Protection of State Information Bill: Working Document 25

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

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

The State Law Advisors presented a new Working Document 25 of the Protection of State Information Bill (the Bill) and took Members through the changes effected, following agreements at the previous meeting. The new regulations clause, clause 54, which now incorporated the provisions previously in clause 7, was explained, and it was noted that although the formatting of the former clause 7(2) had been changed, there was no substantial difference to the content. Chapter 7 had been renumbered as chapter 6, the heading had been altered, and a new chapter Ms Booyse noted that Chapter 7 was now renumbered as Chapter 6 and a new chapter was inserted dealing with the Classification Review Panel. Although new wording was now provided for clause 33, Members provided further amendments to answer the concerns around direct access to courts without having to follow all internal mechanisms, in urgent cases.

Members continued to deliberate on the Bill, on a clause-by-clause basis, from clause 34. There was substantial discussion on the public interest defence. The DA had proposed alternative wording for clause 44 taking as the point of departure the fact that disclosure would generally be criminalised, save for five exceptional circumstances. The ACDP had proposed a limited public interest defence and the IFP had also proposed that a person charged should be allowed to raise an exculpatory defence that the disclosure would reveal a matter of such public interest or importance that it would outweigh the state interest that it remain classified. The ANC noted that it could not find favour with these proposals, and said that the DA proposal seemed to seek to protect the media and journalists. The ANC referred to the public submissions made by the South African National Editors Forum during deliberations on the Protection of Personal Information Bill, to the effect that journalists had no lesser, and no greater powers than the ordinary individual. The ANC stressed that the Bill already provided processes under which people would be able to access information legally, including urgent applications where applicable, and that these could not be seen as an unjustified restriction on media freedom. The DA and ACDP stressed that the proposals would apply to any citizen, and represented a defence, not exemption from prosecution, and the courts would make the decision, weighing up competing interests within narrow confines. The DA and IFP also stressed that if certain information could not be classified, specifically if it attempted to cover up wrongdoing, then there was no reason why it should not be revealed. The opposition parties reiterated their concerns that, particularly since similar provisions had been struck down as unconstitutional in Ontario, there was a likelihood that the Bill would face a similar challenge should this defence not be included. The Chairperson noted that there were clearly two opposing positions, that neither argument had swayed the other, and that it would serve no purpose for this to be debated further.

Members also raised queries on whether the custodial sentence in clause 41 needed to be aligned with the National Archives and Records Services of South Africa Act, but did not change it. The option of a fine was inserted in clause 44. Although the DA suggested that a new subclause should be added to clause 46, to deal with national intelligence structures who themselves provided false information, this did not find favour with other Members. The DA and ACDP had proposed that clause 49 be deleted altogether, but the IFP proposed, and other parties accepted, that the definition of “state security matter” be changed to read “includes any matter, which has been classified in terms of this Act, dealt with by the Agency…”, which would then limit the application of this clause. The IFP raised once again the public domain defence, and urged Members to include it in the Bill, but the other Members considered themselves bound by the court’s ruling on this point in the Independent Newspapers case.

Members then discussed, once again, the wording of clause 13, as there had been some misunderstanding when it was previously debated. All parties agreed that the more limited interpretation was preferred.

Clauses 13(1), (2)(a) and (3)(a) would delete any references to international relations, and the clauses dealing with commercial information (previously scrapped) and personal safety or security would also be deleted. Members also agreed that there was no reason to keep clause 13(4), which retained the old reference to “guidelines”.

There was also a further debate on the proposals for clause 1(4) that the ANC had made on the previous day. The ANC stressed that the important reference here was “a provision of another Act of Parliament that regulates access to classified information”, and that the clause tried to ensure that if there was conflict between PAIA, this Bill and another Act, specifically in relation to classified information, this Bill should prevail. The IFP proposal that the words “In respect of classified information” be inserted at the start of the subclause was accepted. The ACDP, while understanding the rationale for this, asked for time to consider whether there was likely to be a conflict with section 41 of PAIA, and the DA asked why it was necessary still to refer to section 5 of PAIA if the ANC was satisfied that the Bill would not conflict with this section. This would be further debated.

Meeting report

Protection of State Information Bill: Working Document 25 and Committee Proposals 25
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, noted the changes on page 3 of the Working document 25 on the Protection of State Information Bill (the Bill). The definitions on page 8 or categorisation of state information had the references to “designated” removed, and on page 10 the definition of foreign state had been corrected. On page 11 paragraph (c) of the definition of hostile activity had been changed. On page 12, words had been inserted into the definition of “information”. On page 19, the definition of ‘security” had been removed, and on page 20 the definition of “state operations” had been deleted. On page 21 the new proposal of the ANC was reflected as a new Clause 1(4). On page 26 the amendment to clause 3(2)(b) was effected, and on page 28 the original heading for Chapter 3 had been deleted, leaving only the sub-heading “Policies and Procedures”.  Clause 7 had been deleted by moving it to the regulation section.

The Chairperson asked the State Law Advisors (SLAs) to take Members through the regulations clause, which was set out on page 92, newly numbered as clause 54(4).

Ms Booyse noted that the wording that was originally in clause 7(2) was now included as part of the Roman-numbered sub-paragraphs. New subclause (5) to (7) were also inserted. The previous subclauses 57(4) and (5) were renumbered as clause 57(8) and (9). Any differences between the wording were indicated by bracketing and bold printing, but this was in relation to the previous clause 7(2), which now effectively appeared as 57(4)(c). However, there had been no significant change to the wording.

Ms M Smuts (DA) noted that this was said it was correctly captured, but the DA still believed that clause 54(4)(a) remained too broad. She wondered if the current clause 8 should not also be moved.

Mr Swart agreed that it was correctly reflected. However, the originally wording had referred to “a reasonable period” whereas clause 54(4) now referred to “12 months”, which was likely to be better. He wondered if there was any potential for an offence also under (4). The penalty provision set out under (9) referred specifically to subsection (1), and he wondered if there was a need also to have it apply to subclauses (4) to (7).

Ms Smuts thought that the fewer references to this, the better.

The Chairperson said that this was a fine-sounding phrase but had no legal significance. Members needed to be sure that there was nothing that had to be deleted.

Ms Smuts wondered if it was correct to delegate offence-making powers. She thought that aspects under subclause (1) were more suitably covered in this, as the clauses just added were broader and covered different aspects.

The Chairperson said that the proposition to leave this wording as it was seemed to be acceptable.

Members agreed that this was captured correctly.

Ms Booyse noted that on page 30, in clause 8(1), the words “where applicable” and “alteration” had been inserted. She had changed around the order of the phrase, to make it consistent with other sections, and this now read “protection against alteration, destruction and loss”.  There were further changes in clauses 8(2) and (3).

Mr L Landers (ANC) said that clause 8(2) still referred to regulations “contemplated under section 7” and this must be corrected to read “regulations under section 54(4)”.

Ms Booyse stressed that the subclause had to be mentioned because it referred specifically to policies, directives and categories.

Mr M Sonto (ANC) asked what the motivation was for the removal of “unlawful disclosure”.

The Chairperson explained that this had to do with the distinction between valuable and sensitive information.

Ms Booyse pointed out a minor amendment on page 34, correcting the numbering of the chapters. On page 38, the newly-numbered clause 14(1) started with “Subject to section 3, any head of an organ of state”. The next amendment was on page 44, under clause 16, where “to be dealt with in the prescribed manner” had been inserted. On page 46, words were deleted from clause 18, and words had been inserted to the effect that the conditions for classification set out in section 13 or 15 still applied.

Mr Swart questioned whether the word “section 13 or 15” was consistent with the previous use of “sections 13 and 15” (using the plural).

The Chairperson pointed out that sometimes “or” and “and” were used interchangeably.

Ms Booyse said that she would check for consistency. The usual drafting style was to use “section 13 or 15”.

Ms Smuts made a comment that this referred to “the criteria and conditions in section 13 or 15”.

Ms Booyse noted that Chapter 7 was now renumbered as Chapter 6.  The heading was taken out, and the proposed new heading would read “Regular reviews, Requests for access to classified information, and Status Reviews”.

Members agreed to this.

Ms Booyse continued that on page 57 a new chapter was inserted, dealing with the Classification Review Panel (the Panel). On page 58 the comments around reporting were captured, by inserting new subclauses 31(3) and (4), and the other subclauses had been renumbered. On page 60, in clause 32, the first part of (1) had been deleted, and instead a new provision was inserted reading: “any person who has been refused access to information in terms of this Act may appeal to the relevant Minister”.

Mr Landers said that he had some concerns as to why the 90-day period was noted in clause 32(3). He noted that PAIA generally referred to 30-day periods (and sometimes to a 21-day period) and he asked why 90 days was noted.

Ms Booyse answered that the Brummer v Minister of Social Development case had dealt with time periods, and the Constitutional Court had given an order that this should be extended to 180 days. That amendment, however, had not yet been enacted. The 90-days was the period mentioned in PAIA, at section 78

Ms Smuts said that this judgment was in favour of the applicant.

Ms Booyse noted that on page 61, a new clause 33 appeared, and here there were two proposals. The first was to provide for someone who was making application under clause 20(3). The clause now provided that the requestor would be exempted. The second proposal was that a requestor may apply directly to the court without having exhausted the internal appeal procedure contemplated in clause 32.

The Chairperson said that this did not answer Mr Swart’s concern.

Mr Swart suggested that the second option should be reworded, to read: “Notwithstanding subsection (1) a requestor may apply directly to a court for appropriate relief, as contemplated in section 20(3)”. There might be another provision somewhere that might allow court access, so this option should be linked to clause 20(3) to prevent another mechanism bypassing the internal appeal mechanism.

The Chairperson thought that this was already in the Bill, on page 51, under clause 20(5) which provided that a requestor could apply directly to the court if the matter was urgent. In this case, the requestor would not normally have to follow the appeal process via the Minister. Page 61, on the other hand, was dealing with a requestor who had gone through the process and had appealed to the Minister. Unless he had done so, he could not normally go to Court. That was why the reference to “Notwithstanding subsection (1)” and “as contemplated in section 20” He asked if there was a need to make reference also to the subsections. The words “without having exhausted the internal appeal procedure” could be deleted.

Ms Booyse thought it was necessary, because clause 20(3) made out the case for urgency.

Members agreed on the second option, as suggested.

Mr Swart agreed that there must be reference to clause 20 but wondered if it was not safer to use a reference to clauses 20(3) (4) and (5), because this would cover “relief”.

The Chairperson thought that it was only necessary to refer to “section 20”.

Mr Swart disagreed, saying that if this was done, it would exclude the normal appeal mechanisms.

The Chairperson said that perhaps the words “urgent relief” should be used, instead of “appropriate relief”.

Members agreed to use “urgent relief contemplated in section 20”.

Ms Booyse finally noted that on page 96 of the Working Draft, the deletion of clause 56(2) was now reflected.

Continuation of Clause by Clause deliberations, from page 62

The Chairperson pointed out that some of the clause numbers had changed from the previous Working Document, and the numbering as reflected in the latest Working Document should be used. He asked Members to raise any specific problems as the consideration of the clauses proceeded.

Mr Landers asked whether the provisions in square brackets and bold would be removed from the document.

The Chairperson noted that the document shown on the screen would be corrected as the meeting proceeded, and words that were to be deleted would actually be removed. Soon, Members would get a “completely clean” copy.

Mr Swart pointed out that the Working Document would still show everything that had been added or deleted. The “cleaned” copy would not track those changes.

Clause 34, 35 and 36
Members agreed that on these clauses.

Chapter 11: offences and penalties
The Chairperson noted that new offence had been captured on page 68, in relation to the head of the organ of state who may fail to comply with the provisions of this Act.

Mr Landers agreed that the ANC was in favour of this.

Ms Smuts said that the DA wanted this provision, but perhaps it should be combined with other offences.

Mr Landers noted that a person must know that if he failed to review or failed to report, this would be sanctioned.

Mr Swart said that the reference to “the provisions of this Act” would include the regulations. He wondered if it was not useful to refer specifically to the provisions relating to the review.

The Chairperson said that “the provisions of this Act” seemed to cover everything. It was necessary to be careful not to contradict anything in the main clauses. He saw no problem with the current wording.

Ms Smuts made an inaudible comment.

The Chairperson asked Members to consider where this should be inserted, and asked the SLAs to consider where would be most appropriate, most probably at the end of the chapter.

Clauses 37 and 38
These clauses were agreed to

Clause 39
The Chairperson noted that this clause had been discussed at length and Members had finally agreed to it.

Clause 40

This was agreed to.

Clause 41

Ms Smuts asked if the custodial sentence mentioned in clause 41(2) should not be brought in line with the provisions of the National Archives and Records Services of South Africa Act.

The Chairperson noted that this had already been discussed. At the time, Members had consulted widely and cross-referenced it. They did not believe that this would cause a problem.

Clauses 42 and 43

Members agreed to these clauses.

Clause 44

Mr D Maynier (DA) said that, at a previous meeting, the DA had discussed the criminalisation of disclosure and had proposed a public interest defence. An alternative wording for this clause was given, which specified exceptional circumstances under which classified information could be disclosed. The departure point of that fully accepted was that it would, in general, be an offence to disclose classified information, but also set out that in certain, limited and exceptional circumstances some information could – and should – be disclosed. He pointed out that no response to that that proposal had been given by the ANC.

Mr Swart reminded the Committee that he too had proposed a more limited defence of public interest relating to unlawful disclosure and possession. He did not wish to labour that again at length.

Mr Landers said that the ANC had carefully considered both proposals but could not find favour with them. It was fairly obvious that both of the proposals sought to protect members of the media and journalists. Essentially, they were saying that a journalist coming into possession of a classified document must be allowed to publish it. Reference was made to various expert opinion. The ANC had also done its own research. He pointed out that on 16 February 2011 the South African National Editors Forum (SANEF) had appeared before the Portfolio Committee on Justice and Constitutional Development in public hearings on the Protection of Personal Information Bill (PPIB). The Forum was asked whether the PPIB affected the activities of the media and journalists, and Raymond Louw had responded that everything else hinged on whether a exemption for journalists would be allowed. The problem with such an exemption was that it would journalists in a special category of their own, and he said that if there was an exemption, it would pose problems for the self-regulatory system. He added that journalists had no lesser, and no greater powers than the ordinary individual, and that journalists were not in a “class of their own”. He added that although Dr Dario Milo’s suggestion on PPIB was impressive, it placed journalists above ordinary individuals. He had concluded that journalists could not depart from the fundamental principle that they were no better and no worse than the ordinary citizen.

Mr Landers also referred to Judge Yacoob’s comments in the Independent Newspapers case, to the effect that the public was entitled to know everything except that which could not be revealed on account of important national security considerations. That had been quoted by Webber Wentzel to the public hearings on PPIB, as well as section 46 of PAIA. Mr Landers pointed out that section 46 of PAIA was already incorporated in the Protection of State Information Bill,  as the public interest override, in clause 20. 

Mr Landers stressed again that the Bill provided processes under which people would be able to access information legally. He added that a speedier approach was available for declassification of information that sought to cover up malfeasance. The ANC believed that these provisions went far enough, notwithstanding some criticism that the provisions of the Protected Disclosure Act had not gone far enough. It could be not argued that a requirement for the media first to follow the lawful channels to attempt to have a document declassified was an unjustified restriction on media freedom in a democratic society. The effect of the Bill would merely be to render the media subject to the Rule of Law.

Mr Landers also added that clause 51 provided further protection in that a person who classified state information to conceal breaches of the law would be guilty of an offence. The ANC therefore believed that what was already contained in the Bill was sufficient, and in line with what Webber Wentzel had asked of Parliament.

Mr Maynier thanked Mr Landers for the response, but thought that he must point out that Mr Landers seemed to have misconstrued two aspects of his argument. There was nothing in his proposal that suggested that the aim of his proposals on the clause was to protect the media alone. Instead, his wording sought to protect Members of Parliament, the media and any citizen in a proper democracy. Mr Landers suggested that the intention was that a member of the media coming into possession of a classified document may publish it, but that was not what was in the proposal. The departure point, as he had already stated, was to accept that in general a person disclosing such information would have committed a criminal offence. However, there were five exceptional circumstances in which this would not be so: including if the disclosure revealed an unlawful act, omission, incompetence or administrative error. If these applied, then the information could be published or disclosed. He stressed that this amounted to a defence, so if the person publishing “got it wrong” and published without these circumstances being present, then s/he could be prosecuted. One of the arguments against a public interest defence was that it would create a loophole and allow the contents of classified documents to be published freely. The DA proposal would not allow this. Instead, it would provide legal certainty, and specify the exceptional circumstances in which classified documents could be disclosed. He urged Mr Landers to reconsider the position.

Ms H Mgabadeli (ANC) wished to stress to the DA that Mr Landers was acting as the spokesman for the ANC, and was putting the ANC views, and not his own.

Mr Swart said that the ACDP was deeply disappointed at this response. What had been presented for consideration had been a very narrowly crafted public interest defence. He did not wish to labour the point but thought that there was still some scope for reconsideration. He recalled that indeed Mr Louw had argued these points on behalf of SANEF at the Portfolio Committee on justice, but Mr Swart had pointed out to him that the Films and Publications Amendment Act provided an exemption. SANEF members had asked to caucus on this point, and, after doing so, had agreed that it would be in their interests to ask for an exemption, as there was clearly scope for this. He, like Mr Maynier, stressed that a person in possession of classified documents could be charged, but it would then be up to the courts to strike a balance as to whether the defence would apply. The court would weigh up the harm to national security against the public interest of disclosure, within the narrow confines of imminent danger to public safety, the environment, or contravention of the law.

Mr Sonto said that the ANC was equally disappointed that other parties appeared to be asking that criminal behaviour should not be regarded as a criminal offence. He had asked for – but had not been given – one example of a democracy where this had been allowed. He said that this was akin to theft, and theft could not be decriminalised. A person who stole a loaf of bread, in order to give it to hungry people, would still be charged with theft, despite his noble intention of feeding the poor. The ANC did not believe that the suggestions of the opposition parties could be supported. The clause was essentially dealing with theft of classified information and this could not be justified. The ANC would prefer that people should be simply discouraged from theft altogether. He reminded Members that this whole Bill was to do with vulnerable information.

Mr Maynier responded to Mr Sonto that the effect of his proposal was that the person disclosing classified information would in fact be revealing theft or stealing, and it was the democratic duty of citizens to report crime. He also answered him that one case study in a democracy was the case of the United Kingdom, and he would provide all the details again.

Mr Maynier also stressed that the five exceptions cited in his proposal were in fact already contained in the Bill, and were taken from clause 15, which said that documents may not be classified if they contained documents that revealed an unlawful act. This begged the question of why – if the information could not be classified – there was a prohibition against disclosing it.

Ms Smuts added that this was especially so in respect of corruption and theft.

Mr A  Maziya (ANC) said that it seemed to be clear that there were two opposing positions, and he did not think the Committee should continue to discuss the issues.

Dr M Oriani-Ambrosini (IFP) noted that he would not repeat what had already been said. He had hoped that this process would allow the parties to hear each other and be open-minded as to whether the arguments were convincing. He noted that a common starting-point must be found. Every Member had an oath of office to serve the people of South Africa. The very purpose of classifying was to serve the people of South Africa and to protect them and their interests. He carried no brief for the media, and spoke only of the general citizenry. He thought that the crisp issue was that when the interest of the public in getting information were stronger than the interests of the public in classifying that information, then the disclosure should not be published, and there should be a defence. This should be left to the courts to decide. Members had clearly stated, throughout these deliberations, that judges had the necessary competence to do so. The Bill had, elsewhere, created criteria to allow for weighing of interests. He repeated that anyone charged with the offence of disclosure should be entitled to raise, as an exculpatory defence, that the disclosure served to reveal a matter of such public interest or importance that it would outweigh the interests of it remaining classified. Language must be clear, to serve the best interests. To date, the debate had been focused on the media. Dr Oriani-Ambrosini also referred to the submissions on the protection of personal information, and pointed out that these were made specifically in relation to the journalists’ own trade and profession. This Bill, however, was not about the media, but about whether the public interest would be better served through secrecy or public disclosure. The courts would be required to do nothing more than apply the criteria set in clause 15.

Mr Swart responded to Mr Sonto that there was a case dealing with the constitutionality of similar provisions, and quoted an Ontario court decision in which a similar provision that sought to penalise a journalist was struck down as unconstitutional, and in breach of the right to freedom of expression. There was a very strong possibility that if this Bill did not, at the very least, contain a narrowly-crafted public interest defence, the first person charged under these provisions would approach the Constitutional Court, and there was equally a very strong possibility that the provisions would be declared unconstitutional.

The Chairperson made the point that this case had been cited previously.

Mr Landers responded to Mr Maynier’s point that this defence was not crafted specifically to cater for the media, and that even Members of Parliament (MPs)could fall foul of this law. He pointed out that any Member of Parliament who applied his mind would not do so. Section 58 of the Constitution provided certain privileges to MPs including freedom of speech, and the fact that they could not be liable to criminal or civil proceedings for anything said or produced to the House or its Committees. He said that the DA must surely concede that in fact the defence was aimed at protecting the media.

The Chairperson noted that the Rules Committee was currently looking at the possible lacuna in the law on this point.

Ms Smuts said that she thought Mr Landers’ comments on privilege of MPs were cast in an unfortunate way. It was true that the privilege existed, but this was precisely so that MPs could raise questions of malfeasance or corruption or similar actions. The suggestion that this privilege could be used as some kind of a loophole, or that MPs occupied some elite position, was unfortunate. An MP also frequently needed to put certain facts on the table, which might divulge malfeasance, but the question was how to do so if the House was not sitting. Mr Sonto was correct in making a reference to theft and corruption, but she agreed with Mr Maynier that it was the duty of a citizen in a democratic state to reveal this to the police and the public, including by an MP through Parliament. In every Media Charter it was an article of faith that the media would not ask for any other rights, but journalists should be in a position to disclose wrongdoing. She stressed that what Mr Maynier had proposed would not mean that a person revealing this information would be exempt from prosecution. Instead, it could be raised as a defence after a person had been prosecuted, and if the court found that it was not justifiably used, the normal sanctions would follow.

Mr Maziya repeated again that unless the Chairperson was convinced that further deliberations might lead to consensus, the two opposing positions should be noted, and the Committee should move on.

The Chairperson noted that the arguments had now all been presented, many times, on this issue. Everyone had the opportunity to speak, and he points had been well-covered by the media. He had allowed for further debate, against the wishes of certain Members, but he agreed that Members did not appear to have moved any closer to accepting each others’ positions. It would be inappropriate, and a waste of time, to allow the matter to be argued any further.

Ms Smuts accepted the ruling of the Chairperson, but noted that this was not the end of the debate.

Ms Smuts wished to make another point on this clause, and suggested that the option of a fine should be included in clause 44.

The Chairperson asked the SLAs to insert the relevant option of a fine. He also added that the phrase “intentionally and unlawfully” should be used, for consistency. 

Clause 45

No comments were raised in relation to clause 45.

Clause 46

Mr Maynier noted that there were similar arguments and proposals put up by the DA in relation to clause 46 as had been raised in relation to clause 39. If the Committee looked back on the information-peddling arguments, as well as the recent Sunday Times article by former Minister Ronnie Kasrils, it would see that the question remained as to what should be done if the false information was provided by the national intelligence structures themselves. He did not believe that this was criminalised. He suggested that a new clause 46(b) should be inserted, that criminalised the giving of false intelligence by the intelligence officers themselves.

Ms Smuts note that Mr Kasrils clearly had the Browse Mole report in mind when he wrote the article.

Mr Maynier added that in at least two cases, it appeared that the National Intelligence Agency (NIA) officers had provided false information to political factions.

Mr Landers asked if Mr Maynier really thought that this should be criminalised.

Ms Smuts said that if it was so that information was being fabricated and provided to difference factions, this could have serious consequences.

Mr Maynier added that the leaking of tapes and lies was the real problem.

Ms A van Wyk (ANC) thought that the whole debate was getting out of hand. She made the point that clause 46 was worded as “any person”. That would include the intelligence agent who provided false information.

Mr Maynier did not think that this was correct, and the question was to whom that information would be provided. This clause related to a person providing false information to “a national intelligence structure”, He did not think that it covered a position where a rogue intelligence officer provided false information to other structures.

Ms Smuts suggested that the word “state” should be replaced with “false information”.

Dr Oriani-Ambrosini took issue with the reference to “false or fabricated”, and said that “fabricated” information might also be true. The falsehood was the main point, so he suggested that only the word “false” should be used.

The Chairperson thought that there was a difference between “false” and “fabricated”, pointing out that the latter clearly could not be conveyed by mistake. Although he had wanted to provide further comment on this clause, he did not think it would be appropriate to do so at this stage.

Clause 47

No changes were made, save that the number “41” at the bottom of page 80 should be noted in square brackets, as it was a deletion.

Clause 48

Members made no changes to clause 48.

Clause 49

Mr Maynier pointed out that the whole question of the prohibition of disclosure of a state security matter came into play with this clause. The DA had proposed that the entire clause should be deleted. The Minister of State Security had been at pains to point out, in an earlier presentation, that one of the reasons why this Bill was introduced was that it was necessary to repeal the Protection of Information Act of 1982, which was clearly not desirable.

It was important to bear in mind that this 1982 law related to “a state security matter”. Clause 49 was effectively repeating that part of the 1982 law. This clause would effectively prevent the disclosure of absolutely anything to do with the intelligence services – and Dr Oriani-Ambrosini had correctly pointed out that this might include the disclosure of what was on the lunch menu of the Minister. This was a far higher standard of classification than was provided for in clause 15. It could prevent any disclosure of any information at all.

Mr Maynier said that this concept was originally introduced in 1969, by the (then) Bureau of State Security (BOSS). In 1981, MP Tien van der Merwe criticised the concept, noting that if any matter dealt with by the intelligence services was automatically classified, this effectively gave the intelligence services carte blanche to commit all kinds of abuses. He had said that if information was disclosed that indicated corrupt activities within the intelligence services, then it was clearly “in the national interest that this be made known at the earliest opportunity, so that the public could take cognisance of it”. This concern held equally true today, and Mr Maynier urged again that the clause should be deleted.

Dr Oriani-Ambrosini said that he would be prepared to support this clause, and lobby his colleagues also to do so, if the definition of “a state security matter” was amended. The current definition read that it “includes any matter which is dealt with by the Agency or which relates to the functions of the Agency or to the relationships existing between any person and the Agency”. He proposed that the words: “which has been classified in terms of this Act” should be added after the words “any matter”. If that was specified, so that the definition was “any matter which has been classified in terms of this Act, which is dealt with by the Agency…” then there would be less concern.

Mr Landers said that the ANC found favour with the proposals of Dr Oriani-Ambrosini.

Ms Smuts said that she had repeatedly stressed that this Bill should not attempt to do anything more than was already being done under the current legislation. If this amendment was made, then clause 49 would apply to intelligence operatives, and relate only to classified information to do with the Agency. This was the absolute minimum that had to be done, and she was also in favour of the amendment.

The Chairperson asked the SLAs to effect that amendment.

Clauses 50, 52, 53
No comments were raised on these clauses.

Clause 51 read with clause 54

Dr Oriani-Ambrosini reminded Members of his comment that the Minister should not be able to prescribe any regulations (under clause 54) in respect of offences set out in the new clause 51.

Mr Landers said that similar provisions were included in other legislation.

Ms Smuts added that these could be found in the Films and Publications Act.

Other defences
Dr Oriani-Ambrosini said that he also wanted to raise the issue of the public domain defence again. This had been fully presented and discussed, and he would not repeat the points. He stressed, however, that this was different to the public interest defence.

The Chairperson noted that most of the Members had indicated that they regarded themselves bound by the judgment of Judge Moseneke in the Constitutional Court case of Independent Newspapers. He did not think that the matter could be taken any further. He agreed that although one view in international best practice supported Dr Oriani-Ambrosini’s arguments, others did not.

Dr Oriani-Ambrosini placed on record that he was of the opinion that nothing in the judgment by Judge Moseneke prevented the Committee from inserting this provision into a new piece of legislation.

Ms Smuts indicated that she had taken legal advice on the matter, and, although she did not like the judgment, the legal advice had indicated that she was bound to it. She noted that paragraph 55 of that judgment presented some other points, but that as the matter stood at present, paragraph 72 of that judgment was binding.

Clause 52
The Chairperson reminded Members that the provisions had been dealt with in detail, and he saw no reason for further debate on this clause.

Clause 53
Members raised no objection to this clause.

Clause 54

The Chairperson noted that the regulations had been dealt with at an earlier meeting. He highlighted new subclauses (4) and (5) on pages 92 and 93 of the Working Document.

Clause 55

The Chairperson said that Dr Oriani-Ambrosini had provided valuable input on this, and the new wording was set out from page 94

Ms Smuts said that clause 55(1) stated that “the provisions of this Act are suspended from operation…” and then listed certain exceptions. She noted that clause 20 was not included in that list, and she thought it would be unconstitutional if this were to be suspended.

Ms Booyse noted that it had been taken into account, although it was reflected under its old numbering as “section 28”. All the necessary numbering changes would be made when the Bill was finalised, and all the references would be checked.

Ms Booyse further pointed out that clause 55(1)(e), on page 95, should have been reflected in bold, because the references to the National Declassification Database had all been deleted from the Bill.

The Chairperson summarised the remainder of the amendments to this clause. He drew attention to the agreed wording in relation to the Minimum Information Security Standards (MISS) in clause 55(2).

Mr Swart wondered if the numbering in clause 55(3) was correct.

Ms Booyse repeated that the cross-referencing exercise still had to be completed and the “clean” new version would reflect all the correct clause numbers.

Clauses 56 and 57

Members agreed to the wording now reflected for these clauses.

Clause 13
The Chairperson noted that the wording in relation to the criteria still needed to be settled. There had been some misunderstanding on how the parties read the opinion of Adv van Rooyen, and he hoped that this could be settled at this meeting.

Mr Landers noted that the ANC’s decision on this clause was based on Adv van Rooyen’s legal opinion and advice. He read through the ANC proposals for the new clause, and summarised that in each of the subclauses 13(1), (2) and (3), the references to the international relations would be deleted. Therefore, clause 13(1) would end with a semicolon after “national security of the Republic”, deleting “or is likely or could reasonably be expected to prejudice the Republic in its international relations”. In clause 13(2) the subclause would similarly end after “ national security of the Republic”, leaving out “or is likely or could reasonably be expected to jeopardise the international relations of the Republic”. Subclause 13(3) would end after “national security of the Republic” and would delete “or is likely or could reasonably be expected to cause other states to sever diplomatic relations with the Republic”.

The ANC had also agreed that the references to personal security should be deleted. Therefore, clause 13(2) would end at the words “national security of the Republic” on the third line of subclause (a), and what had formerly been included as subclauses (b), dealing with commercial information (deleted some time ago) and the new (c)/(b), dealing with personal information, would be deleted.

Similarly, clause 13(3) would end at the words “national security of the Republic”, on the third line of subclause (a) and the former clauses (b) and (c) would be deleted.

Ms Smuts was delighted to hear of this proposal, and said that it would remove a potential ground on which the Bill could be challenged constitutionally, as being over-broad. Although the DA had originally proposed that clauses relating to international relations should be included, the DA had similarly been persuaded by the arguments of Adv van Rooyen that these were over-broad. The DA had never been in favour of an personal safety considerations being included in the Bill.

Ms Smuts wondered if there was any reason to keep clause 13(4). This referred to “guidelines for classification levels as prescribed”, but she believed that the Committee was in agreement that the conditions for classification set out in clauses 13 and 15 would be the only test. The Bill did not make any other references to “guidelines”.

Dr Oriani-Ambrosini said that he did not know where this subclause emanated, and he thought it was contradictory.

Mr Landers said that the ANC would have no objection if it were deleted.

Mr Dennis Dlomo, Advisor to the Ministry of State Security, said that although the Bill referred to “policies and procedures” there was indeed no further reference to the “guidelines”. This subclause had been inserted at a point when consideration was being given to having national classification guidelines setting out the levels. He agreed that this could be removed.

The Chairperson said that all of this was in any event covered in the Regulations.

Members agreed to delete clause 13(4).

The Chairperson asked the State Law Advisors to reflect the new wording for clauses 13(1),(2) and (3) in the next version of the Bill.

Clause 1(4) on page 21

The Chairperson advised Members that the ANC had asked for the opportunity to address the Committee on the adjustments that it had proposed on the previous day in relation to clause 1(4).

Mr Landers noted that when the proposal was made on the previous day, the ANC may have erred in not providing a motivation and he understood the reaction that it had provoked, as on first sight it may have seemed that the clause was attempting to overturn the provisions of PAIA. However, he pointed out that the key words in the ANC proposal were “a provision of another Act of Parliament that regulates access to classified information”. The essence of the proposal was therefore that if PAIA was in conflict with this (Bill) and a provision of another Act that regulated access to classified information, then this Act (the Bill) would prevail. He apologised if this had not been made sufficiently clear.

Dr Oriani-Ambrosini said that the meaning was clearer now that the emphasis had been placed on these words. However, he suggested that it could be clarified still further if it were to read: “In respect of classified information, notwithstanding section 5 of PAIA, in the event of a conflict between a provision of this Act and the provision of another Act of Parliament that regulates access to classified information, the provision of this Act prevails”.

Ms Smuts said that the DA could understand the concern that the ANC wanted to ensure that what was in this Bill would prevail if there were provisions of other Acts dealing with classification. This Bill did set out clear criteria for classification. The DA also wanted these criteria to apply to existing statutes and future classification. However, she felt that there was still a problem with the reference to section 5 of PAIA. Ms Smuts believed that the Bill, in its current form, was now mostly materially consistent with PAIA, apart from a few areas, including the lack of a public interest defence. From the beginning of the process, the ANC had said that nothing in PAIA prevented the withholding of information, in respect of section 41 of PAIA. She wondered why, if the ANC also believed that there was no material inconsistency, there would be any need to even mention section 5 of PAIA. She therefore suggested that the words “despite section 5 of PAIA” should be deleted, because if it remained, it did suggest that this Bill was indeed in conflict with PAIA.

Mr Swart also still had some concerns relating to whether this provision might not “trump” section 41 of PAIA, which had different tests for disclosure. The wording of section 46 of PAIA had been incorporated into this Bill. However, section 41 of PAIA had different thresholds that were much wider than provided for in this Bill. He understood the reference to “classified information” but pointed out that PAIA made no reference specifically to “classified information” although section 41 might imply that the information sought might well be classified. It was conceivable to have a situation where a person could be denied access under this Bill although that person might have gained access under PAIA, in relation to defence and security issues. He would need to give more consideration to this point.

Dr Oriani-Ambrosini was concerned that it could be interpreted that everything that was not accessible under PAIA could virtually be classified. This went back to the situation that there could exist a sector of information that belonged to government, which was not accessible under PAIA, but was not classified, which would mean that that information could be withheld despite the fact that it was not classified. He was not quite sure how this clause would operate.

The Chairperson asked the SLAs in the meantime to effect the change suggested by Dr Oriani-Ambrosini, and accepted by the ANC, to insert “In respect of classified information” at the start of the clause. Members would discuss this point on the following day.

Procedure for future meetings
Mr Swart asked how the process would unfold on the following days, and when voting might take place on the Bill.

The Chairperson noted that the SLAs would be producing a “clean” document that would essentially be the same as the “B” version of the Bill, although it would not be in a formal printing format. The Committee would go through that, then the Bill would be printed from that version, and would need to be formally adopted.

Dr Oriani-Ambrosini noted that the Committee must be voting from a “clean” version.

The Chairperson said that there was no rigidity to the process.

The meeting was adjourned.

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