Protection of State Information Bill: public hearing Day 1

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

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

All the entities making submissions on the first day of the public hearings in Parliament, on the Protection of State Information Bill, saw the Bill as an improvement on the current Act, but noted that further refinements were still needed. All submissions raised and discussed the need for a public interest defence, and proposed wording was put forward by some presenters. All submissions also raised objections to clause 1(4) which, by ousting the primacy of the Promotion of Access to Information Act (PAIA) was seen as in conflict with the Constitution.

Open Democracy Advice Centre (ODAC) described a recent matter in which it had become involved. A medical aid administrator working with the State Security Agency had become aware of irregularities, and had reported these internally. Nothing positive transpired, and she then approached ODAC for assistance, and eventually the media, who published the allegations. Had the Bill, as presently worded, been in force, anyone having possession of information pertaining to the State Security Agency, including staff in the Office of the Auditor-General, and possibly also readers of the newspaper articles, would have been liable to prosecution, even if the whistle-blower was protected. However, the whistle-blower clauses were problematic in the Bill, because they had a reverse onus of proof. These anomalies could be resolved by inclusion of a public interest defence. No other country in the world criminalised possession of information, but the point was made that this was related to the fact that they also did not criminalise mere possession. It was stressed that if a public interest defence was carefully crafted, it was not likely to lead to “mass disclosure” (a point reiterated in later submissions). Possible inconsistencies with the PAIA and the Protected Disclosures Act (PDA) were outlined. The wording in relation to “economic, scientific and technical secrets” needed to be tightened, to ensure that it was allied to defence and security of the republic. ODAC also felt that the Classification Review Panel could have a greater role, and perhaps the public should be able to approach the Panel directly.

The South African National Editors Forum (SANEF) and Print Media South Africa (PMSA) made a joint submission, stressing that the media gave effect to the public’s right to know. Transparency, openness and accountability were founding principle of the Constitution and were essential to transformation, and the Bill must be tested against the guarantees set out in the Constitution. Journalists should not be forced to choose between following the dictates of their conscience and publishing information that the public ought to know, or taking the “safe” path to avoid being prosecuted. The submission emphasised that this defence would not give free rein to journalists to publish anything, as the defence would be carefully crafted to achieve a proper balance between the right to expression and the legitimate interest of national security. Concerns were also expressed on the overlapping offences and penalties, as well as the very stringent penalties. There was a recommendation that clause 19 be replaced with clause 28 of the originally-tabled Bill, alternatively that clause 19(3), which was far too narrow, must be corrected, that time periods must be prescribed (probably 30 days, as in PAIA), and that the wording for the public interest override needed to be changed. Two examples were cited that pointed to the need for the public interest defence. In addition, SANEF and PMSA moved for the inclusion of a public domain defence, which was explained with reference to overseas cases. Further problems were highlighted in relation to the wording of clause 12, the wording of the criminal offences, which included the words “ought reasonably to have known”, and it was suggested that clause 13(6) was unnecessary and should be removed.

The South African Human Rights Commission (SAHRC) noted that there was a distressing lack of compliance by most government departments in providing information under PAIA. All the issues that SAHRC handled were at the heart of transforming society, and the public’s right to information was central to every issue. It was necessary to share information in order to ensure that people could enforce their socio-economic rights. A number of court judgments and pronouncements were cited in the written submission, which illustrated that any restriction on human rights must be rationally and adequately justified. SAHRC did not believe that the Bill did this properly. It was concerned about the harsh sanctions and the limitation of the right to freedom of expression, which was essentially a limitation on the right of the public, and questioned whether the Bill used reasonable means to uphold national security. The sanctions set out would have the effect of limiting the media’s functions, and insufficient checks and balances were provided. It submitted that more had to be done to prevent incorrect classification at the outset. SAHRC also questioned the lack of timeframes for the Minister’s response, and raised concerns about clause 1(4). The Bill did not speak to power imbalances between the state and the public, and the majority of citizens could not actually assert their rights, as the process through the courts was burdensome and expensive. Clauses 14 and 16 were not sufficiently clear. SAHRC wished the number of functionaries who could classify to be limited, and was not happy with clause 13. It also questioned how actions would be instituted against those who had classified incorrectly, and suggested that written reasons must be provided for every classification. It supported the need for a public interest defence, and called for alignment between this Bill and other pieces of legislation. The independence of the Classification Review Panel must be assured.

The Law Society of South Africa (LSSA) confined its oral submissions to three main points. The Bill had been criticised as intruding into PAIA. The LSSA believed that PAIA could deal adequately with protection of information in the non-security clusters. It suggested that the Bill would be improved by narrowing down the issues, so that it dealt exclusively with intelligence-related matters in the cluster. The LSSA questioned why there was any need to include a definition of the head of a municipality, and questioned whether parastatals and municipalities were likely to have to classify documents. LSSA also proposed that minimum sentences be removed from the Bill, as it was not correct that a person who had intentionally committed a criminal act should be given the same sentence as one who lacked that intent.

Corruption Watch made general submissions about the impact of corruption on society, and said that this Bill was likely, in its present form, to impede the fight against corruption. The necessity to address corruption was closely linked to the guarding of national security. Corruption within the security apparatuses was in itself an attack on national security. However, it should not be the task of the Bill to deal with this, nor with leaks of information from within the agencies, but a separate initiative. It was necessary for the public to be placed in a position both to be informed and to inform of any corrupt activities. The main threats to national security were seen as poverty, inequality, corruption and unemployment, which caused significant social unrest. The principle of whistle-blowers being protected, and being free to inform of corruption, must be enshrined in the Bill, but it was problematic that the Bill currently emphasised protecting state information rather than giving access to state information. Corruption Watch aligned itself with other entities’ submissions on Constitutionality issues and the impact on whistle-blowers, and suggested that the inclusion of economic, scientific or technological secrets was open to abuse. The fact that people wee currently afraid to report corruption, or had no confidence in the ability of the security services to address it, was at odds with the values of the Constitution. Corruption Watch proposed that the name of the Bill be changed, to emphasise that it dealt with information pertaining to national security, that government needed to have a major information campaign on the Bill, and on how the public could report corruption, that care should be taken to try to expand people’s rights, rather than taking them away, and that PAIA must not be weakened by any other legislation. PAIA was not user-friendly, and by the time information was released, the time delays led to devaluation, whilst those not having resources were unable to secure their rights. Any information that could lead to prosecution of corrupt actions should not be included under the definition of classified information.

Members asked for comment on whether valuable information should be included in this Bill, and sought further clarity on what areas were regarded as unConstitutional, on the functions of the Panel, and on the balancing of the right of access to information and protection of state security matters. They questioned the impact of classification with the possible attempt to cover up fraud, and thought that perhaps there had been too much emphasis of this point. They raised a number of examples and asked how the Bill would impact on them, if it were to be passed in its present form. They questioned if there had been prosecutions under the 1982 Act. They also sought views on minimum sentences, whether the entities would support a direct approach by the public to the Classification Review Panel, and how this Bill was likely to affect the work of the Chapter 9 institutions, higher education institutions, and research bodies. They questioned whether the register of classified documents might not answer some concerns. They asked why the LSSA had focused on the position of municipalities, and asked Corruption Watch to expand on some of the points.

Meeting report

Protection of State Information Bill: Public hearings day 1
Open Democracy Advice Centre (ODAC) submission

Ms Alison Tilley, Executive Director, ODAC, welcomed the intention to replace the Protection of Information Act of 1982, and summarised what the Protection of State Information Bill (the Bill) was intended to achieve. The Bill had been the subject of much vigorous debate, and ODAC was encouraged by the public’s interest in it. The most contentious issue was whether there should be a public interest override and defence. She noted that she would present a case study that would illustrate the effect of this Bill, if it were to be passed in its present form. She explained that ODAC was set up in 2001, with the intention of supporting whistle blowers, and to deal specifically with access to information. Since the hearings on the Bill in the National Assembly (NA), ODAC had had an opportunity to deal with real human rights issues arising from a case of a whistle-blower working at the State Security Agency. This was the case of Roberta Nation, which was published in The City Press some weeks ago.

Ms Nation was a medical aid administrator, who had joined the State Security Agency (SSA) to work with its own medical scheme, since it did not use a normal public sector medical aid. After being in that position for a short time, she found a number of irregularities, ranging from minor instances to serious fraud, which she drew to the attention of management. When there was no response, she approached ODAC, who initially assisted her in raising these concerns, from September 2011 to January 2012, within the SSA. Although SSA indicated in its correspondence that it was prepared to deal with the matters, Ms Nation ended up being sidelined from doing the fraud prevention that was part of her job. She decided to raise the concerns publicly, although ODAC advised her that she was at risk of releasing classified information, and the Auditor-General (AG) had now indicated that he was investigating the case. Nothing was as yet known about Ms Nation’s position at the SSA, following this disclosure.

Ms Tilley pointed out that if the Bill were to be passed in its present form, with no public interest defence, a number of people might be charged with committing a criminal offence. Although Ms Nation may be protected by the whistle-blower clauses, clause 49 of the Bill stated that any person having any information that was “a state security matter” and who disclosed it could be found guilty of a criminal offence. This could then include her attorney, Senior and Junior Counsel, who were consulted, the attorney working with ODAC, a secretary who received faxes to do with the information, and the journalist whom she approached, as well as some junior staff in the office of the Auditor-General, and the editor and readership of the City Press.

This illustrated why ODAC felt that it was so important to have a public interest defence. It was necessary to try to act effectively and vigorously against people who were systematically defrauding the public. Anyone coming into possession of the type of information that Ms Nation had should be able to approach bodies who would be able to deal with the corruption. She pointed out that the most effective way of uncovering corruption was to allow those who knew of the corruption to publicise it, if it was in the public interest, and to raise a defence of public interest. She added that it seemed, in addition, nonsensical that readers of the City Press could potentially be charged, as this matter was by now in the public domain. She reiterated that this was not merely a hypothetical case, but a real example that illustrated clearly the necessity for a public interest defence in the Bill.

Ms Tilley noted that there were a number of other technical problems with the Bill. Although there was a commendable intention to protect whistle-blowers, ODAC believed that it was not Constitutional, because the whistle-blowing clauses were framed as an exception to the normal situation where an accused would have the right to silence, and the state would have to prove all elements of a crime. This Bill provided that the whistle-blower himself had to bear the burden of proof. She indicated that ODAC had obtained Counsel’s opinion on that point, and it had been sent to the Committee.

The point was made in the NA that no other country in the world provided for a public interest defence. However, ODAC's research indicated that mere possession or receipt of classified information, criminalised in this Bill, was not treated as a crime in other countries, so there was no need to provide a defence. Most information classification laws did state that government officials who were tasked with keeping matters secret, but failed to do so, would be guilty of a criminal offence. The legislation on the Central Intelligence Agency (CIA) allowed for whistle-blowers in designated categories, and this was an interesting option. Some of those objecting to the defence had suggested that journalists and the public were likely simply to go ahead and disclose, regardless, but she indicated that this was not a correct assumption. Despite the fact that defences (such as self-defence) were in existence for the crime of murder, this did not mean that someone was more likely to commit murder, as there were still sufficient deterrents. She did not believe that drafting should be based upon assumptions.

Ms Tilley noted further that a law that allowed for prosecution of the person publishing the information, whilst exculpating the whistle-blower, did not made sense. She explained the legislative objectives behind the Protected Disclosure Act (PDA) and said that the protection was a strong motivating factor. It was unlikely that people would take huge personal risks to expose wrongdoing if the wrongdoing was not likely to be published.

ODAC was also concerned about the definition of “economic, scientific and technical secrets”, since the Bill did not state, as was surely the intention, that this information would not be published insofar as it related to the defence and security of the Republic. She felt that the wording needed to be tightened.

ODAC also wished to comment on the Classification Review Panel (the Panel). Its job was to review documents that had been classified in other departments. However, a citizen could not approach the Panel to have a classification reviewed, but must instead follow the route of requesting access to information, with an appeal to the Minister. This Committee may wish to consider whether this Panel should have a greater role. She pointed out that the current wording provided that those classifying the information were the same people to whom the appeal must be made.

There had been a lot of discussion about the overriding primacy of the Promotion of Access to Information Act (PAIA), and the drafters had attempted to deal with this. The argument was raised that PAIA did not regulate access to classified information, but ODAC was not sure that this was correct. She pointed out that PAIA was a law giving effect to a Constitutional right, and was something on which Parliament had already expressed its views, and she noted that the fact that this Bill attempted to override PAIA was problematic.

She noted that additional procedural and drafting issues were raised in ODAC’s written submission (see attached document).

The Chairperson asked if the matter of Ms Nation was currently with the Auditor-General, or with the courts.

Ms Tilley responded that it was not before the courts, but the Auditor-General had indicated that he was looking into the matter.

Mr D Worth (Free State, DA) asked if ODAC proposed any wording for the public interest clause. He also asked if ODAC had any proposals on what alterations were needed to the penalties.

Ms Tilley said that ODAC had assisted the ACDP with its draft on the public interest defence, and stood by the wording of that draft, as it provided for something that would be Constitutionally acceptable. In relation to the penalties, ODAC had not as yet made a written suggestion, but she could revert to the Committee; in general, ODAC was concerned that the penalties in this Bill were higher than other international practice.

Mr D Lees (KwaZulu Natal, DA) asked for ODAC’s comment on whether valuable information should be included or excluded from the Bill.

Ms Tilley said that ideally, valuable information should be excluded, rather than this Bill attempting to deal with two issues. However, this process was so far down the line that it would be difficult to excise the clauses dealing with valuable information. A further problem might be that provincial archives were an exclusively provincial legislative competence, yet this Bill attempted to cover them.

 Mr T Chaane (North West, ANC) asked which areas of the Bill were regarded as unConstitutional, and for what reason. He also questioned if any of the clauses were contrary to PAIA or any other law.

Ms Tilley responded that ODAC worked particularly with PAIA and the PDA. In relation to PAIA, clause 1(4) was problematic, as it attempted to override PAIA. In relation to the PDA the clauses for whistle-blowers were problematic.

Ms Gabriella Razzano, Legal Researcher, ODAC, said that there was now an additional ground for refusal of access to information, and this was seen as unnecessary interference with rights granted under PAIA.

Mr Chaane asked if people would be liable to be prosecuted merely by virtue of having sight of the information, or whether they would actually need to be in possession of the information. He noted that a secretary receiving a fax might or might not have read it.

Ms Tilley confirmed that possession would clearly be a breach of clause 49, but if a person merely had sight of information, this might also be a breach.

Mr Chaane asked for more clarity on the Panel.

Ms Tilley said that the intention was that this Panel would look at how government departments were managing their information, and would give advice and support, as well as oversee reviews of classified information. However, as currently worded, the public would not have any opportunity to approach the Panel. Instead, the information officer of the department must be approached, in terms of PAIA. There had been some interesting discussion about whether there might be some opportunities to use the structure of the Information Regulator, created by the Protection of Personal Information Bill, and this was a possibility. However, the Panel created under the current Bill would have expertise on classification, and it seemed that it would be logical to use this structure for public concerns.

The Chairperson asked ODAC had any proposals on how the role of the Panel should be defined.

Ms Tilley proposed that the Panel should have the jurisdiction to deal with requests for declassification.

Mr A Matila (Gauteng, ANC) was worried that the presentation had focused on selected points. There might be human errors around classification. The point was that the state required protection from having sensitive information disclosed.

Ms Tilley agreed that there was certainly information that did need to be kept secret, in the interests of South Africa as a whole. However, there were occurrences – such as the Roberta Nation matter – that were clearly not in the interests of the people of South Africa. She did not think that any matter where taxpayers’ money was being misused was a minor issue, and should be of concern. She also respected concerns that there was a need to curb the leaking of information by the Intelligence Services, but questioned whether it was correct to deal with this concern by legislation that criminalised the actions of patriotic citizens who did come forward to give information. This Bill was not intended to deal with the control of intelligence and plug the leaks, but to deal with the management of information in the security structures. If there were concerns about leaking, then the Inspector General for Intelligence should be dealing with the matter. Corruption Watch may touch on further points in its presentation.

The Chairperson asked how the conditions for classification, set out in clause 14, would be balanced against the case study that she had outlined, how this matter would be dealt with, and what would happen if the classification was intended to cover up maladministration or corruption.

Ms Tilley answered that not every single medical aid claim would be reviewed, but the classification would be based on the fact that those covered by the medical aid needed to have their identity protected, which was the reason to classify. Therefore, it was not always the case that the classification was intended to cover up a fraud. If, however, a citizen could show that the classification was indeed done to cover up fraud, then clause 14 would apply. It was a problem dealing with day-to-day management issues in an agency that must keep matters classified.

Mr D Bloem (Free State, COPE) asked how transparency and secrecy could be balanced.

Ms Tilley responded that the Constitution said that there was a right to access to information and freedom of expression, which may be limited to the extent necessary in an open and democratic society. The discussion about foreign jurisdictions was not necessarily relevant, as the South African Constitution had to be the guiding standard. However, this Bill was to do with the constraint on rights.

South African National Editors Forum / Print Media South Africa / Webber Wentzel submission
Mr Dario Milo, Partner, Webber Wentzel, explained that Webber Wentzel were attorneys for South African National Editors Forum (SANEF) and Print Media South Africa (PMSA), who would introduce the submission.

Mr Hoosain Karjieker, President, Print Media South Africa, said that SANEF was a non profit organisation whose members included editors, senior journalists and journalism trainers. Its aim was to be a representative and credible voice of journalism. PMSA was an umbrella body representing the interests of the print media industry, and represented over 700 newspaper and magazine titles. It primary objection was to provide a forum for unified representation.

SANEF and PMSA accepted that national security was an important interest, and that some government information was entitled to protection. However, the Bill had to cater for Constitutionally protected rights such as right of access to information, and freedom of expression. It must be recognised also that the media acted on behalf of the public and in support of the public’s right to know. Transparency, openness and accountability were founding principle of the Constitution and were essential to transformation. The Bill must therefore be tested against the Constitution’s guarantees. SANEF and PMSA believed that the inclusion of a public interest defence would go a long way to achieving that objective and expediting transparency. PMSA thought that editorial independence was sacrosanct and editors should be allowed to publish without interference.

Mr Nic Dawes, Chairperson, Media Freedom Committee, SANEF, noted that SANEF was on record as supporting the principles behind the Bill. However, it did not believe that the Bill yet achieved what was needed. South Africans understood that their rights to freedom of speech were not narrow, and that the Constitutional issues were at stake. SANEF welcomed the processes, which were in harmony with the objectives, but believed that, as currently framed, this Bill would force journalists to decide whether to follow their conscience, follow their public mandate, and risk going to jail, or to remain silent, counter to their consciences.

He emphasised that the defence of the public interest, were it to be introduced, should not be seen as giving journalists free rein to publish anything they wanted. It should be a carefully designed instrument allowing for a proper balance between the right to expression and the legitimate interest of national security. Currently, the Bill was confused, and there were overlapping offences and conflicts. The penalties were also very stringent. He noted that government could only be strengthened and made more secure by following the path of openness. The NA had already done some quite substantial work, and the NCOP now needed to take he final steps to ensure that the Bill was correct.

Mr Dario Milo noted that the written submissions of Webber Wentzel set out all the arguments, but he would focus on key issues in his oral submission. SANEF and PMSA commended the drafters for their attempts to strike the balance between openness and protection, but suggested some revised wording that would give effect to the submissions it wished to make, and this would be provided to Members.

Mr Milo noted that an earlier version of clause 28 of Bill B2010 was preferable to the version that was now in the current Bill, as clause 19. The earlier version had said that any request for access to classified information would have to be made through PAIA. However, PAIA was now ousted by version of clause 1(4). PAIA made it clear that the default position was to allow access to government and political information, with any restrictions having to be justified by government. That rigour was not reflected in the current clause 19, so it was suggested that the wording of the original clause 28 should be substituted for clause 19. If the Committee decided not to do so, it would still need to attend to other problems in that clause. Clause19(3) suggested that the request to release classified information could only happen if the document revealed a contravention of the law, or failure to comply with clause 14, or an imminent and serious public safety or environmental risk. This was far too narrow. The head of the organ of State should also have to release information if the document should never have been classified. Conditions may have changed that no longer rendered classification appropriate, and he suggested that clause 19 should be broadened so that it was clear that not only the circumstances set out in the present wording could be the trigger for release of the information. Another problem with this clause was that it failed to prescribe the time within which the head of the organ of state must provide the information. PAIA did stipulate periods. He suggested that a 30-day time period should be legislated, as the absence of time frames raised the possibility of abuse. The last problem with this clause was that the public interest override, which was taken from PAIA, was too narrow. This could be corrected by substituting the word “and” in clause 19(3) with the word “or”. He noted that although the wording of PAIA was used, many critics had already suggested that this needed to be corrected. The version now proposed would have the effect of making the public interest override broader than it was at present.

In addition to the public interest override, SANEF and PMSA believed strongly that there was a need for a public interest defence to the crimes of possessing and disclosing classified information. This would signal a firm commitment to the imperatives of transparency and openness in a democracy, and allowing for a public interest defence would strike the correct balance. The Congress of South African Trade Unions (COSATU) had put this clearly, and SANEF endorsed its view. The dangers of not including a public interest defence were illustrated by two examples from foreign jurisdictions. The European Court of Human Rights, in the 1997 case of Stoll v Switzerland, noted that the conviction of a journalist could discourage those working in the media from making information public, and this could have an adverse effect on public rights. He stressed that there would have to be justification for the claim that the release of the information was in the public interest. The second example was derived from the Pentagon Papers matter, which dealt with the top secret classification of documents relating to the USA’s involvement in Vietnam, and revealed that four successive USA presidents had deceived the public about the commitment to that war, and the losses suffered. If this Bill, without a public interest defence, had been in force at the time that the report was leaked and published by major media houses, a number of crimes would have been committed, including espionage (if the journalist knew that the crime may benefit a foreign state), possession and disclosure. That would be anomalous in the light of the USA Supreme Court decision to allow the media to continue publishing, because “paramount in the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people”.

Mr Milo stressed that the Bill had to be properly balanced. However, clause 43 was not sufficient; whilst it was some form of recognition by the legislators that a quasi-public interest defence was necessary, it did not go far enough. The PDA and Companies Act were very limited and applied only to certain categories of whistle-blowers, and a chain of disclosure had to be followed. Journalists were not protected. The defence also applied only to one of the many disclosure offences, that set out in clause 43, but not to clause 49. It was not sufficient answer to say that the public could seek access to the documents in terms of clause 19. To suggest to a person, to whom newsworthy information was leaked, that the law required the document to be returned, and then application to be made to release it, endorsed an impoverished notion of accountability.

Mr Milo said that he would not detail all the aspect of the proposed wording for the public interest defence, but noted that it incorporated parts of the PDA, and could be used as a starting point (see attached Powerpoint presentation). In answer to concerns that the defence may be abused by the media, he noted that if the defence were crafted narrowly enough, this could not happen. He would be happy to engage further with the Committee on the wording.

Mr Milo then moved on to state that in addition to a public interest defence, this Bill should contain a public domain defence. By definition, information that had come into the public domain lost any element of secrecy, and therefore no longer needed to be protected. This was recognised in other jurisdictions. In the Spycatcher case in the United Kingdom, a book detailing operations of the secret service MI5 was initially banned, as it was a breach of the Official Secrets Act, but was widely published abroad. The judges in that case decided that once news was released, by publishing it in another country, the law should not close its eyes to the realities, and try to prevent the press from repeating that information that was freely available elsewhere. He made the point that this judgment was given in 1987, and was even more relevant in light of the digital information now available. In South Africa, in the matter of Independent Newspapers v Minister for Intelligence, Judge Moseneke had made the point that it was important to consider if the information was already in the public domain, and for how long, and to what extent it had been there.

Ms Okyerebea Ampofo-Anti, Senior Associate, Webber Wentzel, highlighted some further problematic areas of the Bill. She noted that the current wording of clause 12(2) made it impossible to determine what would e “secret” and what would be “top secret” information. Clause 12(2), relating to secret information, used the words “serious demonstrable harm”. Clause 12(3), relating to top secret information, used the words “demonstrably cause serious or irreparable harm”. The definition of “secret” could be subsumed under clause 12(3), and this clause was too broad, because of the use of the word “or”. It was proposed that this word be replaced with the word “and” so that there would be a double requirement of serious and irreparable harm. If this was not done, then there was a possibility that the classification would take place at a higher level than was appropriate, which had an impact on how the information was handled, and who had access to it, as well as impacting upon the sentences to be imposed on a person in breach of the Bill. Espionage offences related to top secret information attracted a minimum sentence of fifteen years, whereas those relating to secret information attracted a minimum sentence of ten years.

The clauses relating to criminal offences were also seen as problematic, because offences in clauses 36, 37, 38 and 39 were worded as “knows or ought reasonably to have known”, which suggested that they were based on negligence, not actual intention. The words “intentionally and unlawfully” as used in these clauses were attached to the action of communicating, and not to the consequences of the action. She suggested that the words “ought reasonably to have known” should be deleted. Any reference to “an indirect benefit” should also be deleted. The clauses should make it clear that the information must have been disclosed with intention to directly benefit a foreign state or non state actor. The proposed new wording would significantly narrow the offences, and would ensure that ordinary citizens or journalists would not be found criminally liable if they did not have the intention to commit an offence.

The final point related to classification by the security services, in clause 13(6), which was inserted while the Bill was under discussion at the NA. The clause referred to every member of the security services who, due to “the nature of his or her work” must classify information, subject to confirmation by the head of the organ of state. Effectively, every member of the Defence force, South African Police Service (SAPS) or the National Intelligence Agency (NIA) would be able to classify, because the words “the nature of his or her work” were far too vague. A newly appointed police officer would be able to stamp a document as top secret, and negative consequences were likely if this wording remained. The only attempt at a safeguard was the requirement that the information must be submitted to the head of the organ of state, for confirmation of that classification, but there were three problems still: firstly that the classification would remain in place until confirmed, the classification ability was not confined to members with a senior rank, and it was not clear how soon after the classification the head of the organ of state must review it. There was a danger that this clause would encourage over-classification, and SANEF and PMSA therefore submitted that this clause must be deleted altogether from the Bill.

Mr Bloem asked why SANEF had suggested that this Bill had the potential to take the country back to the apartheid days.

Mr Dawes said it was necessary to be careful when making comparisons to a past regime that effectively was illegal and suppressed freedom of information. Those days had been marked by conflict between conscience, morals and the law of the land. He said that everybody was anxious to avoid a situation where morality would come into conflict with the legislation, and people would be placed again in a position of huge personal conflict.

Mr Bloem asked if the front-page article in the Sunday Times of 25 March, relating to leases of police premises, apparently supported by copies of the lease, would result in prosecution of the journalist, if this Bill had already been in force.

 Mr T Mofokeng (Free State, ANC) was not sure whether the information in the Pentagon Papers report should have been disclosed to the public, and asked how any damage from the disclosure would be handled.

Mr Lees noted that the City Press had recently carried a story about promotions of VIP guards, but when questions were asked, the answer was merely that this was a matter of national security, and no other answers would be given. He wondered whether, in the event that this Bill might be enacted as presently worded, the information could be published.

Mr Milo said that all three questions related to clauses 43 and 44, as they illustrated the Bill’s offences of disclosure and possession, as well as overlapping offences. If the Bill had been in force and the documents were classified, anyone releasing or being in possession of information would face jail sentences. If the documents were wrongly classified, this was an offence in itself, but it was also an offence to disclose. The journalists, instead of publishing, would have to return the documents with the classified information, then follow the procedures set out in clause 19 for the release of the information. In practical terms, it was of serious consequence to include these offences, without counter-balancing them with a public interest defence. The VIP guards matter illustrated the effect of the legislation in the current Bill, and was the point covered in the Switzerland case. If the Bill was passed as presently worded, important stories were never likely to be published, whereas a carefully crafted public interest defence, that avoided the possibility of abuse by journalists, would allow for openness and transparency. The Pentagon Papers case illustrated how information that had been classified should be released to the public, but there was a need for care in how to articulate the principle, and how the information could be released. Obviously, operatives’ names should not be released, nor should detailed defence claims or techniques. However, he submitted that SANEF’s proposed wording of the public interest defence would cater for this. A person who came into possession of a classified document would have to take the difficult decision of whether or not to publish. The journalist and editors would still risk a jail sentence if they were wrong in their decision, and that was why the draft was proposed, as an editor would have to test the various positions before making a decision.

Mr Bloem wondered if a kind of state of emergency would pertain if a person was detained, and the newspapers could not publish the whereabouts of that person, as had happened to Mr Bloem himself in the past.
Mr S Mazosiwe (Eastern Cape, ANC) asked if there had been any comparisons made between the 1982 Protection of Information Act and this Bill, and whether there had been any problems with journalists giving information, under the 1982 Act.

Ms Ampofo-Anti said that the current Bill was a departure from the existing legislation that was clearly not in line with the Constitution. However, there were still issues in the Bill that had to be resolved. In general, there had not been prosecutions of journalists under the 1982 Act, but there was one instance where this Act was used to muzzle reporting, as the Crime Intelligence unit of SAPS had obtained an interdict to prevent the Sunday Independent from publishing allegations about nepotism, when it called for a response from SAPS to the allegations. The legislation under which the interdict was obtained was very vague and broad.

Mr Lees asked if SANEF and PMSA had views on minimum sentences, and whether they should exist and could be justified, given the differing circumstances relating to the offences in the Bill.

Ms Ampofo-Anti said that they held the view that there was no need for minimum sentencing. The initial draft of the Bill prescribed minimum sentences for every offence, although the current draft retained the minimum sentences only for espionage.

Mr Lees suggested that, from a media and press position, a direct approach to the Panel might be preferable. This would certainly be less costly than following the procedures currently prescribed.

Mr Milo said that SANEF and PMSA aligned themselves to this suggestion, but believed that it could be made even stronger. If clause 19 were to be retained, he suggested that perhaps the appeal should go to the Panel, as opposed to the Minister. He agreed that there should be interaction between the public and the Panel.

Mr J Gunda (Northern Cape, ID) asked why there had been such emphasis on the public interest and public domain defences, and what each related to.

Mr Milo explained that if a document was already published elsewhere and therefore the information was readily available already, there should be no need to test the content of the document, because it was already in the public domain. He was not suggesting that the person who first put that information in the public domain should be protected, but he did proposed that those who published or read it should not be prosecuted. A defence of public interest would require an examination of the content of the document, and of the category into which that information may fall.

 Mr Worth asked for comment on the leaking of information, as in the Wiki leaks matter.

Mr Milo said that a number of South African leaks had been shown. The current Bill did not deal adequately with the matter.

The Chairperson noted his concerns that all the examples given related to corrupt activities. Although those making submissions had acknowledged that it was important to protect information that had to do with national security, including the example reported over the weekend, they had all raised concerns about classification being used to cover up maladministration or wrongdoing. This was a matter also raised at the provincial public hearings. It was important to clarify who would be punished. He said that a person might come into possession of information, know that it would have serious implications on national security, pass it on to a person in another country, and then, as a defence, claim that it was in the public domain and therefore could be published in South Africa.

Mr Milo responded that clauses 14 and 47 were very important, and were welcomed, as they followed international best practice. He agreed that documents could be classified to hide corruption, or classified negligently, or innocently but incorrectly. The protection set out in clause 14 would apply where was an actual intention to classify in order to hide corruption. There was nothing in the Bill to say that a person who received a document, and believed that the classification was contrary to both clauses 47 and 14, could disclose that document. The inclusion of a public interest defence would allow for such information to be disclosed. He suggested that this Committee must recognise that some matters could be wrongly classified, and craft an appropriate outlet for whistle-blowers to publish the information. A person who wrongly classified would be punished, but, as the Bill currently stood, the person who published would also be criminally liable. A public interest defence would allay those concerns.

Mr Dawes clarified that SANEF was not asking for a situation where a journalist would be protected in every case, but only for those who were publishing in the public interest. Similarly, the public domain defence should never be seen as an attempt to create a back door, but was merely an attempt to recognise the realities of the situation.

South African Human Rights Commission (SAHRC) submission
Ms Pregs Govender, Deputy Chairperson, SAHRC, said that the mandate of the SAHRC was to promote respect for a culture of human rights. The system of government prior to 1994 had resulted in abuses of power and human rights violations. The SAHRC’s contribution to the culture of human rights, in terms of PAIA, was to address the former secrecy and lack of response to public requests for information. SAHRC welcomed the attempts to change the 1982 Act, and said that the power of information and dangers of state secrecy could not be over-emphasised. Apartheid had left South Africa with widespread poverty and inequality. The SAHRC believed that poverty was created when human rights were ignored. IT was the responsibility of the NCOP to address that. In the new order, information was critical. There were, nonetheless, many examples of the dangers of secrecy, including the war against Iraq, which was premised on a lie and protection of powerful vested interests. South Africa too faced a number of issues where information was not provided to the public, including the Arms Deal, mis-information around HIV and Aids, and the ways in which general agreements on trade and tariffs were implemented. It was necessary to ensure that this Bill would not impact negatively on the public, and to allow scrutiny of decisions and the power behind decision making.

Ms Govender noted that in this month, SAHRC had focused on water and sanitation, and the Social Justice Coalition used PAIA to seek information on whether it was possible for the companies who were awarded tenders to deliver on their promises. SAHRC was looking at acid mine drainage, and responsibility for cleaning up pollution. The public should be made aware that only 10% of water in the country was used by households, with the remainder used by industry. All these issues went to the heart of transforming society, and information was central to every issue. SAHRC noted that levels of compliance with PAIA across government had generally been very poor. It was necessary to share information in order to ensure that people had socio-economic rights.

Ms Chantelle Kisoon, Head: PAIA Unit, SAHRC, said that some of the concerns of SAHRC as set out in its initial submissions had been partially addressed.

The Constitutional Court had expounded at length on human rights issues, and interpreted human rights generously, with restrictions that were very limited. The courts, in the various cases that were detailed in the written submission (see attached document) had emphasised that any restriction of basic human rights must be rationally and adequately justified. The Constitution recognised that limitations to the rights set out in the Bill of Rights were sometimes necessary. The right to privacy of those holding public office was indirectly limited. However, the right of access to information was not limited. Section 195 of the Constitution imposed an obligation on the State to share information. The right of access to information was supported by PAIA, which created very specific instances where national security may be raised as a ground for limitation, but which did not give any blanket protection to “national security”. PAIA was at odds with the Bill, as it expressly provided how information must be released and the time frame within which this must be done.

SAHRC had noted that most other comparable jurisdictions had a presumption in favour of granting access to information, but did create some limitations. Many comparative jurisdictions, came up with ad hoc responses. The SAHRC believed that South Africa had an opportunity to address the limitations conservatively, but comprehensively, through this Bill. It suggested that access to information may be refused, unless there was an overriding public interest in the release of that information. SAHRC commented also that the Bill created very harsh sanctions, compared to other countries, and many other jurisdictions did not punish mere possession of classified information.

SAHRC was concerned that the current Bill limited the right to freedom of expression. The Constitution could allow for limitations, but not undue limitation. Cases in the past had emphasised that the media rights did not “belong” to the media alone, but were an essential element of allowing the public to be effective citizens. Any limitation on the rights of the media therefore amounted to a limitation of the rights of the public. The fundamental rights must be interpreted in a way that gave maximum freedom, whilst any limitations must be interpreted in a very narrow way, and it was essential that any limitation must be reasonable and justifiable. An important question was whether the Bill used reasonable means to uphold national security.

SAHRC believed that the sanctions set out in the Bill, regardless of the intent, would in fact result in a limitation of the core functions of the media. There was a lack of checks and balances, and the media could only receive an answer as to whether classification was correct by resorting to the courts. Remedies for improper classification were ineffective, and were retrospective. More had to be done at the outset to prevent incorrect classification. SAHRC had considered how administrative systems could be set up to ensure a more proactive approach to ensuring proper classification, but this would have to be very carefully crafted, to avoid imposing too heavy a burden on administrators.

The SAHRC believed that the current Bill unduly restricted the right of access to information. It was assumed, unless challenged, that legislation was consistent with the Constitution. Therefore, access to information, a Constitutional right, must be respected. Any provision of this Bill, such as clause 1(4), that excluded supremacy of PAIA, and therefore was attempting to override PAIA, could be regarded as unConstitutional.

SAHRC noted its concern that this Bill gave the Minister “a reasonable time” to respond, whereas PAIA provided for specific time frames. It was difficult to fix what the words “reasonable time” meant and it was assumed that this might exceed the 30 days allowed under PAIA.

There was another inconsistency, in that the Information Officer’s discretion, in terms of PAIA, must be exercised in a way that favoured access to information. This Bill said that information should not be released unless certain considerations applied.

The Bill also did not speak to the power imbalances between the state and the public. There were concerns as to how people in poor or deep rural areas would, in practice, be able to assert their rights. The process of getting information through the courts was very burdensome, and lessened the ability of individuals to assert their socio-economic rights. The SAHRC strongly recommended alignment of PAIA, and also suggested that the Panel should have more powers.

A fundamental principle of the Constitution was that laws must be clear and accessible, with reasonable certainty. Although clauses 14 and 16 attempted to set out the thresholds for classification, these were set at a low level, especially since they used the word “may”. Individual items in a classified group could be automatically classified. SAHRC believed strongly that where legislation would restrict individual rights, its scope must be limited. This Bill’s limitation of rights was seemingly given more weight than the duty to maintain transparency.

One way in which the Bill could be improved would be by limiting the number of functionaries who were able to classify information. SAHRC was not happy with clause 13, which allowed the Minister to extend duties of classification to any organ of state. The words “good cause shown” were not sufficiently clear, especially since this would result in an impact on fundamental rights.

SAHRC also had difficulties with the wording as to a person who incorrectly classified, and asked who would institute any actions, and who would sanction the prosecution of such an individual. SAHRC suggested that every classification must be accompanied by written reasons for classification. This would address some of the onerous responsibilities.

Ms Kisoon noted, in relation to the offences clauses, that it would be very difficult for an individual receiving information to know in what category the information fell. SAHRC was also very concerned about the comparatively harsh sanctions, and this was exacerbated by the fact that certain defences could not be raised. The offences were worded in such a way that it was not only intentional commission that was criminalised, but also negligence, as seen by inclusion of the words “ought reasonably to have known”. There were no attempts to define terms like “disclose” and the offence of disclosure was not limited to the initial communication. There was no definition of direct or indirect benefits.

SAHRC suggested that a public interest defence was needed. If this was not in the Bill, the courts would not be able to go beyond the Bill’s provisions, and it would be difficult for them to engage in any balancing exercise between the needs of national security with the public’s right to know. SAHRC believed that the absence of such a defence would impact unduly and unfairly on human rights, particularly expression and access to information.

In summary, The SAHRC therefore recommended that this Bill must be aligned with other Constitutionally-compliant legislation, in particular PAIA. Amendments were needed to the offences and penalties clauses. The powers of the Panel must be looked at again, and its independence considered in the light of the recent judgment in the Glenister application to the Constitutional Court. SAHRC did not believe that a defence of public interest would exclude other equitable reasonable defences. SAHRC stressed that the case of SA Defence Force v Monigher, relating to the provisions of the 1982 Act, had recognised justified exposure, and given the recent pronouncements by the Constitutional Court in the cases cited in the written submission, it was possible and desirable to introduce a “reasonable publication” defence. A publisher who was uncertain about proof may still be able to publish something if it was in the public interest to do so. That would overcome the chilling and unduly adverse effects of the Bill in its present form.

Mr Worth asked whether the SAHRC was of the opinion that the current wording of the Bill, if it were to remain unchanged, would ensure that controversial information, such as the Arms Deal, would never be published.

Mr Lees noted the comment about sanitation shortages but asked if this information was likely to be classified, how the Bill would affect the workings of the SAHRC, and what SAHRC would do with the information.

Ms Govender said that the powers given to officials, who may be corrupt, to classify information was of major concern. SAHRC's experience, from PAIA, was that there were low levels of compliance in providing information required, and this ranged from policy, to implementation, to budget choices.

Mr Chaane said that many valid points had been raised, which may also have been raised during the NA process. He wondered if the SAHRC was proposing new wording for the clauses, pointing out that the Committee had very little time to finalise the Bill. He wanted clarity on the comments about limitation of rights. He also asked what particular areas in PAIA were not dealt with in this Bill, and whether SAHRC was suggesting amendment of PAIA – if so, he wanted to see specific proposals.

Ms Govender noted that the key areas where SAHRC suggested that the Bill should be amended were set out in the written submission. For instance, SAHRC felt that the right to freedom of expression may be unduly limited. The Bill may fall foul of the Constitution in so far as it conflicted with PAIA. SAHRC was concerned that the classification regime was overly restrictive, and was also concerned that the Bill may not meet the requirements of legality. One of the suggestions that SAHRC had made was to limit the functionaries who could classify information. It had also stated clearly that there must be a public interest defence. She reiterated that the essential mandate of the Commission was to contribute to the culture of human rights in the country SAHRC would train information officers to provide information to the public, so that they could access their rights. There was not yet a culture of responsiveness in the country – for instance there was 85% non-compliance with PAIA at local government level. Officials and bureaucrats were not responsive, transparent or open. This impacted significantly on the mandate of SAHRC, as seen by the fact that it had asked all government departments to respond on issues concerning water, but only four had done so.

Ms Kisoon added that SAHRC would be willing to continue its engagement with the Committee on formulation of clauses, or other matters.

Mr Chaane asked how the Bill, in its current form, was likely to impact on SAHRC's mandate as a Chapter 9 institution, and other similar institutions like the Public Protector.

Ms Kisoon responded that this Bill was likely to limit the work that SAHRC and other institutions could do, the degree of accountability, monitoring, and the kind of support that these institutions could get. Classification prompted by mischief could not be ruled out but would only come to light if the record was called for. Although it was not in every case that public officials would classify information to mask corruption, the risk of them doing so was increased by the lack of sufficient checks and balances in the Bill to stop that. Policies and regulations would only come after the fact. This was even more serious in the case of the State Security Agency, because there was no limitation on the levels of officials who could classify. This created the opportunity to have a more restrictive classification. More sophisticate sectors of society may be able to use their resources to challenge classification, but the question must be asked as to what ordinary people could do.

Mr Bloem referred to paragraph 4.5 of the submission, in relation to the organs of state. He wondered what impact this Bill could cause to higher education institutions and other research bodies.

Ms Kisoon responded that it would be very difficult for her, as a researcher, to access any information relating to any security matter, for the purposes of research. This Bill limited the ability of groups to undertake their work. This would be one aspect that the courts would test for fairness.

Mr P Nzimande (KwaZulu Natal, ANC) asked for comment on clause 11(c) of the Bill, which spoke to a register of classified documents. The SAHRC had noted that this Bill was not providing access, and he asked for its view on this register. In addition, there was reference to annual reports on the activities of the Classification Review Panel.

Ms Kisoon took the point but reiterated that, in practice, although a particular committee might be obliged to provide public reports, information on specifics was actually denied when it was requested. This was why it was so necessary to ensure that there regulations around this kind of information.

Mr Nzimande said that there was reference made to limitations of rights, but he asked for more specific comment. He thought that some of the examples given might relate to “valuable information” rather than classified information. Valuable information needed to be protected, but not necessarily classified. He also noted that the clauses were not weighted, and the drafters had tried to include human rights bills, not only in the objects and preamble.

Mr Chaane noted the concerns about the penalties that could be imposed upon those who came into possession of information, and the possible effect of this on the media. However, he made the point that the possible harm that publication of information could cause to the country would have to be balanced against the public interest in having that information. The interpretation of what might be “reasonable” might differ from one person to another.

Ms Kisoon said that, in trying to balance rights, the Courts had provided some indications, (set out from pages 10 to 13, and pages 15 and 16 of the written submission). They had emphasised that this was a wide right, and must be interpreted broadly, with the only limitations being those set out in section 16(2). The question was whether this Bill could be worded in a way that did not limit the rights so drastically, but still achieved protection. That was the reason why SAHRC had proposed the public interest defence, which would “rescue” the media from the impact of the Bill.
The Chairperson said that point 9.18.2 made a proposal that “further protection” should be afforded in relation to information from organs of state. He asked if the SAHRC was moving from the premise that a researcher might do research and, when doing so, might ask for information that was classified, or come across information that was classified, and therefore should be exempted from the Bill's provisions.

Ms Kisoon replied that the experiences of the SAHRC, in monitoring the PAIA, had been that an “organ of state” could be broadly interpreted, and it could affect institutions of higher learning, who may be brought into the domain. This would impose an undue administrative burden and would inhibit free exchange of knowledge and information. However, the more important point was that a researcher merely possessing classified information could be convicted of a criminal offence. Perhaps a form of the public interest defence could address researchers as well.

The Chairperson noted that he had recently asked students from the University of Chicago, on an exchange programme, whether they were permitted to do research on the work of the CIA, and they answered that they were not permitted, in the USA, to do any work on the operations of the CIA.
Ms Kisoon said that this was a very valid example, and SAHRC had no concerns about delimiting the areas where researchers would not be given permission to work. However, a researcher may come into possession of information that was incorrectly classified, or come into possession of information that was automatically classified, and, whether or not that information had anything to do with the protected areas of operation of the security agencies, the possession would be criminalised. That was a serious risk. However, an outlet must be provided for genuine cases, through the public interest defence. SANEF had also raised points about the public domain defence, and SAHRC suggested that one could be an extension of the other.

Mr Mofokeng asked what type of research would be done relating to national security, and for examples of research information.

Ms Kisoon said that there were any number of fields that could verge on national security operations; for instance a researcher may wish to accumulate data about spending on helicopters in the name of defence, or merely to look at trends and needs. There would obviously be justification in restricting release of the names of operatives, or operations, but if the research was in the public interest, and did not stray into these areas, it should not be prevented through automatic classification. Some areas of research information might include the formulation of policies used by committees controlling arms, and how these had developed over different jurisdictions. Some departments may regard this as classified information.

Ms M Boroto (Mpumalanga, ANC) took over as Acting Chairperson at this stage.

Law Society of South Africa (LSSA) submission
Mr Busani Mabunda, Member of the Committee on Human Rights and Constitutional Rights, LSSA, noted that the LSSA comprised members from the attorneys’ profession in all provinces, as well as representatives from the National Association of Democratic Lawyers (NADEL) and Black Lawyers Association (BLA). There were around 20 000 practising attorneys in the country.

LSSA recognised the need to move away from the past, but suggested that this Bill should have focused on the security cluster. The Bill appeared to be eroding intelligence legislation that came after the new dispensation. It had been widely criticised of intruding into PAIA in more than one way. The LSSA did not understand what motivated the inclusion of parastatals and municipalities and what circumstances, in the ordinary course of their duties, would warrant classification of information, what type of information was likely to be classified, and whether PAIA did not already deal adequately with those issues. This Bill was essentially dealing with issues of national security, and PAIA could deal adequately with protection of information in the non-security clusters of government.

Flowing from that, the LSSA suggested that the issues in the Bill could have been narrowed down, if it were to deal exclusively with intelligence-related matters in the cluster. The question remained what was to be done with the PAIA provisions, whether they were to be rendered obsolete, and what would be said about the onerous duty placed on people who wanted to access information. Mr Mabunda further raised concerns about the clogging of court rolls with applications, noting that there was bound to be suspicion that attempts to hide corruption had been behind classification.

LSSA had made written submissions about the sentences in the Bill. Whilst he agreed that the offences set out in the Bill were serious, the question was whether the offences were of such as magnitude as to warrant the imposition of minimum sentences. LSSA proposed that minimum sentences should be eliminated from the Bill, and instead there should be a merit assessment on each and every case. It would not be correct for a person who had intentionally committed a criminal offence to be given the same sentence as a person who might have done something without specific intention. Each case should be weighed up according to its merits. He also thought that there was not a correct balance achieved between the various offences.

Mr Nzimande questioned the point about the inclusion of other organs of state, saying that it was necessary to draw a distinction, and be very clear on, valuable information on the one hand, and classified information on the other. He asked whether clause 3 did not adequately cover the position in relation to information that would be classified by the head of an organ of state who had made application to be included under the Bill.

Mr Nzimande also wanted clarity on the points about minimum sentences, as it was his understanding that, notwithstanding the fact that minimum sentences may be prescribed, courts nonetheless had the option whether or not to abide by those minimum sentences.

Mr Bloem also requested clarity on the question of municipalities. He asked if there was a fear that a municipal manager may decide to classify secret information.

Mr Matila was not sure if the LSSA was referring to the correct version of the Bill, as he was not sure where the reference to municipal managers was set out.

The Acting Chairperson also sought clarity on this point.

Mr Mabunda noted that the definition for a head of organ of state said that the head of an organ of state, in the case of a municipality, would be the municipal manager. This Bill allowed for delegation of functions. The Minister of State Security would be the person in whom powers were vested, but it was possible to have powers delegated to Chief Executive Officers and Municipal Managers, to classify and declassify. He did not think that he was misreading the Bill. He submitted that these provisions could be construed as a perpetuation of the veil of secrecy, through the giving of powers, if these powers filtered down from security clusters to institutions that had nothing to do with security-related issues. If the two were not stated more clearly, there could be confusion between the real need to protect information in the country, and delegation of powers. It would be far better for the Bill to look only at the security point of view. There should not be a mixing of provisions relating to protected information and classified information. The legislation sought to deal with information that was necessary to the protection of national security. It should therefore be limited to that. Institutions like municipalities had nothing to do with security related issues and should not be mentioned.

Mr Mabunda said that the words “on good cause shown” were mentioned in the written submission. He did not think that clause 3 was compatible with the Constitution, as it would have the effect of giving the Minister unfettered powers to make pronouncements in the Gazette, on issues of security. The LSSA believed that those powers should be Parliamentary-legislated powers.

Mr Mabunda said, in relation to the question of minimum sentencing, that although Courts had inherent jurisdiction, a piece of legislation that prescribed minimum sentencing (which usually arose as a result of public outcry and ended up by being a form of capitulation by the legislators) was problematic. As a general principle, the courts should have inherent powers to sentence appropriately, in the light of what had been presented in evidence. He stressed again that a person doing something through ignorance was not in the same position as one who had intentionally broken the law.

Mr Nzimande said that he still needed clarity on clause 3. He asked if the LSSA was suggesting that this Bill should not deal with protection of valuable information. He also asked if the LSSA was suggesting that the minimum sentences should be removed.

Mr Mabunda answered that LSSA was not sure what kind of valuable information was envisaged. Quite apart from the security clusters, he wanted to know what information could not be accessed through PAIA. He strongly submitted that there was a need to consider all departments within the entire administration. The Minister would bestow powers to classify or declassify. He said that if PAIA could answer the public’s needs, then this Bill was an erosion on the powers of PAIA, and was not assisting the public to access information.

Mr Chaane asked if this Bill should be trying to separate the issues. He noted that not all parastatals would fall under this Bill, although some did fall in the national security arena. He was not sure about the position of municipalities - it may be that the large metros, like Johannesburg, may have to deal with security issues, but this would need to be verified. There were questions raised as to whether PAIA did adequately cover the issues.

Mr Mabunda agreed that it was possible that some municipalities may have classified information, and suggested that the law of general application would apply across all of them, and the checks and balances should still apply. There was a question of whether people could be barred from invoking PAIA to get access to classified information.

Mr Bloem thought that no distinction could be drawn between the larger and smaller municipalities. There was “stealing at all municipalities”.

The Acting Chairperson stopped Mr Bloem at this point.

Chairperson Tau, who had re-entered the room, suggested that Mr Bloem should be asked to withdraw this statement, as it was not correct that all municipalities were stealing.

Mr Bloem said that he did not want to withdraw that statement, but wanted to clarify it.

The Acting Chairperson said that she did not want clarification. If he would not withdraw that remark, the rest of the Committee would disassociate itself from that remark.

Mr Bloem said that he would not withdraw that remark.

The Acting Chairperson stressed that what Mr Bloem had said were not the views of this Committee, and were merely a personal view of Mr Bloem.

Mr Tau resumed the Chair. He wished to place on record that this was a multi-party committee and Members would have the opportunity to make their own points. For the purpose of this exercise, Members should exercise caution and respect, and not fall into the trap of “playing politics”. The Committee would distance itself from a sweeping statement that had departed from the presentation.

Corruption Watch submission
Mr David Lewis, Director, Corruption Watch, said that Corruption Watch was a very new organisation, formed shortly before submissions were requested from the public. Although it was set up following an initiative of COSATU, it was independently funded, with its own Board, and it was focused on combating corruption in South Africa. His comments would be general, rather than directed at specific clauses of the Bill. He noted that the Executive was on record expressing the gravity of corruption and its determination to fight it, whilst Minister of Justice, Mr Jeff Radebe, had noted that corruption posed a serious challenge to democratic transformation. Corruption Watch was pleased to see the provision that criminalised the classification of information for the purpose of hiding corruption. However, it believed that this Bill, in its present form, would seriously impede the fight against corruption.

Corruption Watch believed that the fight against corruption could not be separated from the imperative to guard national security. Corruption within the security apparatuses themselves not only stymied efforts to attack corruption across the board, but was in itself an attack on national security. Corruption Watch noted that corruption could not be combated without using the powers and resources in the criminal justice agencies, but said that these agencies also could not tackle this social problem alone. Alone corruption was often viewed as a crime without victims, it led to significant divergence of resources from the public, and disturbing erosion of trust between the public and its elected representatives. Even when government and the legislature proposed measures that were clearly for the public good, this was invariably treated with suspicion. A public that was both informed, and able to inform government of instances of corruption, was essential to combating corruption.

Corruption Watch took no comfort from assurances that it was not the intention of the legislature to impede the fight against corruption, but said that if any provisions in the Bill were objectively judged to have that effect, they must be removed. The increasing instances of corruption at second and third tiers showed that many individuals were willing to take advantage of their positions, including preventing others from reporting. Zero tolerance against corruption meant that nothing should be left to chance and that no loopholes should be left open.

Corruption Watch did not dispute the necessity to keep some information secret for the protection of national security. He noted the definition of “national security” in the Bill and said that South Africa’s national security was not currently under threat from any armed movement, internal and external. The main threats to South Africa arose from poverty, inequality, corruption and unemployment, which caused significant social unrest. Corruption, in particular, contributed to the persistent inequality and high levels of poverty.

Corruption was particularly rife in the institutions at the heart of defending national security. The SAPS was a hotbed of corruption. Corruption Watch had received reports alleging nepotism in appointments, falsification of statistics, contracts awarded to family members of those responsible for supply chain management, and private use of resources. Despite the fact that these were reported through internal chains, and up to National Commissioner level, and despite confirmation that there had been irregularities, nothing was done. However, corruption was not limited to these agencies, as Corruption Watch had also received over 1 000 reports of corruption in small municipalities, healthcare and education. Poor delivery from these systems caused social tension.

Mr Lewis suggested that it was necessary to provide a platform for the public to report its experiences, as well as a means for the public to speak to those in authority, which would show corrupt officials that the public was watching. There was every likelihood that information pertaining to corruption in the police and other parts of the security apparatus would fall foul of the provisions of the Bill, as currently drafted, despite the fact that combating corruption in these organisations would strengthen, rather than compromise them. Corruption Watch would shortly be releasing a report on the Johannesburg Metro Police, and this would not have been possible if this Bill were already in force.

Mr Lewis reiterated the point that information was the key ingredient to the fight against corruption. Even the most efficient and least corrupt force (which would not mean SAPS) would be able to confront corruption on its own, but would need testimony from individuals who were willing to speak out, and information must be put in the public domain, to ensure that the public was free to inform and be informed. This principle must be enshrined in the Bill. Currently, the Bill’s inflexible approach, which emphasised protection of state information rather than access to state information, would combat attempts to get a free flow of information.

Corruption Watch agreed with the submissions of the Legal Resources Centre on the Constitutionality of the Bill, with the submissions of ODAC on the impact that the Bill would have on whistle-blowers, and on PAIA and PDA. Whilst Corruption Watch would be happy to defer to others in relation to the precise drafting of the clauses, it wished to make comments on the values and practical impact of the Bill. The purpose of the Bill was stated as defence of national security, which was generally perceived as anything to do with the territorial boundaries and safety of the country. However, this was a negative definition. Furthermore, the inclusion of exposure of economic, scientific or technological secrets was open to abuse. Section 198 of the Constitution provided a far wider definition of “live in peace and harmony, and to be free from fear and want, and to seek a better life”. He suggested that anything that promoted inequality and disharmony could be perceived as a threat to national security. If people were fearful of the consequences of reporting corruption, that was at odds with these Constitutional values, and this fear would be exacerbated if the Bill were to be passed in its current form. The Constitutional meaning should prevail, so that if there was any conflict between suppressing information that may undermine national security, and promoting efforts to combat inequality, disharmony and fear, the latter must prevail. The present cost of corruption was about R25 billion annually.

Mr Lewis said that in answer to those who maintained that this Bill only sought to restrict information that would threaten national security, as defined in the Bill, he suggested that the Bill should be renamed as “The Protection of State Information that pertains to national security”. Government should initiate a major campaign to encourage the public to report information relating to corruption, including information on where it could be reported, and that it would not be criminalised. The legislature must attempt to expand people’s rights, not take them away.

PAIA guaranteed the right of access to information held by the state, and it was necessary to ensure that PAIA was not weakened by any other legislation. He recommended that the Committee study the submission of ODAC, and recognise, as stated by the SAHRC, that the state at all levels did not easily give access to information. Corruption Watch had tried to gain access to the Monase Report, and to a report by the Special Investigating Unit, but despite the fact that the persons involved had been given the right to be heard by the investigating authorities, and would be given this right again in court, access to that report was refused, and Corruption Watch had now commenced an application under PAIA, which would prove lengthy and costly. PAIA was not currently user-friendly to anyone who did not have resources to support lengthy litigation, and often, by the time the information was eventually released, it was devalued through lapse of time. Corruption Watch recommended that the costs should be reduced and the path to access information should be eased. It was opposed to any parallel legislation that could weaken PAIA, as this Bill was likely to do. He stressed that information “in the hands of the state” was merely information held by a state body, as information rightly belonged to the people. If there was a fear that the provisions of PAIA that permitted access to information might threaten the territorial integrity of South Africa, its Constitutional order, or safety and security, then PAIA must be corrected, rather than setting up an alternative regime. If this Bill was born out of concerns about the state’s inability to keep secrets out of the public domain, because of leaks in the security agencies, then better governance of those secrets must be introduced. IN other words, instead of setting up a new regime, the leaks must be prevented proactively.

Mr Lewis noted that a recent report entitled “Transparency: Daily lives and corruption: public opinion in South Africa” had examined corruption in six countries, and in all, the police services were the most corrupt body. 76% of all respondents (and 80% of South Africans) believed that ordinary people could make a difference to the fight against corruption, yet only 60% of South Africans (compared to 76% of all respondents) said that they would report corruption, and the likely reason was that they were fearful of the consequences and did not trust the institutions of state tasked with combating corruption. Corruption Watch had received many reports, but many people either declined to give their names, or articulated a fear of reprisals for reporting corruption, especially in smaller towns. This Bill added a fear of formal punitive sanction by the state. Many people had been misled by campaigns against the Bill, and this was likely to reduce their willingness to report corruption. Non government organisations would have an added risk and cost to fighting corruption, and the perceptions of the public, even if incorrect, were very strong. Prudence would triumph over valour, and the most severely disadvantaged South Africans would be denied a voice.

Mr Lewis summarised that Corruption Watch recommended, firstly, that the entire Bill be scrapped and that PAIA should be expanded to include information that threatened national security, and the governance of information pertinent to national security. If that suggestion did not find favour, then it proposed the renaming of the Bill, to emphasise that this was the only area in which information was protected. Any information that could lead to prosecution of corrupt actions should not be included under the definition of classified information. Members of the public must be encouraged to report information pertaining to corruption, and told where to report it, and should be assured that this would not be used against them.

Mr Nzimande noted the examples of investigation into metro police, and asked if Corruption Watch was aware that the Bill distinguished between valuable and classified information, and whether it thought a proper balance was achieved. He wondered if the register of classified information, referred to in clause 11(3), did not have a bearing on the arguments about conflict, and whether these provisions requiring reports on classification of information would need to be strengthened. He asked if Corruption Watch was suggesting that some of the offences should be dropped, and how it assessed the security risks.

Mr Matila noted the comment that the only matters that the Bill should cover would pertain to national security. He had some difficulty with the submissions, because most had raised issues about the credibility of those working in government, and took a rather pessimistic view of state organs, indicating a lack of trust. He believed that government was in fact attempting to deal with corruption head on.

Mr Bloem said that many complaints had been lodged about the SAPS. He asked if Corruption Watch was suggesting that passing the bill in its present form would lead to greater cover-up and more problems in getting reports of corruption.

The Chairperson said that Mr Lewis had indicated, at the outset, that he would be making a general submission, that would not address the specific clauses of the Bill. He thought the Committee could look broadly at the areas where it was suggested that there were problems. Although he did not want to deny Mr Lewis the opportunity to respond, if he wished, Members must accept that this was a broad presentation, and agree that everyone should be angry about corruption and be active in campaigning against it.
Mr Lewis said that he could answer some of the questions briefly. Corruption Watch was not suggesting that there were no systems to deal with corruption, but was saying that the public must be involved in the fight against corruption and could do this only by being given the right to inform, and be informed in turn. He thought PAIA was capable of dealing with the issues, if its exemptions were expanded, and this would create a regime that was in favour of giving access to information, rather than in favour of withholding access, as the Bill suggested. In addition, he reiterated that the security apparatus should see to fixing its own leaks, rather than introducing more restrictions on the public. His proposals around the renaming of the Bill were not made lightly, and should be quite specific to make it clear that on the one hand there was not access to information but on the other restriction of access. Any information that could lead to prosecution of corrupt actions should not be included under the definition of classified information. The Executive and Parliament should be encouraged to support a public education campaign to explain that this Bill was not about restricting information pertaining to corruption, but only that pertaining to state security.

Mr Lewis said that he was not sure that the register of classified information would be very informative; it was likely to be presented at a high level, and would not give details of what had been classified. He did not think that the offence of espionage should be removed from the Bill, because there was a need to protect state security in the narrowly defined sense. He reiterated that the imminent threats to the country came from social ills inside the country, including corruption. He said that if Corruption Watch was pessimistic about the state, it would not be doing its current work.

The Chairperson pointed out that nobody ever thought that 9/11 would occur, but it did. It was unwise to try to state that a country was, or was not, faced with certain threats. Complacency, especially in relation to instability, could work against a country. The Committee would look at what was best for South Africa. Every Member was committed to fighting corruption, and would give careful consideration to what the submissions had set out.

The meeting was adjourned.

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