Protection of State Information Bill [B6B-2010]: Shortlisting of submissions

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

14 March 2012
Chairperson: Mr R Tau (ANC; Northern Cape,)
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Meeting Summary

The Committee met to discuss which of the entities or individuals who had made written submissions should be invited to make oral submissions, and agreed at the outset that it would be useful to try to categorise the submissions, and that those who found favour with more than one party should be carried forward to a shortlist. They would give consideration to whether anything new would be added to the process by the making of oral submissions. Each of the parties presented its shortlist. Members debated the principle whether a party represented in the NCOP should be allowed to make a separate oral presentation to this Committee, and the majority decided that it should not. There was debate whether the ACDP, who was not represented at the NCOP, but was represented at the NA, and participated fully in that process, should be allowed the opportunity to make an oral presentation. Members were not sure what the NCOP Rules prescribed. The ANC and IFP felt that since this party had already participated and had voted upon the version of the Bill now before this Committee, no oral submissions should be taken, but the DA took the view that no harm would be served. The ID took the view that although the written submission was good, it would not add substantially to matters raised by others. COPE suggested that a precedent had been set in the public hearings on another Bill, when ANC, the ANC Youth League and the SACP had given oral representations to the NA, but other Members were not convinced that this was a binding or correct precedent for this house, and the majority of Members decided that no oral presentation be sought. Members also debated whether oral submissions from several media houses or bodies could be allowed, with some making the point that they represented different sectors of the media, and others noting that the debate should not become overwhelmed with media interests, which were also being aired in other forums. Members also debated whether a person who had made a very useful submission at the provincial hearings could be invited, and the Chairperson would check whether a written submission had been received from him, in view of divergent views from the Committee whether he could be invited.

After debate, the Committee agreed that the following be invited to make oral submissions (the numbers are references to written submissions in the Members’ pack):

Public Protector 259; George Bizos / Legal Resources Advice Centre 229; SAHRC 168
Nelson Mandela Foundation 21; COSATU 237; SANEF 251; Helen Suzman Foundation 224; Law Society of South Africa 254; Catholic Bishops Conference 233; Jewish Board of Deputies 103; Open Democracy Advice Centre 95; Alternative Information Centre 236; Corruption Watch 238; NUMSA 249; Diocesan Council of Churches 132; Media Monitoring Africa 199 (with 200); Higher Education South Africa; Right2Know 228; Violence Monitor 243; and possibly Mr Peter Maluleke.

It was agreed that 27 to 30 March (until 14:00) would be set aside for the hearings, with an hour allowed for presentation and debate.

Meeting report


Protection of State Information Bill: Shortlisting of submissions
Mr Gurshwyn Dixon, Committee Secretary, reminded the Members that provincial public hearings had been held on the Protection of State Information Bill (the Bill) for people who would be unable to travel to Parliament. Advertisements had been place in the national media, requesting written submissions, which the Committee was then intending to shortlist to extend invitations for oral submissions. 263 submissions were received.

Mr D Bloem (Free State, COPE) commended the Committee Secretary for the work in compiling the submissions. He suggested that he read out his list of about 20 submissions>

Mr L Nzimande (KwaZulu Natal, ANC) questioned the process and suggested that the parties should indicate why they were making the suggestions. He also thought that it was possible to put submissions into broad categories according to their content.

Ms N Ntwanambi (Western Cape, ANC) supported Mr Nzimande’s comments, and thanked Mr Bloem for compiling a list.

Mr R Lees (KwaZulu Natal, DA) said that the DA had also compiled a shortlist, but would like to make proposals, irrespective of the category into which their submissions fell.

The Chairperson agreed that a number of similar issues had been raised, and suggested that the submissions could perhaps be categorized as relating to general matters, constitutional matters, public interest defence, sentences and application.

Mr A Matila (Gauteng, DA) agreed and said that perhaps the suggestions should be made and then grouped as there may be other categories also.

Mr D Worth (Free State, DA) suggested that the parties merely submit their names.

The Chairperson thought that Mr Matila’s suggestion could be useful, but quipped that even if there were submissions that, for instance, insulted this Committee, the Members may still wish to interrogate the points raised.

Mr Bloem set out his suggestions for those to be invited to make oral submissions as:

Public Protector 259, Adv George Bizos 229, South African Human Rights Commission 168
Nelson Mandela Foundation 21, Congress of South African Trade Unions (COSATU) 237, Congress of the People 262, South African National Editors Forum (SANEF) 251, Helen Suzman Foundation 224, Law Society of South Africa (LSSA) 254, Catholic Bishops Conference 233, Jewish Board of Deputies 103, Open Democracy Advice Centre 95, Media Monitoring 199, Lekona Africa Nguni 205, African Christian Democratic Party (Steve Swart) 232, Dr Jeffrey Mabelebele 228, Media and Information Society 207, Alternative Information Centre 236, Mofulane Ndimba 19, and Law Race and Gender Research Unit 256.

Ms M Boroto asked for a discussion on the nomination of political parties.

Ms Ntwanambi gave the ANC’s submissions. The ANC agreed on submissions being taken from the SAHRC, Media Monitoring Africa, Helen Suzman Foundation, Higher Education South Africa (HESA 228), Legal Resources Centre (George Bizos), Catholic Bishops Conference, COSATU, SANEF, Public Protector, Nelson Mandela Foundation, Jewish Board of Deputies, Open Democracy Advice Centre

The ANC then named others whom it felt should be included, as:
Grant Geduld 8, Nkwame Cedile 234, Diakonia Council of Churches 132, Corruption Watch 238, Mary de Haas 243, NUMSA 249.

Mr Matila said that during the hearings in Pretoria, Mr Peter Maluleke had raised some points of particular importance to the media, which brought a different dimension. Even though his written submission was not included in the batch circulated to Members, he thought that it would be very useful for him to be invited to make an oral submission and given clarity on some points he had raised. He suggested that his name be added to the list.

Mr Lees said that this was an ad hoc Committee and thus could decide how to deal with such matters. He was present when Mr Maluleke gave his presentation, and would support an invitation to him to make an oral submission in Cape Town.

Mr Bloem indicated his opposition. The cut off date for written submissions had passed, and if Mr Maluleke failed to make a submission, he did not believe he could be accommodated.

Prince M Zulu (KwaZulu Natal, IFP) agreed with Mr Bloem.

The Chairperon understood the principles that Members were trying to establish. However, he thought this Committee should not deny itself the opportunity to interact with anyone who could enrich its work. The Committee had said, during the provincial hearings, that people who raised substantive issues should present them in writing, and had asked Mr Maluleke to do so. He asked the Committee Secretary to check whether any written submission was made. He agreed that this Committee could be flexible, as long as it did not compromise the institution of Parliament, advanced its work, and as long as Members agreed on the procedure to be followed.

Mr Worth presented the suggestions of the DA. He agreed that oral submissions should be requested from:
Nelson Mandela Foundation, Jewish Board of Deputies (except that the DA would prefer to focus on submission 104), SAHRC, Helen Suzman Foundation , Dr Jeffrey Mabelebele 228, Higher Education South Africa 229, ACDP 232, COSATU 237, SANEF, Print Media 252, Law Society of South Africa 243, and Catholic Bishops Conference.

The DA also suggested that oral submissions be invited from Springbok Press / Tyson and Associates 184, Freedom of Expression and Access to Information Institute 200, Highway Africa (Prof Jane Duncan) 207, Freedom of Information Programme 219, Violence Monitor (Mary de Haas) 243, Right2Know campaign 258, and Delft Integrated Network 248.

Prince Zulu submitted the IFP suggestions for oral submissions as:
Nelson Mandela Foundation, Diakonia Council of Churches 95, SAHRC, Media Monitoring Africa, Helen Suzman Foundation, Legal Resources Centre 224, South African Catholic Bishops Conference, COSATU and Public Protector.

Mr J Gunda (ID, Northern Cape) confirmed that his list was more or less the same as the others, and said he would go along with the DA’s list.

The Chairperson asked the Committee to agree now on broad issues. Firstly, he noted that this Committee was a multi-party ad hoc committee, set up in terms of the National Council of Provinces Rules, and represented all parties in the NCOP, according to how many seats they had won. He wondered if it was, from an organizational and political point of view, correct to invite a political party to make oral representations, if it was already represented in this Committee. Secondly, he wanted Members to consider if parties that were not represented in the NCOP, but which were represented in the National Assembly (NA), could make an oral submission, in terms of the NCOP Rules.

Ms Ntwanambi wanted to stress that this was not a new process, as this Committee was dealing with a Bill that had been amended and adopted by the NA in the previous year. For this reason, she did not believe that any party political oral submissions should be allowed, since the parties had participated in, interrogated and voted upon the Bill at the NA.

Mr Bloem said that the Rules of Parliament should never be bent to suit a political party. He reminded Members that during the public hearings on the South African Police Service (SAPS) Amendment Bill (which disbanded the Scorpions), the ANC, the ANC Youth League and the SACP had all been permitted to make oral submissions.

Ms Ntwanambi asked if this was during public hearings, or at a Committee meeting.

Mr Bloem answered that exactly the same shortlisting process as this Committee was now following had been followed also for the SAPS Bill, and those parties were shortlisted to give oral submissions.

Mr Matila understood Mr Bloem’s point, but said that Mr Bloem would surely present COPE’s points in the Committee process, and this should be a general principle, unless the party represented on the Committee claimed not to have capacity. However, it must also be remembered that the parties not represented in the NCOP had made submissions to the NA, and this Committee could also give consideration to points raised in the NA.

Mr Lees said that if there was no clear rule, it was unlikely that the Committee would get consensus. At the Khayelitsha hearings, an ANC member was told that he would get an opportunity to speak “at a later stage” but Mr Lees was not sure when that “later stage” would be. He said that the DA would put its amendments and motivate them through its Committee Members, but he would not like to exclude COPE. If a precedent had already been set, he thought that COPE should be allowed to present. In respect of the ACDP, he suggested that the DA was in favour of it being invited to give an oral submission, but if other Members were not, they should simply express their opposition, and that might be the simplest way to deal with the issue.

Mr Nzimande said he would not like to be bound by a precedent set in a procedure to which he had not been a party. The ANC Alliance was a loose arrangement and the fact that it had presented during the SAPS Amendment Bill process should not bind this Committee. He was not convinced as to why the ACDP should be invited to give an oral submission, and was absolutely adamant that COPE, being already represented in this Committee, should not.

The Chairperson felt that Mr Lees’ suggestion had taken the discussions forward, and noted that it was only Mr Bloem who had suggested that COPE be asked to give an oral submission, so that Members could, on that basis, agree that it not be included in the shortlist.

Mr Bloem said that he would go along with this decision, if it was taken on a democratic level. He started to speak of the procedure in the SAPS Amendment Bill.

The Chairperson intervened to ask him not to deal with that.

The Chairperson noted that two parties had recommended the ACDP be included. He did not want to proceed to a vote unless absolutely necessary and asked if Members could reach consensus.

Mr Lees asked if he could motivate for the inclusion of an oral submission from the ACDP. Whilst it was correct that the ACDP was represented in the NA, there had been significant amendments in the process and he saw this as a new Bill. He was not asking that the ACDP be allowed to deliberate with the Committee.

Ms Ntwanambi raised a point of order that this was not a new Bill and the ACDP had voted on the version that was currently before this Committee.

The Chairperson ruled that this point of order be sustained.

Mr Lees then suggested that the ACDP should be seen in the same light as other entities who were not represented in the NCOP, and not automatically excluded.

Mr Bloem supported that suggestion. 

Mr Matila said that the ACDP would no doubt repeat all the arguments it had raised in the NA, where it had been part of the process.

Ms D Rantho (Eastern Cape, ANC) agreed that this was not a new Bill, that the ACDP had made submissions to the NA, and that a bad precedent would be set should its oral submission be allowed.

Ms Boroto said she agreed with this point, and proposed that Members vote on the issue.

The Chairperson said again that he did not want this point to be voted upon. He understood Mr Bloem’s argument on the SAPS Amendment Bill, but made the point that it could well be questioned whether that procedure had been correct. He suggested that Members could agree that he be allowed to check the Rules, but also asked for the ID and IFP viewpoints.

Prince Zulu did not believe the ACDP submission should be heard.

Mr Gunda felt that although the ACDP submission had raised several good points, he felt that there was nothing specific that needed to be debated by way of an oral submission.

Mr Bloem said that if a majority decision was taken, he would fall in with it, provided it was taken in a democratic process.

The majority of Members agreed that the ACDP not be invited to make an oral submission.

Ms Ntwanambi noted that the two submissions 199 and 200 could be read together, as 200 was essentially an annexure to 199. Members agreed.

Mr Bloem and Mr Matila raised the point of Mr Maluleke again, but, after discussion, the Chairperson made the point that the Committee could discuss the issue in a closed session.

Mr Gunda said he had compared the lists and some seemed to be common.

Mr Lees thought it would be useful for the parties to indicate those who should not be invited.

Mr Matila commented on submission 258, and said that Right2Know had made submissions at all the provincial public hearings and he thought that it was unlikely to say anything new, so there was no point in inviting this entity again.

Mr Bloem felt that it should be included.

Mr Worth agreed, saying that the DA was not looking at whether it had made submissions before, but at the contribution these submissions could offer to changing the Bill.

Mr S Masoziwe (ANC, Eastern Cape) thought that Members should, in principle, give consideration to whether anything new was likely to be raised in oral submissions, and he agreed with Mr Matila that it was unlikely that new points would be raised.

Mr Bloem suggested that if this was the motivation for suggesting that Right2Know not be invited, then Mr Maluleke would also not need to be invited, as he would probably also not raise any new points.

Ms Ntwanambi said that the ANC was prepared to be flexible on submission 258.

Ms Boroto said that the ANC would withdraw its proposal to include Grant Geduld 8, as his submissions were more to do with internal operations than with the Bill itself.

Ms Ntwanambi questioned if other parties had suggested Corruption Watch. She then read out from the COPE list, and listed those whom she thought had been suggested by only one party as submissions numbers 199, 205, 228, 207, 205, 232 228, 207, 19 and 256. She was not sure if the DA was supporting the Alternative Information Centre 236.

Mr Bloem indicated that if there was no support for Lekona Africa Nguni 205, he would not pursue it.

Mr Lees commented on submission 228 and noted that although this was written by Dr Mabelebele, it was representative of the views of a number of higher education institutions, and made valuable contributions. He requested other parties to agree to it.

The Chairperson indicated that other parties had agreed to oral submissions from HESA.

The Chairperson asked what the difference was between the submissions from Media Monitoring Africa and SANEF

Mr Bloem thought that the opinions were different.

The Chairperson said that this was a matter of opinion. He thought that they could be argued as dealing with the same issues in the Bill. He wondered if both should be called to give oral submissions. Both dealt with protection of the media and freedom of expression.

Mr Lees said that both were from the same broad sector but they were different organisations and their focus was slightly different. He thought both could offer valuable input, and urged that both be accepted; this could only be of advantage in the deliberations.

The Chairperson said that he was specifically focusing on this because he would not want to see the Committee preoccupied with media issues. There were other forums dealing with media protection and freedom of expression. The main areas of emphasis were territorial and sectorial, and whilst he hastened to say that there was nothing wrong with that, he felt that editors were key to the operations, and he did not think that the media organisations would really offer anything different. He did not want this Committee to become preoccupied with the interest of the media and lose focus on other areas of the Bill.

Mr Bloem said that the members of the media were also citizens of the country, and he thought that they needed to be included. The media debate would go on. However, he felt that the Committee should allow oral presentations from both organisations.

Ms Ntwanambi said that the ANC’s choice was based on content, and she also felt that SANEF and other media houses had spoken to the same content. She thought the Committee needed to focus on oral submissions that would offer different perspectives.

Mr Bloem quipped that if this was so, then surely Mr Maluleke’s issues would also be regarded as covered.

Mr Lees thought that the Committee was getting sidetracked. These were merely two submissions out of more than 230, and the media played an important role. He did not feel it was correct to suggest that the Committee discussions would be “dominated” by the media, and said there was a need to look seriously at the need for the provisions, including the totality of the impact on society.

Mr Matila raised a point of order, saying that it was the media who had been responsible for misleading information.

The Chairperson interrupted him and said this was not a point of order.

Mr Lees said that he was trying to make a serious point and appealed to his colleagues to treat the matter seriously. This Bill would have a definite impact on the media.

Mr Nzimande asked to raise a point of order, but the Chairperson said that he did not want further discussion on this issue at the moment. He would not like to see anyone being excluded and therefore suggested, and Members agreed, that both SANEF and Media Monitoring Africa would be invited to make oral submissions.

Ms Ntwanambi said that the suggestion to include Mofulane Ndimba 19 would not be pursued, and Members agreed.

The Chairperson asked for clarity on why the Law, Race and Gender Unit submission was raised.

Mr Bloem said that this submission had raised some critical issues in relation to protection of gender.

The Chairperson questioned this, admitting that he had not read this particular submission.

Ms Ntwanambi said that she had read the submission, which was an opinion paper but did not speak to the issues raised in the Bill.

Mr T Mofokeng (Free State, ANC) said that the submission appeared to have found its way into this pack by mistake as it essentially spoke to the Traditional Courts Bill, and suggested it be discounted.

The Chairperson called for a short adjournment to finalise the shortlist. On resumption of the meeting, he indicated that the following would be invited to make oral submissions, on the basis that they had been included in the shortlists of more than one party:

Public Protector 259
George Bizos / Legal Resources Advice Centre 229
Nelson Mandela Foundation 21
Helen Suzman Foundation 224
Law Society of South Africa 254
Catholic Bishops Conference 233
Jewish Board of Deputies 103
Open Democracy Advice Centre 95
Alternative Information Centre 236
Corruption Watch 238
Diakonia Council of Churches 132
Media Monitoring Africa 199 (with 200)
Higher Education South Africa
Right2Know 228
Possibly Mr Peter Maluleke

Members raised a query on Mary de Haas (Violence Monitor) 243, saying that it had been proposed by more than one party and should be added. This was agreed.

Mr Lees said that Ms Ntwanambi had mentioned some entities who were not duplicated in the parties’ lists, but said that some that she had failed to mention were on several lists, such as Open Democracy Advice Centre 124.

The Chairperson explained that there was a duplication in the packs to Members, and ODAC was included in the shortlist, as submission 95.

Mr Gunda asked for, and received confirmation from the Chairperson, that Right2Know was on the list.

Mr Lees questioned the exclusion of Springbok Press / Tyson and Associates 185, saying that this had not been discussed.

Mr Matila pointed out that there had been discussion on the media and Springbok Press were a media group, so individual submissions were not needed.

Mr Lees took the point.

MR Lees then raised Advocacy and Training Outreach 219, saying that no objections had been raised.

Mr Bloem thought that there had been a full debate on the submissions, and this was attempting to raise the debate again.

The Chairperson reminded all parties that they had been asked to use the adjournment to check the lists.

Mr Lees explained that his list had been submitted, orally and in writing, but Ms Ntwanambi was supposed to raise all entities who were not common to several lists, and he said that because they had not been raised by Ms Ntwanambi, this might suggest that they had not been rejected by the Committee.

Mr Masoziwe suggested that Mr Lees was now attempting to “smuggle” in some new issues, which he had not raised when other areas of disagreement were raised.

Mr Lees responded that many of those now included on the shortlist had not been discussed either but were merely included on the basis that they were common to more than one list.

The Chairperson said he would not like a wrong message to be sent out and asked that Mr Lees detail those of concern.

Mr Lees confirmed that these were submission from Advocacy Training Outreach (Tammy O’Connor) 219 and Delft Integrated Network 248. He accepted that other media organisations would not be included.

Mr Matila said no other party agreed with submission 248 being included.

Mr Bloem thought that no harm could be served by including these two bodies.

The Chairperson said that the Committee should not lose sight of the principle that Mr Matila had raised, which was in fact introduced by Mr Lees himself, that if a name was not supported by more than one political party, it would not be included in the shortlist. All names on the shortlist had been supported by more than one party, and he asked Members to be consistent.

Members agreed to the shortlist

Committee programme
The Chairperson said he had originally anticipated that three days could be set aside for the hearings. It had been suggested that Members visit their constituencies from 19 March and return for hearings in the week of 27 to 29 March. He suggested that the hearings shoul start each day at 08:30 and run to 16:00. However, there were more oral submissions than originally suggested.

Mr Masoziwe suggested that rather than extend into another full day, the hearings could end later on each day.

Mr Bloem felt that the public hearings should run over four days, with each presenter to be allowed an hour to present.

The Chairperson noted that most submissions raised two or three areas of emphasis, except for those of George Bizos and Public Protector, and he would have thought that 20 minutes, or at maximum 30 minutes, would be sufficient for a presentation. This would encourage presenters to focus on the main issues. He would not like presenters to come up with an entirely new Bill or make submissions on every clause. The Chairperson thought it would be workable to schedule three presentations each morning and afternoon.

Mr Lees urged that the Committee should not restrict anyone who had valuable input to make, and therefore suggested that whilst it would be suggested that the presentations should last for 30 minutes, any presenter who felt that this would be insufficient should be asked to indicate this, and the Committee should try to allow extra time.

Mr Matila thought one hour for the presentation and questions was acceptable, and said that the Chairperson would manage the process. Many people making submissions in the provinces had not honed in on the Bill itself. The Committee could sit later in the afternoon if necessary.

Ms Boroto agreed with a time period of one hour for each presentation but requested a 09:00 start.

The Chairperson asked what the Committee should do if it found that three days was not sufficient. The Committee must do full justice to the issues.

Members raised several points when debating this point. Mr Gunda thought the Committee could make a decision as and when the need to do so arose. Mr Bloem proposed that another day be set aside now. Mr Lees urged that presentations not simply be shifted from one day to another.

The Chairperson agreed that people would be invited to make their submissions on a specific day and time. However, he asked, and Members agreed, to provisionally set aside Friday 30 April, until 14:00.

Mr Lees hoped all Members would seek permission from their Party Whips to attend to meetings during the Constituency Period. He had sought, and been granted permission, in respect of the earlier dates, which had now changed, and anticipated that permission would be given for these dates.

Mr Bloem, Mr Gunda, and Mr Mazosiwe indicated that they had checked with their Whips, and would be available.

The Chairperson summarised that the Committee had agreed on 27 to 30 March, and on the submissions in the shortlist, with Mr Maluleke possibly to be included.

The meeting was adjourned. 


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