Protection of State Information Bill: public hearing Day 3

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

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

All commentators giving submissions on day 3 of the public hearings confirmed comments made on the previous days that legislation to protect state information was needed, and that the current version of the Protection of State Information Bill was a substantial improvement on some earlier drafts, but still remained problematic. The main issues raised again related to the inter-relationship with the Promotion of Access to Information Act (PAIA), and the fact that clause 1(4) of the Bill attempted to oust the primacy of PAIA, imprecise wording, the criminalisation of possession of classified information, unduly harsh sanctions, lack of proportionality when weighing public interest against national security, the opt-in clause and delegation of powers.

The Congress of South African Trade Unions (COSATU), was concerned that the Bill ran the risk of entrenching a security state, particularly in light of the opt-in provisions on clause 3, which was far too broad, and essentially introduced the concept that the Department of State Security would become involved in matters that would be more properly covered in sectoral legislation. The Bill should be limited to security issues only. It was opposed to inclusion of economic, scientific and technological secrets. Disproportionate means had been suggested to deal with issues, which departed from constitutional values. COSATU wanted information pre-1994 to be automatically declassified, and not to remain in the hands of only one arm of the state. It believed that clause 1(4) was unconstitutional, and would also negatively impact upon legislation such as the Labour Relations, Environmental Management and Companies Act. Clause 6 would have to be redrafted as the current wording suggested that national security usurped all other objectives. Clause 12 left too much room for subjective interpretation. Clause 13 provisions were problematic because any member could classify, no matter the rank, and the lack of time frames for confirmation of classification was of concern. Clause 14 was still not adequate, and failed to take into account that classification in itself may be abused, although content may be able to be classified. The Bill failed to distinguish between wilful commission of a crime, and innocent persons who may be providing support to whistle-blowing against corruption. It disagreed that clause 43 was aligned properly to the Protected Disclosures Act (PDA) and Companies Act, and noted that the PDA was in itself too narrow. The penalties were seen as excessive and the shifting of the burden of proof in clause 43 raised a constitutional concern. Clauses 46 and 48 were far too wide. Whilst the media had its own problems internally that it must address, its vital role must be recognised and supported, and the Bill would significantly reduce investigative journalism. COSATU maintained the need for a public interest defence, which should particularly be available for whistle-blowers and the media.

The Legal Resources Centre expressed regret that the Bill had become a matter of dissent between political parties. Its written submission set out seven possible grounds on which the Bill could be challenged, but only some were examined in depth during the oral submissions. It was concerned about the lack of a public interest defence. Portions of documents that had nothing to do with state security should be able to be released. The delegation and powers of classification were problematic, as well as the steps to be followed to challenge a classification. The courts must remain the final arbiters on matters. The lack of specific time frames was problematic, and the penalties were disproportionately severe. The LRC proposed that the words “ought to have known” be removed from the offences clauses, and challenged the reversal of the onus of proof. Further details were given in relation to the procedures for declassification, and the Committee was urged to ensure that remedies for declassification were effective, fair and quick, with a possible solution being to have access to a judge, similar to the RICA legislation.  The inclusion of the opt-in clause was also described in more detail, and it was noted that it was inappropriate to allow the Minister to delegate powers that were essentially given to the security services, and that the absence of conditions to be fulfilled by an organ of state that opted in was open to constitutional challenge.

The South African Jewish Board of Deputies (SAJBD) proposed that all references to sentencing be removed from the Bill, leaving this entirely in the discretion of the courts. It also proposed that the words “ought reasonably to have known” be removed from the offences clauses. The wording of clause 12 was seen to be vague and instead of the word “includes”, the definition of national security should simply be worded as “national security means”. It too was opposed to including reference to economic, scientific or technological secrets. It suggested that clauses 14(3)(d) to (f) could be removed, as they were covered elsewhere, and could be misused. The point was debated whether a person could be prosecuted for revealing classified information if that classification had not been reviewed and confirmed by a review panel, and it was suggested that a court should be asked to rule on these instances. Although the public interest defence was partially covered, the point was made that a limited public interest defence should be included, as it would put an end to the debate, instil confidence and could do no harm, since it would be akin to the common law defence of necessity. Intelligence agencies should not be exempted from public scrutiny. Penalties for unauthorised disclosure should apply only to those charged with keeping the information secret, whistle-blowers should not be criminalised, and a truly independent Review Panel should be in place.

The Helen Suzman Foundation (HSF) noted that one of the shortcomings of PAIA, otherwise an excellent piece of legislation, was that it did not provide for administrative levels of appeal. It suggested a number of questions that the Committee must ask in relation to the Bill, around the question of achieving the correct balance. The HSF believed that legislation that relied on a primary driver of national security to limit the free flow of information could potentially place huge power in the implementers. For this reason, national security must be narrowly and clearly defined, which this Bill failed to do. HSF suggested that perhaps the premise for the Bill was incorrect, since it was founded on the notion that the citizens must defend their entrenched rights to have information placed in the public arena, whereas it was instead the state who should provide justification for limiting that right. Furthermore, the Bill confused classification and the need to manage information, and this was not helped by definitions of different types of information that did not align, as well as the juxtaposition of valuable and classified information. The fact that organs of state could opt in conflicted with the notion that the Bill should be narrow in scope. HSF would prefer to see a presumption, as in the USA, in favour of declassification. A researcher from the HSF argued that it was incorrect to assume that the state should protect national security, as it should instead protect the public good, of which national security was only one component. In addition, he suggested that that the information in the hands of the state was not to be regarded as the state’s information, as it was all essentially information that should be available to the public, and all official documents were in principle public documents, unless justified otherwise by the state, for reasonable, clear and precise reasons. HSF was generally concerned with the vague and over-broad language used.

The Nelson Mandela Foundation (NMF) focused on four points, and suggested that it would be possible to fix the problems. It had regarded the 2008 Bill as generally sound and defensible. It agreed with other comments on the need to harmonise the Bill and PAIA, and also referred to a broader “family” of information legislation that included Acts 2, 3 and 4 of 2000, archives legislation and the Protection of Personal Information Bill. It preferred the previous formulation of clause 1(4), which confirmed the primacy of PAIA. It urged that a public interest defence be included, and suggested that a compromise might be to draft the clauses dealing with offences to focus on harm caused, rather than the fact of classification. The public interest override should be reformulated so that it was not in line with the current PAIA provision, which was too restrictive, but took into account other proposals by the South African Human Rights Commission. The NMF favoured the automatic declassification of all pre-1994 documents, and 20-year declassification of all post-1994 documents, as proposed in the 2008 version of the Bill.,

Members asked for comment whether all applications should be brought under PAIA, whether the Bill should be considerably restricted in scope, and whether it was believed that valuable information should be removed from the Bill. They questioned how a public interest defence could be linked with clauses 14 and 47, and wondered if the problems lay in the drafting or implementation. Comments on the delegation to heads of organs of state were interrogated further, as well as concerns about time frames, and presenters were asked if they had alternative suggestions. The Committee asked in what circumstances a person could approach a court directly, and wondered if all internal remedies would first need to be exhausted. They questioned the effect of the minimum sentences in the Bill, and also asked for further details on the SAJBD proposal that all references to sentences be removed. They wondered if it would be possible to improve the Bill through redrafting, and questioned how the NMF felt that clauses from the 2008 should be re-inserted. A Member wondered if it would not be possible to introduce more clarity through policies, guidelines and regulations, rather than tinkering with the Bill itself. Another Member asked if this Bill was akin to old apartheid-era legislation. One Member disagreed with the view that there was no place for criminal liability arising from negligence. Comment was requested on whether this Bill infringed upon the exclusion provincial legislative competencies in relation to archives. Members debated the concepts suggested by HSF on the notion of state information.

Meeting report

Protection of State Information Bill (the Bill): Public hearings day 3
Congress of South African Trade Unions (COSATU) submission

Mr Zwelinzima Vavi, General Secretary, COSATU, said that COSATU had been engaging on the Bill since June 2010, and conceded that it was considerably improved from the original version. There were, however, still some concerns, set out more fully in its written submission.

COSATU was not opposed to having classification legislation, and stressed that openness, transparency and accountability at all levels of government were necessary. COSATU pursued the values set out in Articles 6 and 8 of the Freedom Charter, specifically freedom of expression. This Charter and the Constitution upheld the notions of free exchange of ideas, freedom of the press and other media, freedom to impart ideas, and access to any information held by the State, subject only to necessary limitations. These were not part of the “miserable compromise” that was reached in relation to property clauses, but were fundamental freedoms.

The written submission spoke broadly to technical matters. In particular, there were concerns that the Bill posed the threat of entrenching a security state. Clause 3(2)(a) said that the Bill automatically applied to security and intelligence services, but COSATU was concerned about the opt-in clause for “any other organ of the state” at all spheres and levels of government. This was far too broad, and might include state owned companies. In the current context, there were concerns about extending the scope beyond what was necessary.

COSATU was concerned that the Bill also dealt with matters that should not fall under the Department of State Security (DSS). It felt that some of the penalties were far too severe. He questioned, for instance, why laboratory matters should be brought under the purview of the Bill. He fully agreed that those who had released classified information should be sanctioned, but this should be catered for in other sectoral legislation, and not under security legislation. The Government Communication and Information Systems (GCIS) notification of 4 December suggested that the Bill could be used to protect companies from being hijacked by illegally altering information in companies' registers, but this was surely another matter that should be dealt with in legislation specific to the Department of Trade and Industry. National Archives were mentioned in this Bill, although they fell under the Department of Arts and Culture, and therefore the legislation pertaining to archives should be strengthened, rather than elevating crimes in relation to archival material to the same status as security legislation. A further concern was that disproportionate means had been set out to deal with the issues, which resulted in a departure from Constitutional values.

Mr Vavi noted that transitional provisions were set out for information already classified under the Protection of Information Act, 1982, and the Minimum Information Security Standards (MISS). This would include state information classified before and after 1994. The fact that some information classified pre-1994 remained classified was, by itself, problematic, but another concern was that the security services had the ability to decide how it should be handled. A far more inclusive manner of addressing this era’s information should be found, so that it was not left in the discretion of only one arm of the state.

Mr Vavi then commented on the specific provisions. Clause 3 allowed for all information in the security and intelligence services to be classified, but COSATU argued that the Minister should not have any blanket right to declare all information sensitive and requiring protection. He pointed out that had the Bill already been in force, perhaps the disputed and incorrect lease agreements for police premises could have been classified and put beyond question. COSATU did not support automatic rights of classification, even in the security services, and said that the Minister’s discretion to declare all information classified that pertained to national key points was far too wide. The definition of “national security” in clause 1 created the potential to justify classification of an overly-broad range of documents, and this could include economic, scientific or technological secrets vital to the Republic. COSATU felt that the Bill should be restricted to security legislation, and economic, scientific and technical secrets could be covered in other legislation. Already, there was a tendency to attach a “strictly confidential” tag to most documents. He urged that matters such as terms of loans in the state-owned companies and foreign agreements should be able to be publicised.

Mr Vavi discussed the impact of the Bill on other pieces of legislation, particularly the Promotion of Access to Information Act (PAIA), which was critical to COSATU. It was incorrect for clause 1(4) of the Bill, essentially security legislation, to be able to oust a fundamental piece of legislation supporting Constitutional rights. The written submission detailed further objections. In addition, he pointed out that section 16 of the Labour Relations Act (LRA) provided unions with a right to demand access to information in the course of collective bargaining, and irregularities may be identified in the course of inspecting these records. If this Bill were passed in its current form, an employer could claim that this information must be withheld because it  contained scientific, technological and economic secrets. Section 31 of the National Environmental Management Act also contained detailed information on access to information, and this was clearly in the public interest. The Companies Act also provided for access to information by trade unions and shareholders. All of those were threatened by the Bill because of the wording of clause 1(4).

Clause 6 outlined a number of values, and most were appropriate, but these principles were contradicted by other clauses of the Bill. Clause 6(j) would require redrafting, as it seemed that national security usurped all other objectives, whereas disclosure in the public interest may be required.

Clauses 8 and 9 of the Bill dealt with valuable information, but the emphasis was on minimum standards for retention or protection of valuable information, and not on prohibition of the disclosure. COSATU supported the strengthening of standards, but believed this should be not be regulated and enforced through intelligence services. The connotations were excessive. The overlaps and inconsistencies with the National Archives and Records Services Act (the Archives Act) had to be corrected, particularly in relation to the offences and penalties.

Mr Vavi noted, in relation to clause 12, which set out categories, that information could be classified as confidential, secret or top secret. The level of harm caused determined the categories and penalties, but there was far too much room for a subjective interpretation of the harm. He reminded the Committee that human beings would decide upon the level of classification, and their own mindsets would influence their decisions.

Clauses 13(6) to (9) allowed any members of security services to classify information, and did not limit this power to the head or senior staff member, nor insist upon delegation in writing.  Although the classification must later be approved by the head of the organ of state, there were no time frames set out, nor was it stated whether the information could be classified indefinitely until otherwise decided. This clause should be re-drafted. COSATU did not believe there was justification for special treatment of security services.

Clause 14(2) noted that classification could not be used in certain circumstances, including hiding corruption, avoiding embarrassment, or lessening competition. Although these constituted a significant improvement on the past wording, COSATU believed that they were not adequate to address the concerns. Firstly, the words “in order to” or “be used to” suggested that the motivation would be done to hide an irregularity. Mr Vavi pointed out that specific information could be properly classified, but the fact of classification could itself create the possibility of abuse. He cited the example of Cabinet documents, saying that in the normal course, these were classified. Various Cabinet documents were implicated in the Arms Deal. This did not mean that all Cabinet documents should be automatically declassified, but in practice it would be very difficult to prove an improper intention to classify in relation to those documents. COSATU therefore felt that clauses 14(2) and 47 contained loopholes that allowed for abuse of classification, irrespective of whether the classification , on the grounds of content, was legitimate. It did not think that these clauses provided an adequate disincentive. Efficacy would be enhanced by providing for a public interest defence to prosecution for possession or disclosure of classified information.

He followed on by saying that trade unions were exposed to fraud and corruption, and sometimes were themselves participants to it. By nature, it was mostly the trade unions and shop stewards who were the whistle-blowers. It was of extreme concern that this Bill criminalised any possession of information by an unauthorised person, as well as a person who assisted the person in unlawful possession. The Bill failed to distinguish between wilful commission of a crime, and innocent persons who may be providing support to whistle-blowing against corruption. COSATU and the trade unions constantly received documentation that had illegally come into possession of other people. Anything that undermined the ability and protection of whistle-blowers would undermine the gains scored in the last eighteen years.

COSATU disagreed that clause 43 was aligned properly to the Protected Disclosures Act (PDA) and Companies Act. It believed that the offences and penalties would have a negative effect on disclosure of corruption. In addition, the PDA itself was too narrow as it currently provided protection only to employees, and not to state departments, and neither the PDA nor Companies Act dealt with classified information, and were unable to render protection to a whistle-blower if access was not authorised in the first place. The criminal penalties would “intimidate everyone into a cocoon”.

Clause 49 penalties varied between ten and fifteen years. Whilst COSATU believed it was necessary to protect information relating to intelligence and security agencies, the public also required to be protected. There would always be a temptation for individuals to manipulate, sidestep and pursue personal interests, and he urged that no Bill should provide more space for individuals to amass more powers.

A further criticism related to clause 43. Ordinarily, a worker seeking protection under the PDA would be doing so within a labour context, and the employer would bear the onus of proof. The effect of clause 43 was to shift the burden of proof from employer to employee, with the employee in future having to prove that the disclosure was protected. This undermined the presumption of innocence and raised constitutional concerns.

COSATU thought that clauses 46 and 48 were capable of such broad interpretation that they could criminalise those who disclosed information in the public interest. For example, clause 36(1)(a) stated that it would be an offence to release information that could, directly or indirectly, benefit a foreign state. It was quite possible that a person could disclose information that primarily exposed serious irregularities, but could have a side-effect of benefiting another state. He thought that the emphasis must be on the intention, and that significant redrafting of these clauses would be needed to distinguish the offences from legitimate whistle-blowing.

COSATU had consistently raised its concerns about media issues. He noted that the media itself was challenged with problems of bias, level of reporting, and monopolies that controlled the free flow of information through four or five large companies, as well as lack of diversity and, at times, lack of morality. All of these issues were serious, but in the absence of any other viable alternative, it must be noted that the media remained the broadest form of disseminating and ensuring access to information. The media’s own problems should not be addressed in this Bill, but by ensuring greater diversity, ending of monopolies, and press codes. The media’s critical role in maintaining democracy was illustrated by two media stories in the previous year about ministerial behaviour, which were only exposed through the media’s excellent work. Any  state censorship and persecution of the media would exacerbate the media’s own problems. It was necessary to enhance investigative journalism, in the public interest, but this Bill significantly restricted that objective.

Mr Vavi submitted that various technical amendments were necessary to achieve an acceptable public interest defence. He reiterated that COSATU accepted that an appropriate form of state security legislation was required, and accepted that some restrictions on access were necessary, with the necessary safeguards. COSATU maintained the need for a public interest defence, which should particularly be available for whistle-blowers and the media. He did not believe that there would be scope for abuse, since this defence would not be available to those who could not demonstrate a valid public interest.

Mr Vavi summarised that COSATU’s engagement was founded on the values it had historically upheld. COSATU believed that the Bill, in its current form, would make serious inroads into values of transparency and accountability, and would entrench authority through state security. COSATU remained committed to engaging with the relevant processes to reach an acceptable final product. He emphasised that this submission was not based on any partisan bias, and all views expressed were those of COSATU as a whole.

Mr D Worth (Free State, DA) said that there had been concerns that the legislation could be unconstitutional, particularly because of the ousting of PAIA. The suggestion had been made that PAIA was working and acceptable, and that it should be used for all other matters, with the scope of this Bill being very narrow and restricted strictly to security matters.

Ms Prakashnee Govender, Parliamentary Officer, COSATU, said that not only PAIA, but also the Companies Act and National Environmental Management Act, emphasised access to information, whilst the Labour Relations Act facilitated whistle-blowing. It was indeed of concern that the Bill stated that it would have primacy over any other legislation.

Mr R Lees (Kwazulu Natal, DA) noted the concerns on the scope of the Bill. He questioned if COSATU also was proposing that valuable information be removed from this Bill, so that it would be restricted to matters of national security. |

Ms Govender agreed that ideally all references to valuable information should be removed; whilst there was a need for regulation around valuable information, this should be placed in sectoral legislation, not under this Bill.

Mr Lees questioned why none of the Members of Parliament aligned with COSATU had voted against the Bill in the National Assembly, and whether COSATU would be able to persuade those in the NCOP to do so.

The Chairperson said that Mr Vavi should not respond to the last part of the statement, as it was a political statement.

Mr Lees raised a point of order that Mr Vavi himself had made numerous political statements throughout the presentation, whilst political statements made on the previous day had not been allowed.

The Chairperson ruled that Mr Vavi could not force any Members of Parliament to vote in any way. This was an organisational matter.

Mr Lees responded that, as a matter of fact, there were MPs aligned to COSATU.

The Chairperson countered that all MPs represented parties, that were registered under the Electoral Act, and ruled again that votes in the House were dealt with by registered political parties, not COSATU.

Mr T Chaane (North West, ANC) noted COSATU’s agreement with clauses 14 and 47, and, whilst he noted the concerns with the use of the words “used to” or “in order to”, he thought that these were aimed at  addressing possible abuses. He noted that the head of an organ of state may have to classify information, but it would be difficult to prove an intention to conceal and therefore to sanction, but asked COSATU to clarify how the public interest defence was linked to a possible loophole in these clauses.

Mr S Mazosiwe (Eastern Cape, ANC) also asked for clarity on clause 14. He agreed with Mr Chaane that this clause sought to limit or curb abuses in the Bill, and asked what COSATU thought might be needed to improve the clause. 

Ms Govender confirmed that although COSATU supported clause 14 in principle, it laid too much emphasis on classification done in order to hide some irregularity, whereas that was not always the case. The nature of the information was the determinant of whether it could properly be classified. Classification in itself could be abused. The linking of the public defence to these clauses provided a safeguard where the clause itself might not cover all situations.

Mr Mazosiwe wondered if the problems lay with the drafting, or the implementation of the law. COSATU had made the point that it was necessary to interrogate implementation of government programmes. He welcomed the input, which gave a broad perspective on the Bill.

Mr Bloem (Free State, COPE) quipped that COSATU may be worried, when it raised these issues, of being accused of being a foreign spy.

Mr Vavi stressed that the views he had presented were in fact the views of more than 2 million members of COSATU. He reiterated that COSATU was not aligned to any political party, and was not attempting to score points. COSATU was not concerned what labels may be attached to it and was raising genuine concerns.

Mr Bloem noted that reference to the Freedom Charter and asked if the present Bill contradicted that Charter.

Ms N Ntwanambi (Western Cape, ANC) asked exactly where the problems were in the Bill. She also asked if COSATU did not think that sections 32 to 36 of the Constitution covered the concerns.

Ms Govender said that COSATU was concerned about the shifting of the burden of proof, the fact that a person would have to approach the court rather than having internal remedies, the hindrances to freedom of expression, and the potential undermining of the responsibilities of whistle-blowers and the broader public.

Mr Bloem asked if this Bill was likely to affect Members of the affiliated trade unions, particularly POPCRU.

Ms Govender said that POPCRU was the union for police and correctional services employees. The intelligence and military services did not allow unions. Employees in the parastatals were able to opt in, and Transnet and the public services staff would be in other unions. COSATU did not think the issues were limited to protecting workers’ rights, but also encouraging the citizenry to protect the broader public interest. Nobody should be forced to make the choice between protecting his or her own job and compromising the public interest.

Mr J Gunda (Northern Cape, ID) asked for clarity whether COSATU was opposed to the head of organ of state being able to classify.

Ms Govender responded that although COSATU had no in-principle problem with power or authority being given to the head of an organ of state, it had raised questions as to what the recourse would be for a person wanting to challenge the classification. At the moment, a review must be brought to the Ministry of State Security. COSATU  believed an external independent  review mechanism was needed, firstly through the Classification Review Panel, or something similar, as an intermediate structure, then to the Court. The challenge should not be directed at the structure that classified, as there would be a conflict of interest. The head of an organ of state would have authority to classify. The problem with state security and intelligence operatives was that this power was extended broadly to all officials and members, and there were no additional safeguards or counter-measures to ensure that the power was not abused.

Mr Gunda asked for further comment on COSATU’s objections to the time frames and sentences.

Ms Govender said that, other than in clause 19, no time frames were set out. In the case of security operatives, there was no time frame for confirmation of classification by the head of the organ of state. COSATU felt that one should be inserted, as well as keeping a record that the review by the head of the organ had taken place. This would not be overly onerous.

Ms D Rantho (Eastern Cape, ANC) asked if COSATU thought it proper that the State should manage information that could compromise the security of the nation, and whether it believed that the Bill was too broad to allow for proper management of information.

Ms Govender confirmed COSATU’s view that the legislation was needed to replace the 1982 Protection of Information Act (the 1982 Act), but felt that the scope needed to be properly defined. At present, the scope was too broad and vague, and the provisions were open to abuse.

Legal Resources Centre (LRC) submission
Adv George Bizos, Representative, Legal Resource Centre, noted that the LRC had for many years attended to constitutional work, represented other non-government organisations, and, since the early 1990s had cooperated with the democratic government in drawing legislation. It was funded by those who wanted to see justice done. It often was joined as amicus curiae in court applications.

The LRC was concerned that the Bill, in its present form, would be challenged by numerous parties. The written submission (see attached document) set out seven possible reasons for challenge. The LRC was firstly concerned about the lack of a public interest defence. Adv Bizos expressed his regret that this had become a matter for dissent between political parties. He cited a hypothetical example that, should the Bill be passed in its present form, a claim could be made that something like a lease agreement, which might have been entered into to benefit an office bearer, must be classified in its entirety, because it contained one sentence to do with a special storeroom for ammunition. The fact that a person who released information on that lease, which was clearly in the public interest, was “outrageous”. The Bill had to provide that even if one part of the document could be classified, the rest, which had nothing to do with the security of the state, should be severable. There were difficulties with who was attending to the classification – either the designated person, a delegated official, or a review body, and he urged that people attending to this must have a certain standing, integrity and honesty. Adv Bizos stressed that in relation to matters of justice, the courts must e the final arbiters. He did not believe that irresponsible allegations that the courts did not know what they were doing should be allowed. He noted that when government, under the Presidency of Nelson Mandela, had lost its first constitutional challenge to a proclamation, the then-President had immediately gone on record as noting that government would obey and respect that decision. He said that having a Panel as the apparent arbiter of whether a classification was good or bad may be seen as an exclusion of the court’s jurisdiction, and that too may be good grounds for a constitutional challenge.

LRC also objected to the lack of specific time frames in portions of the Bill. LRC was not happy with the current procedure for challenging a classification. He pointed out that, at present, if vital information was received that revealed abuse of power, fraud or corruption, the GCIS could be asked to publish the information, or the Judge President could be asked to rule that the information may be revealed. This would no longer be possible if the Bill were to be passed. LRC was also concerned at the penalties, which it regarded as disproportionately severe. He said it would be a brave person who would risk exposing something that was in the public interest if that person was at risk of having these penalties imposed. Whilst LRC fully agreed that exposure of operational information that was vital to the security of the country should be sanctioned, it felt that imprisonment for exposing corruption would be undemocratic and unreasonable and he doubted that the courts would give effect to it.

LRC was further opposed to the words “or ought reasonably to have known” in the offences clauses. He pointed out that legislation that tried to require a person in possession of stolen goods to prove that he did not know that the goods were stolen had been declared unconstitutional. There was no excuse in a democratic society for breaching constitutional guarantees to try to find a solution. Similarly, that a person “ought to have known” was not sound. The reversal of the onus of proof was not constitutional.  

In summary, Adv Bizos said that Members of this Committee and the National Council of Provinces (NCOP)  would have to decide whether they were prepared to take a chance and pass the Bill in its current form, despite several warnings from those with good legal reputations that the Bill may not pass constitutional muster, or whether to remedy the Bill by making the necessary amendments, sending the Bill back to the National Assembly (NA), and, if those amendments were rejected, to approach the Constitutional Court for a ruling. The President could also send a Bill through to the Constitutional Court. He pointed out that section 75(1)(c) of the Constitution required the NA to reconsider a Bill when it was returned from the NCOP, and pass it, with or without amendments, or to decide not to proceed. He urged that there should be confidence in South Africa’s strong judiciary to solve the problems that was dividing the country. Dialogue was a prime way to solve disputes.

Mr Thembeka Ngcukaitobi, Representative, Legal Resources Centre, said that the public interest defence had received a great deal of attention already and he would not repeat the points made. Instead he would focus on the remedies for improperly classified documents, the low threshold for criminal liability and the reversal of the onus, and improper delegation of authority to classify, including clause 3.

Mr Ngcukaitobi cited the example of a person who came into possession of classified information whose publication would clearly be in the public interest. That person was committing an offence of receiving the classified information, another of possessing the information, and yet another of disseminating, should he publish. However, the classification itself may have been mistaken, perhaps through improper delegation of authority, or because the substance of the document was not capable of being classified, or because the classification was done in an attempt to cover up corruption or wrongdoing. The Bill, as currently worded, nonetheless required that person to return the document to the South African Police Service (SAPS), failing which a criminal sanction of between five and twenty five years may be imposed. That already created a climate of fear that was inconsistent with the spirit of the Constitution. He urged that the Committee should remove these provisions, so that people should be free to possess and disseminate information, provided that it was not information that would threaten national security. The very fact of possession being criminalised was contrary to freedom of expression, and right of access to information.

He further pointed out that in this hypothetical situation, there could be some urgency, because money could be misappropriated and disappear. However, the individual with the information would be obliged to use clauses 14 and 19 to ask the official to declassify the information. COSATU had already outlined the absurdity of seeking declassification from the very same official who had classified, and the minimal chances of success. There was no opportunity to approach an independent organ of state. If he was able to show that the information disclosed the commission of an offence, it could still take between 14 and 30 days to get the decision on declassification, which was far too long, given the purpose of the request. That person did not have the option of going straight to court, because clause 32 required him first to exhaust the internal remedies. By the time the decision was given, nothing useful would be achieved with the information. He asked that the Committee should address the remedies for declassification, and ensure that they were effective, fair and quick. The current mechanisms were burdensome, circuitous and would defeat the purpose of the Bill. A declassification regime must be impartial and efficient. The current regime was open to constitutional attack.

Mr Ngcukaitobi made the point that this was not a radical proposition, as the Regulation of Interception of Communications (RICA) legislation provided that an applicant could approach a judge in chambers. There was no reason why something similar should not be built into this Bill. That would deal with a number of the objections to the public interest defence, although the LRC still supported the proposition that a public interest defence should be able to be raised before a judge.

Mr Ngcukaitobi moved on to the threshold for criminal liability. The Bill, in several places, made reference to “or ought reasonably to have known” as an alternative to actual knowledge. There was no certainty as to what exactly it meant. In addition, the burden of proof, which normally rested on the state, was now being shifted to the accused. Under the common law, it was inappropriate to set such a low threshold for criminal liability. Whilst this did apply to an offence such as culpable homicide, the penalties for culpable homicide were relatively low in relation to those in this Bill, where a person could be imprisoned for 25 years for failing to think properly about something, but without having actual intention. An offence in a Bill should be phrased in clear and precise terms before it could attract criminal sanctions, and a person should have actual knowledge of the commission of an offence. LRC urged the Committee to remove the phrase “or ought reasonably to have known” from the Bill, so that actual liability, based on actual knowledge, was the standard. This was even more imperative in light of the severe penalties that the Bill contained.

Mr Ngcukatoibi then dealt with objections relating to the powers to classify. The Bill was to be implemented by bureaucrats in Pretoria. Ordinarily, authority would reside with the relevant ministries. It was understandable that power to classify and declassify must be within the security agencies. However, clause 3(2)(b) of the Bill allowed that the Bill could be made applicable to any organ of state that applied to be included, even if that organ had no discernible interest in the classification process. This was constitutionally problematic, as it could allow an organ of state that was not connected with security agencies to exercise drastic and far-reaching powers. The Constitutional Court had given consideration to the question of when power could be delegated to another organ of state. Mr Ngcukaitobi suggested that if the power was legislatively prescribed as lying with the security services, it was inappropriate to allocate the same legislative authority to the Minister, and allow for its further delegation. In addition, the Bill was silent on what conditions must be fulfilled by an organ of state that applied for power to classify. This was potentially open to abuse. The term “organ of state” was very broad, and could include virtually any entity, provincial or municipal, as well as a number of other bodies, and the power to classify could be sought for the purpose of hiding corruption, despite what was said in clause 14. If there was to be any delegation of power, then at the least the Bill should set out clear guidelines and conditions to be fulfilled. This was another aspect on which the Bill was subject to constitutional challenge.

Mr Ngcukaitobi stated that other issues were more fully set out in the written submission.

Mr T Mofokeng (Free State, ANC) noted that even if a document was leaked, it should not lose its status of classification. He wondered if a person who felt that a document should be disclosed, in the public interest, should not immediately approach a court to get a pronouncement on the status of that document.

Mr Ngcukaitobi responded that this point was addressed by the Constitutional Court, in the matter of Independent Newspapers v Minister of Intelligence, which confirmed that even if a document was leaked, its status as a classified document would not be lost. Parliament was engaging in a serious process to replace MISS and the 1982 Act, and the Bill must encourage freedom of expression. The LRC believed that the current wording departed from Constitutional rights.

Mr Worth asked whether the LRC thought that it was possible to “panel-beat” and improve the Bill. PAIA seemed to be working. He questioned whether the override clause 1(4) could not be removed, and the Bill’s scope restricted to matters of safety and security.

Adv Bizos noted his objection to terms such as “panel-beat” and stressed that much of the Bill was not objectionable. Seven matters had been raised by the LRC. The LRC had been approached on a confidential basis, to give advice in relation to other legislation. He suggested that the LRC would be open to giving advice on any proposed amendments that may be suggested. He did not think that giving advice in this venue would be appropriate, nor should the advice be given in a vacuum, or on general propositions.

Mr Ngcukaitobi said that although clause 1(4) currently was worded to oust PAIA, the original drafts, in 2008, recognised the supremacy of PAIA in cases of conflict. It was not clear why this change was made. LRC believed that PAIA was intended to cover access to information and it was inappropriate to introduce anything that trumped PAIA, which was constitutionally mandated legislation. For these reasons, he reiterated LRC’s views that clause 1(4) should be removed.

Mr L Nzimande (KwaZulu Natal, ANC), noted that much had been said about the tedious nature of the system. He wondered if the policy, the regulations and guidelines for implementation could not address these points, and if the Bill should not rather provide a framework. Mr Nzimande accepted  that, in practical terms, the process currently set out could lead to delays.

Mr Nzimande noted the concerns on the penalties and asked if the Bill should not separate out the issues of classified information and valuable information.

Mr Nzimande asked if the LRC could suggest some way to allay the fears of the public that they may be charged for releasing information. He wondered if the fears really were linked to the harsh sentences, or to the mere fact of prosecution and a criminal record.

Mr Ngcukaitobi thought that the fears would be alleviated by having a public interest defence, in addition to the public interest override, by proving a system for immediate and effective declassification, and by recognising the public’s need to know.

Mr Nzimande asked for comment on the preamble and values set out in the Bill. He also wanted more comment on the phrase “ought to have known”, giving his view that clause 15 might mitigate that.

Ms Ntwanambi raised a hypothetical example of classified information that might relate to waste from a nuclear power station. She asked who should have powers to delegate, if not the Minister.

Mr Lees also referred to the objections to delegation of authority. One solution would be to restrict the Bill to the security cluster only, with no delegations allowed anywhere else. Another might be to define how and when the delegation would happen. He asked which solution would be more appropriate.

Mr Ngcukaitobi said that this decision was up to Parliament. However, the LRC had suggested that security legislation should be restricted to security matters, and should therefore deal only with the army, intelligence services and police services. Other issues were already covered in PAIA. LRC had suggested that clause 3(2)(b) should be removed altogether as clause 3(2)(a) properly defined the scope. If Parliament wanted to expand on that, then it should prescribe how heads of state should exercise power.  

Ms Ntwanambi wondered if this Bill could be compared to the Internal Security Act, which allowed a person to be detained without charges, for several years.

Adv Bizos said that unfortunately partisan views could be sparked by use of metaphors and similes that clouded the issues. There was nothing in this Bill that could be compared directly to the apartheid legislation, and an attempt to make a comparison was not helpful to anyone. People who had lived through the years from 1948 to 1994 years knew only too well what the laws meant in practical terms,  and anyone who was suggesting that the present government was following that route was misrepresenting the position and making it more difficult to find solutions. There was no doubt that security legislation was needed, but the LRC was stressing that it should not contain such wide powers, such harsh punishments, or delegations. He suggested that the discussions should focus on these points, rather than attempting to draw comparisons with the past.

Ms Ntwanambi asked for clarity on the points about the independence of the Panel.

Mr Chaane noted that the public defence clause was not necessarily linked to clauses 14 and 37. He asked if the inclusion of provisions to state what was proper, and what was improper classification, would sufficiently deal with the issues.

Mr Chaane said that he had always been under the impression that, despite minimum sentences being inserted in Bills, the judiciary still retained a discretion to reach an appropriate sanction. Almost all submissions had complained about the harsh sanctions. He asked if the problem lay with the formulation of the offences, which would dissuade people from publishing, or the level of sanction.

Ms M Boroto (Mpumalanga, ANC) realised that the offence of espionage was treated differently, from a sentencing point of view. If the court could substitute its own sentence, this may deal with the objections.

Adv Bizos said that a Court did have a discretion to depart from prescribed sentences, but this had to do with who had the duty to prove that the prescribed sentences were inappropriate. No onus could be put on the accused to state that the sentence was inappropriate. He reiterated that there was a fundamental difference between wilful and negligent conduct, and the legislature must give guidance on the mitigating factors. He was not sure whether a magistrate or judge would be keen merely to caution and discharge, given the harsh sentences that were set out.

Mr Chaane said that the Bill was likely to be challenged, in its current form. He asked how the current wording would impact upon public representatives, who, by virtue of their offices, came across all manner of information, classified or not. The Public Protector had raised concerns about this on the previous day.

Ms Boroto referred to the point that the Bill was not aligned to PAIA, but said that section 41 of PAIA also provided that information could be refused, on the same grounds as the Bill, whilst other grounds for refusal went beyond the Bill. She wondered why this was thought to be inconsistent.

Mr Bloem thanked the LRC for standing firm and defending the rights of those opposed to injustice. He asked for comment on the suggestion, by the Public Protector, that the requirement to deliver classified documents to SAPS would place the SAPS above the Chapter 9 institutions.

Mr Bloem asked for the LRC's views on the balance to be achieved between transparency and secrecy, which lay at the heart of the Bill.

Mr Lees said that some key issues had been identified, but asked if the LRC was happy with the definition of “national security”. Mr Lees thanked the LRC for its indication as to how the matter could be referred to the Constitutional Court.

The Chairperson said that he had been under the impression that the Bill did recognise the role of the court, such as clause 32, relating to applications to Court. A requestor could approach the court directly in certain urgent instances, for declassification, which had a bearing on the comments on the time periods. He asked what the LRC was proposing instead.

Adv Bizos explained that there were still problems around the requirement to exhaust all internal remedies. A court would be reluctant to, or make refuse to make a decision, even on an urgent basis, if there were alternative remedies. Those remedies were the long processes outlined by Mr Ngcukaitobi. In its current formulation, the Bill did not set out any procedure for seeking urgent relief. The exclusion of the court, by implication, may be unconstitutional.

The Chairperson referred to Chapter 7, which spoke to the Classification Review Panel. Questions had been raised around its independence, and the processes set out for appointment, configuration and operations seemed to indicate that it would be independent, and it would have to receive reports and in turn account to Parliament, and would receive a direct allocation, not via the Ministry. He asked for comment.

The Chairperson asked what remedies the LRC proposed in the case of improper classification.

A number of the questions were not answered directly by the LRC. Adv Bizos indicated that the LRC would prefer not to comment in isolation, or give advice without the opportunity to study draft wording for clauses, and to consult internally, and the questions were not pursued.

Jewish Board of Deputies (SAJBD) submission
Mr Steven Gruzd, Senior Researcher and Diplomatic Liaison Officer, SAJBD, said that the SAJBD, over the last one hundred years, had emerged into the representative body for South African Jewry, and much of its work related to human rights. It strongly supported freedom of expression and the right to information, and believed these had to be strengthened. Although on the receiving end of a decision not in his or her favour may be dissatisfied with the result, it was important to strengthen all the systems. SAJBD was concerned about the implications of this Bill for the democratic nature of South Africa. It was ready and willing to help with drafting that would improve the law, if required.

SAJBD welcomed the constructive amendments made so far, but believed that further improvements could be made in the interests of constitutionality. The SAJBD believed that the minimum sentences were excessive and this would make it difficult for the court to judge fairly on the merits. It would prefer to leave all sentencing entirely to the discretion of the court, and also proposed that clause 36(4) should be amended so that “compelling circumstances” were not required.  Each case would be judged objectively and on its own merits.

SAJBD urged that negligence as one of the mens rea requirements (as the phrase “ought reasonably to have known”) should be removed. Security offences were traditionally founded on intention, whereas the Bill departed from this to introduce the possibility that a circumstance or result may be foreseen, but the person was reckless in disregarding it. There was no rational reason why statutory offences should not be limited to actual intention and desire to subvert the state’s interests, not mere disregard as to whether this happened. Imposing of a jail sentence for negligence would be extraordinary.

The Bill had already corrected many anomalies, from the initial drafts. The heart of the Bill was found in clause 12, dealing with protection of state security. This must be distinguished from political or individual interests. SAJBD agreed that it was vital to protect national security, which was defined. However, the use of the word “includes” in that definition created the threat that additional unidentified criteria may apply. The Constitutional Court had given strict guidelines on the use of the word “includes”. SAJBD proposed that “includes” should be substituted, in that definition,  with “means”. Another objection was that the reference to the “exposure of economic, scientific or technological secrets” was too broad. Other criteria in that section would take care of these interests.

Mr Gruzd pointed out that clauses 14(3)(d), (e) and (f) were already covered in the definitions, and there was therefore no need to enumerate and address them separately in clause 14. He suggested that the Constitutional Court may rule these subclauses to be over-broad and unconstitutional. The Rule of Law, a foundational value, required that all legislation be clear, accessible and understandable. Over-broad legislation would be unconstitutional. Context always was relevant. He tabled a number of quotations on requirements of rationality, and limitation of fundamental rights (see attached powerpoint presentation).

Mr Gruzd stressed that if criteria were ruled bad in law, they could not be cured or made constitutional by creating an offence, such as clause 47, or including recognition of whistle-blowing or permission being sought from the Director of Public Prosecutions to institute a prosecution. He pointed out that a number of matters not included in this clause were not mentioned, but were also not excluded. If clauses 14(3)(d) to (f) were retained, they could be misused and could be invalidated unless specific reference was also made to “impair national security”.

SAJBD raised a further point  whether a person who released classified information could be prosecuted before that classification had been reviewed by the Classification Review Panel. If the classification was ruled valid, a prosecution could be correct. The clauses dealing with the offences should provide for this situation, and one suggestion was that if the classification was set aside, so should the prosecution be, and the court could perhaps refer the matter to the Panel for a decision on this, before trial. A Norwegian court had upheld the case of an editor who published material, despite an interdict against him, because the European Court of Human Rights could still override that interdict.

Mr Gruzd said that section 39 of the Constitution required the Constitutional Court to have regard to international law, and there had been numerous references to the European Court of Human Rights (ECHR), and several references to international protocols dealing with freedom of speech. The international legislation covered many stated, and provided a good standard in this area. The ECHR had
demonstrated that it was prepared to protect national security when there was genuine risk. The public interest defence was raised in several ECHR cases, such as the Spycatcher matter in the UK and the Bluf case in the Netherlands, which had to do with information being published in relation to the Dutch intelligence services. This case decided that once a matter was in the public space, and was in the public interest, its publication could no longer be prohibited, and no-one could be prosecuted.

Other cases set out the principles that states were prohibited from unconditional classification, and status reviews were necessary. Laws that prohibited, in absolute or unconditional terms, the dissemination of all information would be ruled not necessary in a democratic society. Courts had not always found in favour of those publishing information. Where there were real and serious national security risks, the ECHR would uphold this information being kept secret, provided that state security was defined narrowly, and the material would prejudice or endanger national security, if published.

The SAJBC felt that there had been some attempts to deal with the public interest exceptions in clause 43, but other inherent defences should be considered for people who would not be covered by the PDA. A court would be likely to permit an accused to challenge the validity of classification if the classification contravened clause 47, and was done for ulterior purposes, or fraudulently. The same principles should apply if a person was prosecuted in a situation where there had been fraud or bad faith in classifying a document. SAJBC felt that the public interest defence had been, to some extent, accommodated in clause 19, and through clause 32. It had limited application in privacy and defamation matters, and was included also in the Press Code, Press Council and Independent Communications Authority of South Africa (ICASA) legislation. The accused would still have a duty to lead evidence to show that there was no other way other than the actions s/he had taken, and this was akin to the defence of necessity. The accused would have to prove that the value of publication was greater than the needs of national security. SAJBD believed that a limited public interest defence would be of value. The common law defence of necessity would always be available. The SAJBD proposed that only a very limited public interest defence be included (see attached written presentation for formulation), and this was comparable, if not identical, to the defence of necessity in the criminal law.

For this reason, the SAJBD urged that the Committee should include this formulation, and put the debate to rest. The defence would be limited and narrow. The inclusion of this defence would give the public confidence in the process and would give peace of mind to journalists and editors, who would otherwise no doubt have to approach lawyers to get advice before publishing. The mere fact of having to weigh and balance values was a safeguard. An independent Review Board would play a critical role. Mr Gruzd urged that there should not be confusion of national interests with party or factional interests, nor should there be attempts to equate state security with regime security, as had happened in the past.

In conclusion, Mr Gruzd noted that SAJBD supported the key concerns of the Right2Know campaign, and he paraphrased the words of Moses by urging that the authorities should “Let my people know”. He summarised that the key requests were that the application of the Bill be limited to core state bodies, and should be limited to strictly defined national security matters. Officials should provide reasons for classification of matters. References to economic, scientific and technological innovations should be excluded. Intelligence agencies should not be exempted from public scrutiny. Penalties for unauthorised disclosure should apply only to those charged with keeping the information secret, whistle-blowers should not be criminalised, and a truly independent Review Panel should be in place.

Ms Ntwanambi asked if the SAJBD had made submissions to the NA, whether its concerns were answered at all in the latest Bill, and if the SAJBD would regard the Bill as desirable and constitutional, if the proposed amendments were to be included.

The Chairperson pointed out that this was an NCOP process, and the NA and NCOP processes should be seen separately.

Mr Gruzd confirmed that whilst the SAJBD had made submissions to the NA, this was a new submission, since a number of its earlier objections and concerns had been addressed in the NA process. He noted that there were four reasons why the Bill, in its current form, could be successfully challenged. However, it was recognised that the Bill was vital to protect national security and replace the archaic 1982 Act, so those concerns should be addressed.

Mr Nzimande noted that every submission had emphasised the necessity for a public interest defence. He was particularly worried about the release of top secret information and wondered what comparative ranking might be attached to public interest on the one hand, and the necessity not to reveal top secret information on the other.

Mr Gruzd answered that SAJBD had not suggested any ranking or weighting. Each case would have to be judged on its own merits, grounded in sound law. He said he would provide the Committee with a case from the ECHR which unpacked these principles, because it dealt with many of the matters.

Mr Nzimande thought that there could be other processes, such as policies, procedures and regulations, that might be able to give more clarity to the matter.

Mr Gruzd said that he could not comment specifically on these processes, but said that the current Bill made it difficult for the media, in particular, to decide whether to publish. There was lack of certainty, and a very bureaucratic process was set out. The point was made that the courts could scrutinise matters, but he pointed out that news, especially in the media world, was a perishable commodity, and any delay in publication may result in loss of values and interests. It was certain that policies, procedures and regulations should be tight.

Mr Nzimande noted criticisms about this Bill trumping PAIA, but pointed out that restrictions set out in section 32 of the Constitution were recognised. He asked if Mr Gruzd felt that the right to information was an open-ended right. He wondered if section 32 and this Bill were inconsistent. He indicated that clause 11 provided for a Register and a person would be able to know about information classified from this register, and from the reports to Parliament.

Mr Gruzd confirmed that earlier drafts of the Bill had recognised the primacy of PAIA, but the current clause 1(4) ousted that. He agreed that there were restrictions on rights, but that illustrated that the legislation ha to be solid and precise. In its current form, there was the danger that the Bill would be ruled unconstitutional.

Mr Chaane referred to the proposal that the minimum sentences be removed, with the discretion being left entirely to the courts. All other submissions, whilst agreeing that sentences were too harsh, had merely recommended a reduction.

Mr Gruzd answered that the SAJBD had looked at the trends in modern lawmaking. It was important to leave matters to the Court's discretion, taking all the circumstances into account, and looking at each case on its merits. That would deal with the concerns around the unduly punitive current sanctions.

Mr Chaane noted that other people had been prosecuted for acts of negligence and he did not agree that there was no place for criminal liability arising from negligence.

Mr S Mazosiwe assumed the Chair at this point.

Helen Suzman Foundation (HSF) submission
Mr Francis Antonie, Director, Helen Suzman Foundation, started his submission by quoting Mr Abdul Khan of UNESCO, who had said that the free flow of information lay at the heart of democracy and human rights. Central to this was the principle that public bodies held information not for themselves but on behalf of the public.

The South African Constitution guaranteed the right of access to information held by the state. PAIA was one of the most progressive laws in the world. It had strong procedural guarantees, and narrowly crafted exceptions One possible shortcoming was that it did not provide for an administrative level of appeal.

The current Bill highlighted the tug-of-war between the state and its citizens, including the media, around access to information. This was not unique to South Africa. The question was how lawmakers could balance the right of citizens to access against the obligations of the state to protect vital information. He urged that any restrictions must be precisely defined. Better legislation was needed to maximise dissemination of information held by public bodies, to enhance accountability and good governance.

Mr Antonie suggested that this Committee had to consider five issues, namely:
- how should the regime of exceptions be ranked, to strike an appropriate balance between the right to know and the need to protect.
- how extensive should the obligation to publish and disseminate be, and how could it grow in line with technological developments.
- what procedures for requesting information would balance the need and time constraints
- what right of appeal would individuals have, if their request to access information was refused
- what measures were required to change the culture of secrecy and to inform the public about its rights.

Mr Antonie noted that this Bill relied on the idea that national security had to be protected, and that it could be a defence to a request to a request for access to information. The Constitutional imperatives were to favour freedom of expression. Recent American and UK legislation reorganised relationships between the state and its citizens, either infringing on privacy, creating new offences, and expanding police  investigations and powers. Legislation that relied on a primary driver of national security, or sought to limit the free flow of information, placed huge power in the hands of those who implemented it. National security was a contested term and this included a number of variables, with significant consequences. A leading commentator had argued that as long as national security remained weakly conceptualised and politically defined, this could allow for maximisation of power for political and military ends, and veiled secrecy. Therefore, any “national security” concerns must be narrowly and clearly defined, and national security should remain the exception to rights of citizens, not the rule. Although most states had legislation to protect national security, the imperatives must be kept to a minimum, and governance structure must be free of political interference, and contain robust checks and balances. Intelligence services should not act both as player and referee.

Propositions in favour of secrecy tended to argue that it was necessary to safeguard national security. However, a better argument, in the view of the HSF, was that public scrutiny of security service decisions was likely to lead to a more secure society. Secrecy could lead to corruption and inefficiency in the security services, which would then undermine national security. The Constitution favoured an open and transparent state. The state should have to prove that limitation of the Constitutional rights to access was both reasonable and justifiable, and the least-restrictive means to achieve this must be found. Mr Antonie emphasised that citizens should not have to defend their entrenched right, but the state should provide justification for limiting that right. The Constitution set the parameters for the exercise of public and private power. Government conduct must have a legal foundation in the constitution or legislation. The starting point should be that every exercise of state power should be justified.

Ms Sara Gom, Helen Suzman Foundation, illustrated the tension between the public interest and national security by noting that although there was clear public interest in releasing the fact that the German Enigma code had been broken, during World War II, there was a greater national security need to keep that information confidential.

Ms Gom said that one of the problems that HSF had with the current Bill was that it conflated the processes of management of information, and classification. PAIA recognised right of access, but recognised that some limitations may be reasonable and justified, as well as recognising that some information – largely that relating to defence and intelligence operations – should not be disclosed. Section 210 of the Constitution did not deal with details of secret information in the defence forces. She felt that the objects clause and application clauses were at odds, because the objects described the need to keep state information secret, whereas the application clauses referred to valuable information. These two different concepts should perhaps not be in the same piece of legislation. The various definitions for “state information”, “sensitive information”, “valuable information” and “classified information” did not correlate, and it was difficult to cross-reference.

Ms Gom said that the range of organs of state who might opt in was huge, and this was at odds with the concept that the Bill should be narrow in scope. In the USA, there was limited delegation, the National Archives oversaw classification, there was provision for automatic declassification and explicit reasons for classification had to be provided. She made the point that if a decision could be justified, it would be more likely to find favour. The presumption in the USA was in favour of declassification, and the process was apparently much cheaper to manage. Penalties there were largely administrative, and related to agency employees who failed to safeguard information properly, which she thought was far more appropriate than imposing criminal penalties on citizens. There was huge emphasis on training employees involved in classification and declassification.

Mr Lewis Mash, Researcher, HSF, wanted to reflect on the philosophical and constitutional underpinning of this Bill. The apartheid regime had regarded secrecy, national security and state information as paramount, with information management being devolved to state security agencies, rather than National Archives. This led to information in the possession of the state being regarded as the state’s property, and the public interest was seen as a threat and was marginalised.

HSF said it had been argued that a public interest defence would allow legitimate whistle-blowers and citizens to escape harsh provisions. However, he argued that this argument rested on a flawed assumption that the paramount function of the state was to protect national security. HSF felt that instead, the state must protect the public good or public interest, of which state security was only one component. The suggestion that the public interest defence was not applicable elsewhere in the world was not true.

Mr Mash made reference to the African Union Declaration of the Principles of Freedom of Expression (the Declaration). This asserted that public bodies held information not for themselves, but as custodians for the public good. That undermined the notion that there was such as thing as “state information”. All official documents were, in principle, public documents, and could be withheld only to protect other interests. PAIA was enacted to uphold the right of the public to access to (public) documents. If it was accepted that there was no “state-owned information”, then the premise for protecting it was flawed. If any legislation was required to supplement PAIA, it should be legislation dealing with information management. The state should bear the onus of proof that it was acting in the public interest by withholding information, rather than citizens being required to prove that their disclosure was in the public interest.

Mr Tim Kennyk, Researcher, HSF, said that the right to freedom of expression was entrenched as a fundamental, though not absolute, right in international law. It may be limited in certain and precisely defined circumstances. Any limitation must be reasonable and justified by government. He said that it was not correct for this Bill to have been tabled, and then attempts made to force it through. Questions that should have been openly debated instead became the reason for polarisation. Citizens had every right to raise concerns with the policy choices taken by government. The whole process had resulted in many  commentators taking a cynical view of the Bill and its intentions, and whether this was warranted was irrelevant; the process was problematic.

HSF suggested that restrictions on the entrenched right to freedom of expression would be limited only if officially and formally recognised, and if the legislation met the required standards of clarity and precision. He submitted that the Bill did not meet these requirements. A legitimate aim could not be expressed as open-ended, as the Bill had tried to do. The Bill sought to justify national security imperatives, but failed to consider the nuances and was too broad. A restriction, even if it was in accordance with a clear law, must still be proven necessary. This Bill, in confusing issues of management information, did not prove necessity. Vague, broad and conflicting language was used, and there was lack of proportionality, with no proof that the harm to national security outweighed the benefits of keeping information away from the public. The HSF submitted that it would lead to the silencing of opinion, and do incalculable damage.

Mr Worth noted that much valuable information was kept in provincial archives. It had been suggested that this Bill infringed upon the exclusive provincial legislative competencies in relation to archives.

Ms Gom responded that this was a very real concern, and similar concerns applied also to health. If any legislation attempted to draw existing powers from the provinces, without justification, it would be potentially unconstitutional. 

Mr Bloem asked for clarity on the comment that restrictions must be reasonable and justifiable.

Ms Gom said that there was a distinction between these words. What an outside observer may regard as reasonable, such as protection of national security, was not necessarily justifiable, as the particular facts and context must be taken into account in each instance.

Mr Antonie added that this went to the heart of questions around an appropriate response to the Bill of Rights should be, and when information would be regarded as “in the public good”. He urged the Committee to reconsider the whole Bill.

Mr Bloem questioned paragraph 5.1.10 of the written submission, which looked to the distinction between types of information.

Ms Gom said that her concern was that one definition did not link properly to another.  Although “state information” was broadly defined, “classified information” was not linked back to this definition. She appealed for more logic in the Bill, but said that this was more a matter of structure than of content.

Mr Chaane asked for elaboration on the comment that the very notion of “state information” was flawed.

Mr Mash reiterated that HSF supported the view that public bodies held information not for themselves, but as custodians for the public. All official documents must therefore be regarded as public, and could be withheld only for specific reasons. “State information” was defined as information generated or received, or in possession of the state. Anything that the state knew could be regarded as state information, worthy of special handling by the state, and this was a bizarre notion that was clearly at odds with the principles set out by UNESCO and the Declaration. The state had a duty to manage information, but had no special rights over information.

Ms Ntwanambi pointed out that this Bill did not relate to general information.

Mr Antonie said that the way that the state chose to manage information became the object of enquiry. HSF was concerned as to who should define national security. A constitutional democracy allowed for structures such as separation of powers. How the state classified information, and how the state managed information, were two different concepts and required different approaches. Some information under the control of the state was deemed beyond public accountability and access. This was alarming, even more so in light of the draconian penalties. The purpose of the Bill had to be considered, given that PAIA was already in place.  HSF urged that if the state wished to take information out of the public domain, the state should explain why.

Mr Bloem referred to point 5.2.7 of the written submission, and asked why this point was raised.

Ms Gom explained that this made the point that if something was deemed worthy of being kept confidential, then a distinction was needed on who could access that information. The three separate definitions for confidential, secret and top secret were unduly complex.

Mr Lees was interested to hear the concept that the state should be obliged to prove that classification was in the public interest. He wondered how that could be put into practice, and whether HSF was suggesting that the entire Bill would have to be redrawn.

Mr Mash said that a piece of  USA legislation (which he would send to the Committee) set out very specific circumstances in which information could be classified, including the fact that it must be reviewed every year, and automatically declassified after a point. That information would be accessed via the national archives. He submitted that perhaps parts of the current Bill could be salvaged. However, the more important point was that there was a need for legislation around information management, setting out the proper processes by which information was classified and declassified. Procedures and reasons would be covered.

Nelson Mandela Foundation (NMF) submission
Mr Sello Hatang, Head: Public Programming, Nelson Mandela Foundation, said that many issues had been raised earlier in the process by the NMF, and there had been improvements. NMF was now focusing on four issues. Its submissions had incorporated input from focus groups.

Dr Verne Harris, Head: Memory Programme, Nelson Mandela Foundation, said that the NMF did believe that there were legitimate secrets in the state apparatus, and there was a need for an institution to protect information. NMF submitted that the problems in the Bill could be fixed. He suggested that the Bill of 2008 was generally sound and defensible, but changes made by way of the 2010 Bill and in the NA process had been unfortunate. Unless the existing problems were addressed, the Bill could become an instrument of oppression.

Mr Hatang commented that there was a need to harmonise the Bill and PAIA. The changes introduced in the NA had removed the original wording that had specified that the request for classified information must be dealt with under PAIA. This wording was crucial to the constitutionality of the Bill. The NMF suggested that it must be restored into the current Bill, so that it could pass Constitutional muster. In particular, this Bill should not attempt to oust PAIA and clause 1(4) must be removed.

Dr Harris said that the penalty provisions were likely to have a chilling effect on whistle-blowing and investigative journalism. The inclusion in the Bill of a public interest defence would allow journalists to justify the publication of information. Supporters of the present formulation of the Bill had claimed that a public interest defence would undermine the fundamental purpose of the Bill. Whilst the NMF had some sympathy for that view, it believed that a compromise could be found, by drafting the clauses dealing with offences to focus on the harm caused, rather than the mere fact that the information was classified. This was the way in which the 2008 version of the Bill had been worded. The state would have to demonstrate that harm was caused by classified information being put into public domain.

Mr Hatang said that the public interest override must be reformulated. Its effectiveness was limited by the unreasonably high threshold. At present, classified information could be published only if it showed a substantial contravention of the law, or an imminent safety or environmental risk. The current wording was taken directly from the PAIA provisions but the South African Human Rights Commission had for a long time argued that this provision of PAIA should be reformulated, and had made submissions to the Portfolio Committee on Justice and Constitutional Development in this regard. It was therefore unfortunate that this provision was incorporated wholesale.

Dr Harris then discussed automatic declassification. The 2008 version of the Bill had made provision for automatic declassification of pre 1994 documents, and then for automatic declassification of post-1994 documents 20 years after their creation, unless interventions to prolong the classification were made. NMF had regarded this as a progressive move, and the declassification that had been done during the Bill Clinton administration in the USA had raised hopes that the same could happen to unlock apartheid-era secrets in South Africa. The pre-1994 regime had been characterised by over-classification. It would be impossible for the NMF to work properly and fulfil its mandate unless there was declassification. He submitted that documents that really had no need to be kept secret – including the order signed by then-President De Klerk to release Nelson Mandela – were still classified. The automatic declassification provisions of the 2008 Bill were removed from the 2010 draft. After pressure, some refinements to the clauses had been made, but the Bill’s wording on this was still vague and imprecise on a number of important points.

NMF urged the NCOP to address its concerns.

Mr Chaane expressed his appreciation for the very clear presentation.

Mr Bloem asked if the NMF was suggesting that the provisions of the 2008 Bill should be considered, in conjunction with the current Bill.

Mr Lees asked if there were more clauses on which the NMF wished to comment.

Ms Ntwanambi noted that the comments were based on a Bill introduced in the previous Parliament. 

Mr Hatang clarified that the NMF was not suggesting that the 2008 wording simply be incorporated wholesale, and the NMF’s written submission did make reference to specific clauses and wording. The content of that Bill was in many respects better than the current Bill.

Mr Harris added that PAIA already defined what would be a legitimate secret of the state, that the state was able to, or required to protect. The Bill defined the powers and responsibilities of government in protecting secrets that were defined in PAIA. The whole premise was dependent on recognition that PAIA defined legitimate secrets, and this was why clause 1(4), that sought to oust PAIA, was so disturbing. The purpose of this Bill was not to cover matters already covered by PAIA. NMF was of the view that clause 1(4) would be declared unconstitutional, if challenged.

Ms Ntwanambi asked whether PAIA and this Bill could not be seen as complementary, and asked where the specific difficulty lay. She referred also to section 36 of the Constitution

Mr Hatang answered that PAIA had a specific objective, and if the Bill had retained the wording that confirmed the primacy of PAIA, then section 32 of the Constitution, PAIA and this Bill would have been properly aligned with each other. However, clause 1(4) had been changed shortly before the Bill was passed. He noted that the NMF spoke of the “family of laws” governing access to information, and that would include PAIA, Promotion of Administrative Justice Act, the Equality Act, and archives legislation.

Mr Harris added that it would include the Protection of Personal Information Bill. The team working on PAIA had understood very well how all these pieces of legislation interlocked and interacted. The changes to the current Bill, in clause 1(4) had been made without giving due consideration to the knock-on effect on all these other pieces of legislation, and he thought that if the issues were not addressed, they would not pass constitutional muster.

The meeting was adjourned.

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