conditions set out in this section” rather than the current wording of “conditions set out in this Act. The conditions would be binding. His concern was that “this Act” would be interpreted as meaning “this Act and the regulations” and this would open the door for regulations to specify more conditions.

The Chairperson noted that Dr Oriani-Ambrosini had requested the opportunity to discuss the proposals in the IFP Document with the ANC, and that had been granted to him. This was not to be seen as an opportunity also for him to raise and argue every point in the IFP document once again. Other Members had expressed no support for this view.

Mr Landers noted formally that the ANC had heard Dr Oriani-Ambrosini on this point, but did not find the motivation convincing. He pointed out that “conditions” were contained elsewhere in the Act – for instance there were conditions set for the maximum protection periods, so it was not just the conditions in clause 15 that must be taken into consideration.

Members did not support the change suggested by Dr Oriani-Ambrosini.

Dr Oriani-Ambrosini then asked for consideration of his earlier request to have some wording removed from clause 15(2)(i).

The Chairperson noted that this had been inserted for consideration into the Committee Proposals document, but had been rejected. The other parties had agreed to the wording reflected on this page – in other words, without the wording that Dr Oriani-Ambrosini had requested should be included.

Clause 21
Members agreed to this clause, still set out as clause 21, on page 43.

Clause 16
The Chairperson noted that Members had already agreed that regulations be included in clause 57(1)(m) so he did not think that the DA suggestion to insert “in the prescribed manner” was needed.

Mr Landers said that it could not do any harm to insert this, perhaps after “SAPS or the Agency”.

Mr Swart corrected him that when inserted, the clause should end “a member of the South African Police Service or the Agency, to be dealt with in the prescribed manner”.

Members agreed, and the Chairperson asked the SLAs to effect this change.

Clause 17
Dr Oriani-Ambrosini wanted to record his objection to this clause.

Clause 18
Ms Smuts said that Members needed to decide what Chapter 7 related to, because although the heading still read as “Criteria for continued classification of state information”, all that was left in the Chapter that dealt with classified information was clause 19, which dealt with regular reviews of classified information. Ms Smuts also noted that the conditions should not be worded as “set out in this Chapter” but “set out in this Act” since the conditions had to comply with clauses 13 and 15, not with this Chapter.

Mr Dennis Dlomo, Advisor, Ministry of State Security, explained that his office had worked with the SLAs, and had earlier produced a one-page document that sought to provide a structure of the Bill. The “Contents” page was not amended.

Mr Landers pointed out that the Classification Review Panel (the Panel) was still referred to in this chapter.

Mr Landers said that there was another problem with clause 18. On page 45, there was a reference, when dealing with the maximum protection periods, to “criteria contained in Chapter 8” . However, as the footnote indicated, there were in fact no criteria in that chapter. He added that clauses 13 and 15 in fact set out “conditions” and not “criteria”.

The Chairperson said that the footnote was drawing the attention of the Committee to the fact that they must deal with this matter when Chapter 8 was finalised.

Ms Smuts said that Chapter 7 referred to the 10 year review, the regular review, and request for access under PAIA. She suggested that maybe everything to do with the Panel ought to appear under another, separate chapter.

Ms Booyse said that on page 48, in the new clause 19(2), the word “criteria’ had been replaced with “conditions”.

Ms Smuts still asked why there should remain a reference to the “Chapter” rather than “the Act”.

Dr Oriani-Ambrosini said he had difficulty with this clause. He had suggested that additional paragraphs be added, so that there was compliance with clauses 13 and 15. However, the real question was what this Chapter sought to do. The Bill said that documents could not remain classified for longer than 20 years, unless there was a specific reason to do so. He wondered if this was in fact imposing a higher threshold than was contained in clauses 13 and 15. He also pointed out that here, the words “crucial to the safeguarding of national security” appeared, instead of the qualifiers of “demonstrable harm” or “serious” or “grave” that had been used in clause 13 (still to be finally decided upon). If the threshold in clause 18 was higher, then it shed more light on clause 13, which might not be necessary. If the conditions for classification still existed, then the question was whether there was any need to have another test. After 20 years, the Minister would, in his view, simply have to provide a reason why the same conditions still applied. He remained concerned that this clause would result in another standard.

Mr Landers said that there was nothing that set down “conditions” for the classification of information. If the head of the organ of state wanted the information to remain classified he must classify it with regard to the conditions in clause 15.

Ms Smuts agreed that this did seem to set a higher threshold. She asked what “crucial” meant.

Mr Landers disagreed that there was any difference, saying that the conditions in clause 15 would still have to apply at all times.

Ms Smuts, repeating an earlier argument, still thought that there should be higher thresholds if it was sought to classify something beyond a period of 20 years. She suggested that perhaps “significant demonstrable damage to the national security” should be inserted.

Dr Oriani-Ambrosini said that the logical stance was that if there was a level at which documents could be classified, and this still existed, matters should still have to be continue being classified. This clause was dealing with an extraordinary situation. He thought that this had nothing to do with changing the threshold but having an independent assessment of whether the conditions were still in existence, and still justified. He thought that the wording could refer simply to the fact that information should not remain classified for longer than 20 years unless it was certified, to the satisfaction of the Classification Review Panel, that the conditions for classification still applied or subsisted.

Ms Smuts agreed that this could solve the problem, and the subclauses (a) to (c) could be removed, as they appeared on page 46.

Mr Landers suggested that the word “criteria” should read “conditions”, because clause 15 referred to “conditions”. There should be a specific reference to “conditions for classification set out in sections 13 and 15”

The Chairperson asked the SLAs to effect those changes.

Clause 19
The Chairperson noted that the heading may need to be changed.

Ms Smuts said that the clause also contained reference to the Panel and agreed that a new heading was needed. She suggested that perhaps the heading should incorporate reviews, regular reviews, and status reviews. She also made the point that the public did not generally realise that this Bill was also providing for massive declassification.

The Chairperson suggested that the clauses dealing with the Panel should be moved across to a separate portion of the Bill.

Ms van Wyk thought that Members should “clean up” the Bill at a later stage, and was worried about doing this on an arbitrary basis now.

The Chairperson reiterated that the Panel clauses should be put under a separate section or chapter. A heading would be needed for the request for access to information. Other matters could be fitted in elsewhere.

Mr Landers suggested that on page 52, a chapter could be created to deal with the Panel. The rest of the headings would follow. Pages 46 to 51 would remain to be dealt with under this Chapter. Then perhaps Ms van Wyk’s suggestion could be followed, as it would by that stage be easier to decide on a heading.

The Chairperson asked the SLAs to create a new chapter, with a separate heading, for “Classification Review Panel”.

Dr Oriani-Ambrosini had further concerns. Clause 19(1)(b) created an obligation on an organ of state to do something, but the Bill did not provide for a sanction in the event that this was not done. He had proposed inclusion of the words “failing which, it shall be deemed that the classification lapse” but the ANC had not agreed to that, but had indicated that it might be prepared to look at another proposal. He reiterated the point that if an official could not be bothered to attend to this, then he did not believe that the information should be kept secret.

The Chairperson noted that a new offence had been inserted (as yet unnumbered, appearing on page 67). He thought that a failure to deal with this would be covered by “a head of an organ of state who, wilfully or in a grossly negligent manner, fails to comply with the provisions of this Act…”.

Mr Landers agreed. He added that clause 19 also obliged the head of the organ of state to present reports to the Minister, the Panel and Parliament, and those reports must be published. This further reduced the possibility that this might not be done.

Ms Smuts said that these were good answers, but there was still a danger that reviews would not take place and prosecutions would not be instituted. She pointed out the experience under PAIA was that some departments gave “mute refusals” and simply failed to comply. She supported Dr Oriani-Ambrosini’s suggestions. The DA, in its earliest submissions, had suggested that all information classified under the MISS since 1996 should be declassified regularly, failing which the classifications should automatically lapse. This was an option that the Committee should consider.

No final decision was taken on this point.

Ms Smuts further pointed out that the reference should be to “sections 13 and 15” not to “this chapter.

Clause 20
The Chairperson asked what number would be assigned to the clause appearing on page 50.

Ms Booyse explained that the numbering – as clause 20 – appeared on the previous page.

Dr Oriani-Ambrosini raised a query on subclause (6). He thought that Members had agreed to wording of “within a reasonable period, to be no longer than 60 days”.

The Chairperson pointed out that it was Dr Oriani-Ambrosini had insisted upon including “a reasonable time”.

Members did not agree with the proposal, and preferred to use “a reasonable time”, as previously agreed.

New clauses 22 to 31 on page 52
Dr Oriani-Ambrosini said that although he had agreed to the text, he still wanted to note that he would have liked to insert additional specifications on the powers of the Panel, under clause 23, and did not agree with the fact that these were not inserted.

This point was noted.

Clause 32
Members referred to the Committee Proposals document, on page 5. Two new subclauses (3) and (4) had been added.

Dr Oriani-Ambrosini thought that (3) could be more elegantly phrased as “The head of the organ of state must report to the Panel all the information in its possession which has been declassified during the previous year”.

Mr Landers said that there was a long debate about this clause already. The Members present had agreed to this wording, and he made a counter-proposal that it simply be carried across, as stated in the Committee Proposals document, to the Working Document.

The Chairperson, with the agreement of the majority of Members, asked the SLAs to effect that change.

Dr Oriani-Ambrosini said that the last phrase: “declassified information may be accessed in the prescribed manner” was meaningless.

Ms Booyse explained that only clauses (3) and (4) were additional to what was already in the Working Document. These would be inserted, prior to the clause numbered (3) in the Working Document, at page 59. The remaining subclauses would then be renumbered.

Clause 33
Ms Smuts suggested that it was not necessary to include a reference to “a member of the public or a non-governmental organisation or entity”, but that instead the words “any person” should be used.

Other Members agreed.

Mr Landers, and Ms Smuts, indicated that they were not sure what lines 1 and 2 were trying to say.

Dr Oriani-Ambrosini suggested that the words “declassification or downgrading” should be used, instead of “lifting of the status”.

Ms Smuts responded that declassification was not at issue.

Dr Oriani-Ambrosini said that a person may have a Confidential, but not a Top Secret security clearance. That person might have a legitimate interest in the information being downgraded, so that he could then access it.

Mr Landers asked why a person would request downgrading, because the access would not automatically be gained.

The Chairperson asked if this was referring to the head of an organ of State dealing with the request


Mr Landers said that it would, but the question was still what “lifting of the status of state information” meant. Although Dr Oriani-Ambrosini suggested that this must mean downgrading, it would not make sense for a person to request downgrading because she or he might still not have access, and it would not then make sense to go through the whole appeal procedure. If someone requested complete declassification, and the request was denied, then it would make sense to proceed with the appeal.

Mr B Fihla (ANC) asked if the time period for which a document may be classified could be reduced by a reclassification.

The Chairperson said that this referred to a document classified for a considerable period.

Mr Sonto proposed that the portion of the clause dealing with “a request for declassification” should remain, but the remainder of the references to “lifting of the status of” should be left out.

Dr Oriani-Ambrosini said that in several countries, it might be that the police wanted to access information that the intelligence operatives did not wish to give.

Mr Sonto raised a point or order, asking that his proposal should be decided upon before other points were raised.

The Chairperson said that this point was well taken. However, there were other Members who wanted to be heard on this point, and he ruled that they could state their views.

Dr Oriani-Ambrosini said that he too was addressing Mr Sonto’s proposal. He, however, wanted to motivate why downgrading or reclassification may be needed. There could be tensions between different organs of state, which hinged on different levels of access – for instance, police may not have Top Secret security clearance, whereas intelligence officials may, and those with the lower-level security clearances may have an interest in having information downgraded.

The Chairperson noted that this was a repetition of the point made previously.

Mr D Stubbe (DA) made the point that if there was a request that information be made available, the requestor would not know what the status of classification was. This clause should only refer to “declassification”.

Mr Swart did not understand the context of a request for declassification. He asked if the request for declassification was implied in the request for access to classified information.

Mr Landers answered Mr Swart that if a person opened his emails and found that someone had sent him a Top Secret document, read the document, and then believed that it should not be Top Secret, he could request the document to be declassified. This was what the clause sought to achieve, as it was providing for an appeal procedure.

Ms Smuts said that in terms of the new clause (that was set out, without numbering, on page 50) the request for access would automatically trigger review of the classification.

The Chairperson asked Members also to consider clause 34, relating to the application to Court. A person aggrieved by a decision about a request may apply to Court for the appropriate relief, after exhausting the internal appeal procedure.

Mr Swart asked if the Bill, in any other place, dealt with a request for declassification, other than on page 50. This seemed to deal with an appeal, but not the original request.

The Chairperson summarised that Mr Swart’s point was that there was no sense in providing an appeal procedure if there was nothing to appeal against.

Mr Swart said that if it was only placed earlier, then there was no section dealing with the request for declassification.

Mr M Nchabaleng (ANC) thought that the Bill might have confused request and appeal.

Ms Smuts said that everything would happen under PAIA, and that provided for an internal appeal.

Mr Landers said that Mr Swart was raising an important point. The appeal process should be included as part of clause 20, together with the application to court, because that did deal with access to classified information. If that request was denied, then the appeal procedure would kick in. The crucial point was that nowhere was provision made simply to apply for declassification, unless the criteria set out in clause 20 were met. He envisaged a situation where, even without these criteria, a person should be able to apply for declassification.

Mr Dlomo recapped the process. When the Committee was considering the Bill it had agreed that access would be in terms of PAIA. That provided for three broad categories of information: namely, information that must be given, may be given, or should be refused. If the information was classified, then the automatic review of the status of that information would kick in, from the entry point of what was set out in respect of the appeal. If the automatic review did not result in declassification, then the requestor would be informed of the negative response to the request because the information was classified. He agreed that perhaps the Bill did not set out the process clearly enough.

Mr Swart said that he read clause 20 as encompassing two processes. The problem was that subclause (6) should be moved to the top of the clause. That decision should include the appeal process under clause 34. However, where there was an urgent application, when the PAIA section 46 override would apply, that was another internal process that could frustrate a person attempting to reach the court.

Ms Smuts said that the “gratis review” (automatically occurring) would be done in terms of subclause (6), and this would be done by the head of the organ of state. There was still the step of the internal appeal.

The Chairperson asked if it would not make sense simply to use the words “any person refused access for information in terms of this Act may appeal to the relevant Minister”.

Mr Swart said that this would have to be made subject to clause 20(3)(a), otherwise it would be necessary to follow all the internal appeal procedures before approaching the court. In terms of clause 20(3) the head of the organ of state must grant access if there was evidence of a substantial contravention of the law, failure to apply the law, or an imminent and serious public safety or environmental risk. He questioned, however, what would happen if the head of the organ of state disputed that there was urgency under 20(3)(a)(ii), because it would then seem necessary still to go through all internal appeals. Clause 34 stated that an appeal could be made after a person had exhausted all internal mechanisms. There seemed to be a conflict.

Mr Dlomo said there were two appeal processes already built in. The first related to the imminent danger – using the example of Koeberg about to explode. That formed part of the section 46 override that was imported from PAIA. The proposal of the Chairperson would be acceptable if that was excluded, and he did not think that there would then be any contradictions. The Bill already set out how a court should deal with the procedure. The second appeal process was similar to the normal PAIA process, in that a person would have to go through all the internal processes before approaching the court. There would only be confusion if those processes were not reconciled.

The Chairperson said that this was similar to Mr Swart’s concern. He amended his proposal to read “Subject to section 20(3), any person refused access for information in terms of this Act may appeal to the relevant Minister”.

Mr Landers said that unless the criteria were shown, the person could not then request declassification.

Mr Swart indicated that this was an attempt to exclude the appeal mechanisms set out in clause 20(3) to (5).

Dr Oriani-Ambrosini suggested that instead of using the words “subject to”, it would be preferable to use “notwithstanding the section on appeals, the court may condone…”

The Chairperson said that clauses 20(4) to (6) could not apply to the appeal procedure. Members had agreed that in an urgent situation, the normal procedure should not apply so that it would not be necessary first to approach the Minister. However, other appeals would not follow clause 20, but would follow clause 33, set out on page 59.

Dr Oriani-Ambrosini suggested that in this case, “and non compliance with section 33” should be added into clause 20(5), before the words “on good cause shown”. That would allow the court to decide whether it was appropriate to follow this procedure.

He agreed that the Chairperson’s amended proposal should then be added to clause 33, and he suggested also that a 30-day time period should be stated.

Clause 34
The Chairperson asked that the SLAs should insert wording under clause 34 that would exclude the appeal procedure set out in clause 20 (which applied to urgent matters).

The meeting was adjourned.