Protection of State Information Bill [B6B-2010]: Minister's and Department's briefing

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

24 January 2012
Chairperson: Mr R Tau (Northern Cape, ANC)
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Meeting Summary

The Minister of State Security, Hon Siyabonga Cwele introduced the Protection of State Information Bill [B6B-2010] (the Bill) to the Committee, stressing that new legislation was needed that addressed the Constitutional imperatives, reflected the need to protect citizens, and replaced the Minimum Information Security Standards, which were not legally binding. The Bill sought, in particular, to deal with espionage and information peddling, both of which were problematic yet not criminalised at present. Some progressive changes had been made by the National Assembly’s ad hoc Committee, resulting in the B-version of the bill now before the Committee. However, it had become clear that many members of the public were still not sure what the Bill said, so he urged this Committee to ensure that citizens were aware of the correct version.

The Department then outlined the background to, and content of the Bill. It was emphasised that most of the members of the ad hoc committee in the National Assembly (NA) had unanimously approved most of the clauses of the Bill, but there were objections raised to the lack of a public interest defence, or public domain defence. In summarising the main objectives, the presenter stressed that although the free flow of information within an open and democratic society must be promoted, there was clearly a need also to protect information vital to national security, and therefore to the security of all citizens. A balance must be found between the need to maintain secrecy with the right of the public to get access to information, meaning that some information held by the state must be restricted for reasons of national security. It was unfortunate that some sections of the public had dubbed the Bill as “the Secrecy Bill” for this created a wrong impression. The Bill also dealt with information that, although not classified, needed to be protected from loss, alteration or destruction, such as personal information about citizens. The definitions and the application of the Bill were briefly outlined. It was emphasised that the Bill would apply to security services and their oversight structures, and although an opt-in clause was also included, not enough media attention had been focused on the fact that there were stringent requirements for this, including publication to enable public participation. The content of clause 6 was of great importance. Chapter 3 dealt with policies and procedures, and these would be subject to review by the Classification and Review Panel. Although upgrading of classification status could occur, this was limited to the very few instances where a field agent had classified, and this needed to be confirmed by the head of the organ of state, and downgrading of classifications was far more important. Chapter 4 dealt with valuable information that required protection, and the system would operate in line with the existing National Archives legislation

The Department specifically drew attention to the requirements set out in Chapter 5, stressing that classification may not be used to conceal an unlawful Bill or omission, incompetence, inefficiency or administrative error, restrict access to state information in order to limit scrutiny and thereby avoid criticism, or prevent embarrassment to a person, organisation or organ of state or agency. It also could not be used to unlawfully restrain or lessen competition, prevent, delay or obstruct release of state information that did not require protection under the Bill. Classification was an exceptional measure, to be used only when there was a justifiable and demonstrable need. Classification decisions must balance openness and secrecy.  Clause 15 set out how classified records coming into possession of an unauthorised person must be returned to the South African Police Service or the State Security Agency (the Agency), and it was stressed that a person who followed the correct procedure would not be prosecuted. Chapter 6 dealt with reviews, and it was emphasised that annual reports would be published to ensure public accountability and scrutiny. Clause 19, a provision unique to the South African legislation, emphasised the principle that classification was not, by itself, a reason for denial of access, and it provided for a public interest override, with time limits for investigation and, if necessary, declassification, provided. The court could be approached in cases of an imminent public danger, and urgent applications could also be brought. Chapter 7 was another innovative part of the Bill, and set up the Classification Review Panel, whose function was to ensure compliance by organs of state with the powers that related to classification, declassification and reclassification of state information. Its independence ensured that government remained accountable to Parliament.

Chapter 8, which dealt with appeals, mirrored the provisions of the Promotion of Access to Information Act. Chapter 9 dealt with transfer of records to the National Archives, and release of the declassified information to the public. Chapter 10 dealt with implementation and monitoring of the Bill. Chapter 11 set out offences and penalties. The Department emphasised that virtually every country except South Africa had adequate counter-espionage measures and strong legal provisions for protection, so it was vital that South Africa should set up similar provisions. All elements of the proposed new offence would have to be proved by the state in order for a prosecution to succeed. The chapter also contained a number of other new offences, and the penalties differed, according to the impact of the offence on the public. Whistle blowers were adequately protected in line with the Public Disclosure Act. Chapter 12 provided for protection of information before courts, and Chapter 13 set out general provisions, including transitional provisions and repeal of law.

Members asked if the State Law Advisors had expressed an opinion on the constitutionality of the Bill. A COPE Member noted that a number of objections had been raised throughout the NA process, and hoped that the voice of the people would be heard by the ANC in the upcoming public hearings. The constitution of the Classification Review Panel was questioned, and Members expressed the hope that the NCOP would also be involved in processes. Members also asked the reasons why the opposition parties had expressed dissenting views during the NA process, the reasons why foreigners had criticised the Bill, questioned remarks ascribed to the Minister in the Business day of 17 November 2011, and asked about information peddling and the penalties. The Department outlined, by way of flowcharts, the processes that would follow a request for access to information, and emphasised that authority to classify lay with the head of the organ of state, that reviews of classification lay with the Classification Review Panel and appeals to the Minister. The point was made by Members that there were practical difficulties for ordinary citizens in accessing the justice system, and asked how this Bill would actually benefit ordinary South Africans.

The Committee discussed the programme for public hearings, noting that the final advertisements, with details of the venues, would be placed that afternoon. Public hearings would commence in Western Cape on 31 January.

Meeting report

Protection of State Information Bill: Minister and Department of State Security briefings
The Chairperson expressed appreciation to the Minister of State Security, Hon Siyabonga Cwele, for making himself available to brief the Committee. The Minister briefly outlined the necessity for the Protection of State Information Bill (the Bill). The current legislation needed to be amended to bring it in line with the Constitution and reflect the new ethos to offer protection to the citizens of the State. Legislation that provided for a coherent, justified and consistent method of classification was required. Currently the Minimum Information Security Standards (MISS) had no legal force. Furthermore, it was necessary for South Africa to find a way of dealing properly with espionage, and with information peddling, neither of which was currently criminalised in South Africa. The Bill also dealt with another problem of how sensitive information in the hands of the court should be dealt with, and sought to address problems linked to corruption or administrative ineptitude. He explained the difference between classified information, and valuable information; the latter, which included identity information, company information and similar documents, although not classified, had to be protected to avoid harm to citizens. Overall, the values of the Constitution must be adhered to, and in this regard he mentioned that the Bill did comply with the Promotion of Access to Information Act (PAIA) and the protection of whistleblowers.

The Minister added that the Ministry and Department of State Security welcomed progressive changes that had been made to the Bill by the National Assembly. Towards the end of the process, it became clear that despite all the work done by Parliament, members of the public were still not sure exactly what was contained in the new Bill. He urged the Committee to make it clear that comments must be directed to the B6B-2010 version of the Bill. This Committee, representing the provinces, was much closer to ordinary citizens throughout South Africa. He concluded that the Ministry remained committed to democracy and to listening to all views of all South Africans, and it was vital that due process be followed.

Mr Dennis Dlomo, Acting Director General, Department of State Security, briefly outlined the background to the Bill. Since 1994, various Ministers of Intelligence had commissioned a number of reviews to improve the management of state information. The first version of a new Protection of Information Bill was tabled in 2008, but was later withdrawn, and a revised version was introduced on 9 March 2010. Public hearings were held on 21 and 22 July 2010. After extensive deliberations, the National Assembly (NA), on 22 November 2011, passed the B-version of the Bill. Most members of the NA’s ad hoc Committee approved most of the Bill, but there were objections raised to the exclusion of clauses dealing with the public interest defence, or public domain defence. The Ministry and Department of State Security (the Department) welcomed the opportunity to debate matters further in this Committee.

Mr Dlomo outlined the objects of the Bill, repeating that the current legislation was no longer in keeping with human security doctrines and it was necessary to create a statutory framework for protection of valuable and sensitive information. The Bill set out criteria classification, reclassification and declassification. He reiterated that the MISS was a Cabinet document, which had no legal force, and this was not adequate for proper protection. This Bill would promote transparency and accountability, provide a thorough and methodical approach to protection of valuable information, create a system for review of classified information, declassification of information and regulating accessibility of declassified information, mainly through the National Archives and Records Service (the Archives).

Mr Dlomo then described the main provisions of the Bill. The Preamble stated that information was important to the national security of the Republic and may need to be protected, although the free flow of information within an open and democratic society must be promoted. He stressed the need to balance the need to maintain some secrecy with the public’s right of access to information. Information held by the state may be restricted only when necessary for reasons of national security and the protection of citizens against harm.

Chapter 1 contained the definitions. He emphasised the definitions of “hostile activity” and “information peddling”. There had been lengthy debates around the definition of “national security” during the NA process. The definition now set out that national security would not include “lawful political activity, advocacy, protest or dissent, to emphasise the shift towards the protection of the citizen. Definitions for “state information”, “state security matter” and “valuable information” were also set out (see attached document).

Mr Dlomo set out the objects and application of the Bill, and said that when the Bill came into force, it would apply to all organs of state in respect of protection of valuable information. Powers of classification, reclassification and declassification were restricted to the security services, as contemplated in Chapter 11 of the Constitution, and their oversight structures. An opt-in option was included for other organs of State, but there would need to be publication of the intention to opt in, to enable public participation, and the opt-in would be regulated, with reasons needed for opting in. He did not feel that reporting to date had emphasised this sufficiently.

Chapter 2 was very important, and Mr Dlomo read out the wording in relation to state information, specifically clause 6, which noted that “unless restricted by law that clearly sets out reasonable and objectively justified public or private consideration, state information should be available and accessible to all persons”. He stressed that access to state information was a basic human right, and free flow of such information promoted responsibility, openness and good governance, as well as being able to promote national security. However, it was obvious also that some confidentiality was needed to protect national security, bring criminals to justice, protect citizens and promote good administration. He stressed that any attempts to classify outside these principles would not be allowed.

Chapter 3 dealt with policies and procedures. The creation of policies, directives and categories would be subject to review by the Classification and Review Panel, and must be established within six months. Upgrading would only occur if the head of an organ of state, when reviewing information already classified by a field agent, deemed this necessary, but this applied only to a very small portion of the information that would be classified. Downgrading was a far more important aspect. The assumption that reclassification would provide a back door for officials to increase classification without check was incorrect.

Chapter 4 dealt with valuable information that required protection. The Bill also provided for destruction of documents in keeping with the National Archives Act and did not create a parallel system.

Chapter 5 provided for classification and declassification of state information. Clause 14 set out the conditions for classification, which Mr Dlomo read out to the Committee. He stressed that classification may not be used to conceal an unlawful act or omission, incompetence, inefficiency or administrative error, or to limit scrutiny and thereby avoid criticism, or prevent embarrassment to a person, organisation or organ of state or agency. It also could not be used to unlawfully restrain or lessen competition, prevent, delay or obstruct release of state information that did not require protection under the Bill. He also stressed that classification was an exceptional measure, to be used only when there was a justifiable and demonstrable need. In cases of doubt, relevant Ministers must be consulted. Classification decisions must balance openness and secrecy. He also noted that scientific and research information that was not necessary to state security could not be classified. Information that had been declassified could not subsequently be re-classified.

Clause 15 set out how classified records coming into possession of an unauthorised person must be returned to the South African Police Service or the State Security Agency (the Agency). Mr Dlomo stressed that the reason for classification was to keep information safe from those who sought to harm national interest, and the requirement for return of classified information was not as complex as had been suggested. Part B of this Chapter dealt with the authority to declassify and the maximum protection periods.

Chapter 6 dealt with reviews, and it was explained that in addition to annual reviews, there would be ten-year compulsory reviews, and twenty-year reviews, where the head of the organ of state would have to demonstrate the need for continued classification of the information. An annual report would have to be published to ensure public accountability and scrutiny.

Clause 19 dealt with access to classified information. This was a new provision which sought to put the Department in a proactive basis, and was unique in the world. Given that classification was not a reason for denial of access, there was a clause that provided for the public interest override, which was particularly important. If information that violated the conditions of classification – such as information about breaking a law – had been classified, the head of the organ of state must declassify and disclose that information within 30 days. If there was information that pertained to an imminent public danger, a 14 day period for release of the information would apply. There was also provision for making urgent application, without having to observe the time periods set out in the Bill, where there was a danger that information may be destroyed.

Chapter 7 set up the Classification Review Panel, another innovative aspect of the Bill. The Panel’s main function was to ensure compliance by organs of state with the powers that related to classification, declassification and reclassification of state information. Its independence ensured that government remained accountable to Parliament. Its members were nominated by the public, short-listed by members of the Joint Standing Committee on Intelligence (JSCI), and appointed by the Minister, after approval by the National Assembly. It would exercise an oversight function, along similar lines as the Auditor-General, and was obliged to prepare and submit to Parliament an annual report on its activities.

Chapter 8 provided for appeals and set out the procedure to be followed if access to information was refused. This was identical to the provisions in the Promotion of Access to Information Act (PAIA). This chapter also dealt with the procedures for application to Court for relief. A requestor was empowered to approach the court directly, without exhausting the internal appeal procedures.

Chapter 9 dealt with the transfer of records to the National Archives, and release of the declassified information to the public. No classified state information could be made available before it had been declassified.

Chapter 10 dealt with the implementation and monitoring of the Bill. The State Security Agency would monitor the implementation and must provide all organs of state and ministers with support and advice on the handling and review of classified information. The South African Police Service (SAPS) and South African National Defence Force (SANDF) were responsible for their departments.

Chapter 11 set out offences and penalties. The penalties were quite severe, to serve as a deterrent. He emphasised that most countries other than South Africa had adequate counter-espionage measures and strong legal provisions for protection, and it was vital for South Africa also to have them. He read out the proposed new offence of espionage, and stressed that all the elements of the crime, namely unlawful and intentional communication of state information, and benefiting a foreign state, would have to be proven for a successful prosecution. He also read out the penalties for espionage, noting that penalties differed according to the classification level of the information revealed. Mr Dlomo noted that whistle blowers were adequately protected in line with the Public Disclosure Act. He emphasised that a person who came unlawfully into possession of classified information, and handed it in, in the correct manner, would have demonstrated that s/he did not have an intention to unlawfully retain classified information, and would not be prosecuted. This Chapter also set out other offences in relation to hostile activity, interception of interference with classified information, disclosure of classified information, provision of false information to national intelligence structures, destruction or alteration of valuable information, and wrongful classification, and prohibition of the disclosure of a state security matter.

Chapter 12 provided for protection of information before courts, and Chapter 13 set out general provisions, including transitional provisions and repeal of law.

Mr Dlomo stated, in conclusion, that this Bill sought to balance the need to maintain secrecy, whenever and wherever it was necessary, whilst still guaranteeing the right of access to information held by the state. Adequate safeguards were built into the Bill to prevent abuse, provide oversight and public scrutiny and accountability. He noted that the oversight would be provided though the Classification Review Panel, Parliamentary oversight by the JSCI, civil monitoring by the Inspector General of Intelligence, judicial oversight through the Inspecting Judge on Interceptions, and executive oversight by the Minister of State Security and other responsible ministers.

Mr D Worth (Free State, DA) asked for the opinion of the State Law Advisors on the Bill, and asked whether it was regarded as constitutional, particularly in view of public criticism that insufficient attention was paid to the public interest defence.

The Chairperson noted that there would be an opportunity to engage with the State Law Advisors on another occasion.

Minister Cwele said that the State Law Advisors had been asked to certify the Bill, and officials from the Office of the Chief State Law Advisor (OCSLA) had given assistance to the NA ad hoc committee. He noted that there were already strong public interest provisions, particularly the public interest override. The main point of contention was the lack of a public interest defence, on which Mr Dlomo would comment.

Mr D Bloem (Free State, COPE) noted the Minister’s statement earlier that the ANC had a culture of listening to the people. He submitted that this was true of the “old ANC”, but was not currently the case. Since the introduction of this Bill, a number of bodies had raised objections. He welcomed the upcoming public hearings and hoped that the ANC was truly listening to the voice of the people.

The Chairperson interjected to note that the Minister was representing the Executive, and this was not to be seen as an ANC presentation. He urged Members to engage on the Bill itself.

Mr Bloem replied that he was responding to comments by the Director General and Minister and he did not think he was out of order.

The Chairperson said that the Minister had merely made the comments in the context of wishing the ANC well on its centenary.

Mr Bloem insisted that he be given the opportunity to engage on the ANC processes.

The Chairperson again asked Mr Bloem to focus on the Bill.

The Minister urged that all parties must converge when considering legislation that would support the public good. He noted that the ANC remained the same body, although he confirmed that he was not representing the ANC today, but Cabinet.

Mr Bloem raised a point of order, objecting that he had been prevented from addressing the question of the ANC.

The Minister said that he had raised this point in order to answer, but would engage with him outside of the meeting.

Mr Bloem asked if the Classification Review Panel would be made up of independent people, who were not involved in any state body.

Minister Cwele responded that this Panel was an important innovation introduced by the NA’s ad hoc committee, to enhance the constitutionality of the Bill and add another check and balance. The criteria for the members of this Panel were set out in the Bill. The JSCI would apply its mind fully when selecting the members, who would need to be considered by the House for recommendation for appointment.

Mr Bloem asked who could classify information. He thought that it would be dangerous to leave this in the hands of an individual. He asked if all ministers must classify or declassify information.

(This question was answered later by Mr Dlomo, during his presentation on the processes).

Ms N Ntwanambi (Western Cape, ANC) expressed appreciation for the substantial media presence and would like to see more media attention focused on other NCOP committees. She asked Members to bear in mind that this was not an entirely new process, but a continuation of the National Assembly process. Whilst there had been substantial agreement on much of the Bill, she wanted to know which parts of the Bill were considered by its opponents to be unconstitutional, since this Committee should look critically at those areas.

Minister Cwele noted that whilst the majority of Members in the NA did not believe that there was anything unconstitutional in the Bill, and had passed it, the Ministry had responded twice on the points raised in the National Assembly. Criticism had been levelled at the original draft of the Bill, in relation to the application of the Bill to all organs of state, the use of “national interest” as the basis for classification, and the broadness of information. The views of all South Africans had been taken into account. Reference to “national interest” were removed from the Bill, because it was accepted that the young democracy of South Africa still needed to debate this concept further, and “national security” became the criteria for classification. The clauses dealing with commercial protection of interest were also removed. This emphasised that the Ministry was intending to ensure that the Bill was constitutional. However, there were two relatively minor issues that remained. He appreciated the close working of all parties but noted that opposition parties at the end retained their objections that neither a public interest defence, nor a public domain defence, were included.

Ms Ntwanambi noted that the JSCI was made up of members of both the National Assembly and National Council of Provinces. She thought that perhaps the reference to “National Assembly” in the Bill was incorrect, and thought that “Parliament” should be used instead.

Mr D van Rooyen (Free State, ANC), agreed with this.

The Chairperson added that the Constitution, in some instances, referred to “Parliament” and sometimes to the “National Assembly”. He agreed that in this Bill, “Parliament” should be used consistently.

The Minister said there was no intention to minimise the input of the NCOP. The Constitution set out which competencies would lie with each House, and the NA already appointed several structures. There would be further engagement on that issue.

Mr A Matila (Gauteng, ANC) noted that some criticism of the Bill had been given by foreigners, not South African citizens.

Mr van Rooyen asked why there was foreign interest, as this was essentially a domestic issue.

Minister Cwele responded that foreign interest need not necessarily seen as negative. South Africa was setting some precedents, and countries learnt from each others’ experiences. The Ministry had given a presentation on best international practice, and he stood by what had been said. He also noted, in this regard, that the public interest defence did not apply anywhere else in the world – in Canada, although there was a limited public interest defence, this was limited to security service members, and that country had no Protected Disclosure Bill. 

Mr R Lees (KwaZulu Natal, ANC) noted the reference to increasing espionage and the need to introduce mechanisms to deal with this. The Business Day of 17 November 2011 quoted the Minister as saying that those who opposed the Bill were proxies for foreign spies. He asked if the Minister had been referring to the Right to Know Campaign (R2K), whether there was any evidence to support this view, and whether the R2K was under surveillance by the Agency.

Ms Ntwanambi asked that the Chairperson declare this question out of order.

The Chairperson said that he had not raised this, because he thought the Minister may wish to respond on that, but Members should not be unruly or take the Committee in a negative direction.

Minister Cwele said that this report did not relate to a press statement, but a speech he had made in the National Assembly. He had not called any organisation a proxy of foreign spies. He paraphrased that he had said that some people may feel very aggrieved with the Bill. The first group who would feel aggrieved would be corrupt officials who sought to hide their maladministration through classification, or who sold information to foreign states for their own benefit, to the detriment of South Africans. The second category would be those foreign spies who had in the past found it easy to access sensitive state information, and the third category would be those who engaged in the sale of false information, or information peddling. None of these people would, however, come out and express their opposition to the Bill. He could not comment on the interpretation that the media had placed on his statements. He would make his speech, and a copy of the Hansard, available to Mr Lees.

Mr Lees accepted that the Minister had been misquoted.

Mr Lees said that the term “information peddling” was used in the presentation, but did not appear in the Bill, and he asked if this activity would henceforth be criminalised.

Minister Cwele confirmed that information peddling was not currently criminalised. Information peddling was of growing concern, and he reminded Members of incidents of false information being spread in 1998, to cause unrest. It was not currently criminalised, but the Bill would redress this.

Mr van Rooyen thought the penalty for information peddling was not severe enough.

Minister Cwele said that Cabinet had applied its mind fully to the question of minimum and maximum sentences. The NA was opposed to having minimum sentences imposed, other than for espionage. He outlined the context of the differing sanctions, stressing that they were linked to the severity of the impact of the crime, according to whether the information was top secret, secret, or confidential.

The Chairperson referred to clause 14(j), which stated that classification must be in place only as long as that protection was necessary, and asked what would inform that decision.

Minister Cwele stressed that reasons for classification would need to be given in writing.

Mr Dlomo asked for permission to speak to the business process of aligning this Bill to PAIA, and tabled a flowchart setting out what would follow from the time that a person requested access to information under PAIA, which would be the “gateway” to all requests. Information that fell into the “can be given” category would be provided. However, if a request was made for information that was classified, the Bill required an automatic status review. If the information was not correctly or justifiably classified, it must be declassified and the information provided. However, if the head of the organ of State thought the information should not be released, the request would be refused. Internal appeal processes could be followed, and finally the requestor could approach the court. If the court decided that the information was correctly classified, that information would remain protected until destroyed in keeping with the Archives legislation. He noted that some information must not be given at all to the public– for instance, Cabinet documents – unless declassified properly under PAIA.

Mr Dlomo reminded Members that there was a public interest override. If a person made a request, and it was determined that the information was classified, there were nonetheless two processes that could be followed. A requestor would not initially know that the information being requested was classified. However, the official who found out that the information was classified must start the process for automatic review of that information. If the information related to a serious imminent public danger or environmental damage, that information must be provided in 14 days. If access to the information was refused, the requestor of the information could bring an urgent court application, and if the court ordered a release, then it would be released. This type of information had a short life-cycle and the process would ensure that the system was responsive.

If the information related to something that showed corruption, the official had a maximum period of 30 days to review and provide the information. This was compulsory where it was clear that there had been falsification of information. If access to that information was denied by the official, an internal appeal process could be followed, or alternatively the urgent court application process would apply.

Having clarified the process, Mr Dlomo then responded to questions asked earlier. Authority to classify and authority to declassify was exercised by the head of the organ of state, and not the relevant Minister. The Ministers played a role in the appeals, both in terms of the Bill and PAIA. In order to ensure that the Bill was constitutionally sound, and ensured a separation of functions, the responsibility for the review of classified information rested not with the Minister, but with the Classification Review Panel, which would review all decisions about classification. He reminded Members that any classification must be clear, justifiable, must advance national security and not be in conflict with the provisions of the Bill.

Mr Dlomo said that he had not provided specifics about the debate on issues in the NA, as it he had not been asked to do so.

The Chairperson agreed, and asked that Members confine their questions to the Bill, not focus on the debate in the NA. Whilst this Committee could certainly confer with its NA counterparts, it would do so only if this was relevant, and this Committee must consider the Bill independently, not act as a “rubber-stamp” for the NA. It was for this reasons that the NCOP was proceeding to its own public hearings.

The Chairperson said that ordinary South Africans faced difficulties, including cost considerations, in accessing the justice system. He questioned why an ordinary citizen should need to fund an application himself, and why the Classification Review Panel could not deal with that issue. He had no doubt that this would be one of the questions raised in the public hearings. Other questions might ask how the Bill protected ordinary South Africans, and how it enhanced national security. He also wondered if the Bill would weaken a whistle-blower’s capacity to report corruption. He noted that the Bill had been tagged as the “Secrecy Bill” and this had raised serious doubts in the minds of the public whether it was really seeking to enhance the protection of national security, whoever had coined this misnomer.

Mr Bloem expressed his agreement on the point that the NCOP Committee must deal with this afresh. However, he would ask the rationale behind the levels of penalties during debate in the NA.

Mr Lees wanted to build on the important points of the Chairperson. He realised that a requestor of information would often know that the information existed, but asked how a person could apply for release of information that was not specifically known. He gave a hypothetical example of a newspaper reporter, who came into possession of classified information that seemed to reveal corruption, and asked what procedures would have to be followed before that information could be published.

Minister Cwele answered that a journalist or Member of Parliament would not be criminalised if s/he had merely obtained information. This Bill was not about regulating the media. If the person coming into possession of the information returned it in the correct manner, s/he would not be prosecuted. Any wrongdoing revealed from a reading of that document should also be reported, so that the corruption that classification might have hoped to hide could be successfully addressed.

Minister Cwele agreed that a number of important issues had been raised. It was difficult for the Department to predict what may happen in the public domain from day to day. This Bill was not intended to deal with all the ills in society, but was limited to issues that may affect national security. The issues of access to justice were dealt with by other departments and laws, although this Bill also did include provisions that would shorten time frames where necessary. The Minister of Justice had already made substantial progress on improving access to justice, and government was trying to extend real access to rural areas. Other oversight structures that would not involve substantial costs, such as the JSCI, the Inspector General of Intelligence, and other oversight structures that would enhance accountability of the security structures, were in place.

Minister Cwele said, in answer to the question how the Bill would benefit ordinary South Africans, that the debates had not focused on protection of valuable information. Unhindered access to information by anyone could enable the commission of crime, if people were able to get and falsify birth certificates, marriage certificates or “borrow” names and identities. National security was for the public good. The extension of the state security doctrine to ordinary citizens meant that people should be free from want, and free from fear of attack. If citizens took their responsibilities seriously, this would enhance national security, and this would include ensuring that any information that might be leaked was returned to the proper authorities. He stressed that no good citizens would commit the crimes now defined in the Bill. It was often those in state departments who leaked information, and it was correct that their wrongdoings be exposed. This Bill could not condone the commission of crime. The Minister agreed with the remarks on the incorrect dubbing of the Bill, and urged that those engaging in debate should remain rational, should not spread false information or impressions, and that the correct title of the Bill did emphasise that state information was being protected, and that the Bill was not about secrecy. This Bill was balancing the openness of a democratic society against the need for protection of national security, which was equally necessary to the advancement of democracy.

Mr Dlomo added that he would like there to be recognition that this Bill would protect the valuable information of every citizen, and would enable people to access grants, education, or any other licences or government services, by protecting and providing mechanisms for valuable information to be verified and kept safe. The Bill would enable people to live in peace and security because it provided a way to prevent civil unrest, and address espionage and address trans-national crime, by dealing correctly with sensitive information. All of these points needed to be emphasised.

The Chairperson said this presentation would be very helpful in the engagements with the public. It would be useful if Departmental officials could also attend the public hearings. Members would be using those hearings to listen to the views of the public, and parties’ views would be expressed later in Committee deliberations.

Other business
Adoption of Minutes
The Chairperson suggested that the Minutes of 17 January 2012 should be adopted during the next meeting, and said, in answer to Members’ queries, that the Committee might arrange for a meeting outside of the Parliamentary precincts, so that this would not necessarily cause delay.

Committee programme
Two letters from Mr Lees were tabled, and the Chairperson pointed out that some of the issues were seemingly already covered in the previous meetings. He suggested that the work of the Committee would be enhanced if these points had been raised during debate in the meeting. In particular, it had been suggested that provincial whips should identify suitable areas for the public hearings.

Mr Lees apologised for the incorrect dates on his letters, and said that whilst it was true that some of the issues had been debated, there had not been specific agreement on the venues. Furthermore, whilst he agreed that parties should not agree matters in a meeting and then seek to open the debate again in correspondence, any party should be able to raise concerns or issues by letter, and nothing in his letters contradicted any decision of the Committee.

Mr S Mazosiwe (Eastern Cape, ANC) confirmed that a decision had been taken that the provincial whips should provide input on the venues. For this reason, he took issue with the reference to “arbitrary decisions” in Mr Lees’ letter, and did not think this was correct.

Ms M Boroto (Mpumalanga, ANC) thought that the Committee had in fact discussed the issues that Mr Lees raised. The Committee had decided to cover urban and rural areas, and she did not think it should be asked to choose elitist areas.

Ms Ntwanambi said that it was not possible to use the same formula for all provinces. She stressed again that this was a continuation of a process. She did not think it was correct to debate whose constituency would be most affected. She urged that advertising must take place immediately, in both the national and community newspapers. She found it strange that a budget was now being requested by Mr Lees.

Mr Matila also thought that all the issues raised in the first letter had been debated. The revised programme addressed concerns raised in relation to the Gauteng hearings.

Prince M Zulu (KwaZulu Natal, IFP) agreed with the necessity to involve the provincial whips.

Mr Bloem noted that some of the public hearings were scheduled for Thursdays, which were generally caucus days. He asked if it was possible to reconsider these days.

Mr T Mofokeng (Free State, ANC) indicated that one date clashed with the Free State Premier’s address.

The Chairperson said that he had asked that Members be released from caucus meetings where there might be a clash, as changing the schedule could create logistical travel difficulties. He would try to see if some solution could be found in relation to the Premiers’ addresses, although he personally had explained to his Premier that he would be unable to be present. This Bill was a one-off, and was subject to stringent deadlines.
Members, in debating the issues further, expressed their views that the State of the Province addresses were vital to the work of the Committee, but also agreed that it was important to meet the time-deadlines for the Bill.

The Chairperson asked that Members convey any particular difficulties to the Committee Secretary, so that consideration could be given to changing the deployment of Members to various areas. Venues would still be finalised, with input of provinces. He noted the opposition parties’ decisions on who would attend each group’s hearings.

The meeting was adjourned.


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