Protection of State Information Bill: party proposals
Ad Hoc Committee on Protection of State Information Bill (NCOP)
10 May 2012
Chairperson: Mr R Tau (ANC, Northern Cape)
Members continued to note their parties’ proposals on the Bill, from clause 13. Where the parties disagreed, it was agreed that further legal opinion and comment from the Department be sought. The DA proposed that time periods for confirmation of classification by operatives be noted, but the ANC did not agree, suggesting that it could, if necessary, be dealt with in regulations. In clause 14(2) the ANC proposed deletion of “secrecy” and a reference instead to “Protection of state information”, whilst parties noted that a legal opinion would be sought on the DA’s proposal to replace “considerations may include” with “considerations must include”. The DA thought the wording of clauses 14(3)(d) to (f) was overbroad, requested their deletion, alternatively qualification with the words “impair the national security”, although the ANC did not agree. The DA’s proposal to add a new subclause 14(3)(g) was not supported. The DA proposed a new clause 14(6) to emphasise the severability principles in PAIA, but the ANC disagreed. The DA thought that this was inconsistent with earlier comments by the ANC that any conflicts with PAIA should be avoided, and a legal opinion would be sought. The DA proposed a complete rewriting of clause 15, and wished to avoid automatic criminalisation of those in possession of classified documents, so listed exceptions to the general rule requiring return of documents improperly obtained. The ID supported the proposal, but COPE and the ANC did not. The DA, supported by the ID and COPE, proposed insertion of a new subclause 19(3), calling for immediate declassification when the head of the organ of state realised that classified information did not meet criteria for classification, but the ANC thought this was already covered in clause 14. The ANC proposed, for clause 19(3) that the words “failure to comply with the law” must be amplified by the insertion of “or section 14 or section 47 of this Act”, but COPE suggested it was tautologous, whilst the DA’s own formulation broadened the scope and was not supported by the ANC. DA also proposed amendments of clause 19(4) time periods. Both the ANC and DA proposed qualifying “within a reasonable time”, but in slightly different formulations, whilst the DA also wanted adequate reasons for refusal to be provided, but the ANC would not agree to that formulation.
In Chapter 7, the DA proposed a new clause 20(2), calling for separate funding, to enhance independence, and said that the Minister should not be required to concur on the rules, as set out in clause 21, nor on remuneration issues, which should be left to Parliament. The ANC wanted clause 21(2)(a) to be deleted as the time frames should not, in the opinion of the ANC, be covered in the rules, and proposed, with the support of COPE, that all references to “the National Assembly” in this Chapter be replace with “Parliament”. The DA did not agree with the proposals on clause 24, which it commented was unclear and failed to require consultation between the Minister and Parliament. The DA wanted a two-thirds majority for removal of Panel members, but this was not supported by other parties. Other technical issues were raised in relation to time periods. The DA and COPE maintained that Chapter 7 did not ensure enough independence of the Panel, but the ANC was adamant that this Panel was akin to Chapter 9 institutions, who received budget via the Ministry and stressed that only the Court could overturn the decisions of the Panel. The DA requested, for clause 31, that an immediate appeal should lie to the Panel, and proposed extending the time period for lodging an appeal to six months. This was not supported by the other parties, and COPE suggested that perhaps a retired judge should be included in the process.
Under clause 35 the DA did not believe that the Agency should be responsible for monitoring other organs of states’ handling of valuable information, in line with its contention that valuable information should not be included in the Bill at all. The Chairperson said that debate was needed on the point at which valuable information might also become strategic information or link to state security.
The parties failed to reach agreement on the precise rewording of Chapter 11’s offences and penalties. All were agreed that, in principle, minimum sentences should be removed, and all parties agreed on the need to delete “ought reasonably to have known”. COPE wished to replace “intentionally” with “with the intention to cause harm to national security” whilst the ANC would leave this wording as it was. The DA and COPE wanted deletion of all references to “indirectly” (benefit). However, each party was adamant that it would not accept the wording of the other now and instead asked that the Secretariat prepare a document comparing the versions. The various proposals were tabled and noted for clauses 36 to 40.
In respect of clause 43, COPE wanted the word “intentionally” to be replaced. The ANC proposed that the sentences be reconsidered, that “classified information” be replaced with “classified state information as provided for in section 36 of this Act” and that a new subclause would be added to emphasise that an exception would be where the publication revealed criminal activity, including criminal activity for ulterior purposes listed in sections 14 and 47 of this Act. However the ANC felt that this was not the same as the DA’s and COPE’s proposals on clauses 49 and the public interest / public domain defence. The DA proposed a reduction of the sentence in clause 44, and wanted to amplify this clause by inserting provisions that matched those it had suggested for clause 15. This was not accepted by the ANC and COPE. The DA, but not ANC and COPE, suggested that if clause 46 were to be retained, the penalty must be brought in line with that under the National Archives and Records Services Act. In respect of clause 48 the DA proposed that the penalty for state officials’ non-compliance should be increased. The ANC proposed that the words “conceal breaches of the law” in clause 47(1)(c) be amplified with the additional phrase “corruption or any unlawful act or omission, incompetence, inefficiency or administrative error”.
COPE proposed a new subclause (2) to clause 49, which essentially set out a public interest defence, detailed under a number of circumstances. The DA stressed that this clause dealt with the security establishment, and not the general public, and set out a limited public interest defence as applicable to state employees. The DA then proposed a more detailed new clause 50 that was entitled “Public interest / domain defence” that would be applicable to the general public, which picked up a number of the points raised by COPE in respect of clause 49. Neither formulation found any favour with the ANC who maintained that it was not the job of this Committee to rewrite the Bill, not would it support the public interest defence. COPE’s submissions on clause 52(6) were intended to prescribe how the court must operate, and although this was supported by the DA, it was not supported by the ANC. The DA finally proposed that information classified under the former legislation and Minimum Information Security Standards should not fall under the ambit of clause 55, but the ANC disagreed.
The Committee would seek an extension of time to end June and would continue to deliberate, taking input from the Department of State Security and legal advisors.
Ms N Ntwanambi (ANC) stated that that she was concerned about Parliamentary staff appearing to be assisting particular parties.
Mr A Lees (DA) said that this was a very general comment and one that put all staff under suspicion. He commented that on the previous evening, he was interested to see staff present at an ANC caucus.
Ms Ntwanambi responded that the people who were present were ANC assistants, employed by the ANC, and not Parliament.
The Chairperson noted that staff members employed by Parliament should adhere to the principle that they worked for Parliament, and any assistance that they rendered should be done in the context of committee work. Party political staff members were in a different position. He asked that all Members be careful not to compromise staff members by attempting to drag them in to political matters.
Protection of State Information Bill: Continuation of deliberations
Mr Lees continued with the concerns he had outlined briefly on the previous evening, around the lack of a time period within which classification (by operatives in the field) must be confirmed by the head of the organ of state. He proposed that he words “within seven days of the date of classification” be inserted, so that it should not be open-ended, and that the sentence must also conclude with the words “which confirmation must be done within 14 days from the submission from the member of the Security Services”.
Mr T Chaane (ANC,
Mr A Matila (ANC,
Mr J Gunda (ID,
Mr Lees said that after the member of the security services had done the classification, his work would finish, so he did not think that there was any undue difficulty in that regard.
Mr Chaane said that there was no need for suspicions around the security services. He suggested that this could be dealt with in regulations, as it was largely an administrative issue.
Mr Lees took this point, but said that the Bill did, elsewhere, specify time frames, so this would not be inconsistent. Parliament did not necessarily have input into regulations. He felt it was important, but it was a moot point whether the DA would regard this as so serious an issue on its own to warrant the DA voting against the Bill.
Clause 14 (3)
Ms Boroto noted the ANC proposal to amend clause 14(2)(a) by removing the word “Secrecy” and replacing it with “Protection of state information”
Mr Lees proposed that, in line 39, the words “ (considerations) …must include” should be used in place of “may include”.
The Chairperson noted that the use of the word “must” would compel the classifying authority to do all the things that were listed. A source could request not to be identified. However, if “must” were to be used, this would surely mean that the identity of that source would have to be identified.
Mr Lees clarified that the “must” referred to the fact that consideration must be given to specific points, whereas leaving this as “may” would mean that the points may or may not be considered. He noted that the principle of keeping the identity of individuals secret was one of the reasons to classify information.
The Chairperson suggested that a legal opinion be sought on this issue.
Mr Matila also thought that it would be incorrect to change the wording.
Mr D Bloem (COPE,
Ms Boroto agreed with the Chairperson that legal opinion be sought on the wording.
Clause 14(3)(d) to (f)
Mr Lees said that the Constitutional court had given rulings in more than one case about wording of legislation being over-broad, and noted that consideration had to be given to whether the wording used went wider than was constitutionally acceptable. The DA believed that clauses 14(3)(d) to (f) were too broad, and for this reason should be deleted. However, should the Committee not agree to their complete deletion, then he suggested that the words “impair the national security” be added to each of those subclauses.
Mr S Mazosiwe (ANC,
Mr Lees said that although the words “impair the national security” were not included in his written proposals, he was now proposing this, as an additional option.
Mr Ntwanambi proposed that, instead of setting the matter aside, or “parking the issue”, the disagreement of the ANC should be recorded. She did not agree with the proposal as she thought that removal of these subclauses would compromise the state, creating loopholes.
Mr Bloem said that the Chairperson had suggested getting a legal opinion, and indicated that he agreed with that.
The Chairperson said that perhaps the Committee should avoid using the expression “park the issues”. A legal opinion should be provided, for there was not agreement on this point.
Clause 14(3) – new subclause (g)
Mr Lees proposed the addition of a new subclause 14(3)(g), to read: “undermine the capacity of the Republic to respond to the use of, or the threat of the use of force, and to carry out the Republic's responsibilities to any foreign country and/or international organisation in relation to matters contained in the definition of “national security” as contained in this Act”.
Mr L Nzimande (ANC, KwaZulu Natal) asked why this was necessary. He thought that this was already included.
Mr Lees responded that it was explanatory wording. When making the determination whether to classify, this should be an additional consideration. It was not merely a question of restating the definition of national security.
Ms Ntwanambi did not agree and said that this was linked to the removal of (d), (e) and (f), which were necessary clauses, in her view.
Mr Chaane said that, in light of the arguments on “must” or “may”, this did not seem to make sense. He did not think that this addition strengthened the position.
Mr Mazosiwe thought that 14(3)(c) already covered these concerns and also did not think it was necessary to add any more.
Mr Lees believed that this formulation was best suited to emphasising the sentiments behind the Bill.
Mr Matila suggested that a legal opinion be sought on this point.
Mr Nzimande reiterated that he had asked what value this would add. Mr Lees himself had said that this definition was covered, and this was merely an elaboration, and for this reason was unnecessary.
The Chairperson noted Members' disagreement on this point.
Addition of clause 14(6)
Mr Lees said that the question of classification of records had to be considered carefully. Records could be short or long, and it may be that one page of a 1 000-page document did indeed require classification, although the other 999 pages did not. The Promotion of Access to Information Act (PAIA), section 28, set out the principle that severance should apply so that, in the example quoted, 999 pages could be disclosed, and only one page could be withheld from the public. The same principle should be contained in this Bill. He therefore proposed a new subclause 14(6), stating “ If a record contains information that must be classified in terms of any provision of this Act, then every part of such record that does not contain such information must, despite any provision of this Act, remain unclassified”.
Mr Chaane said that if this was already covered in PAIA, this proposed new subclause merely amounted to duplication. Clause 14 was talking of conditions of classification and declassification, but not about severability and deeming provisions.
Mr Lees thought that the parties were in agreement on the principle of severability. Perhaps making reference to the severance clause in PAIA might be sufficient. He would not be averse to this being reworded to satisfy all parties.
Ms Ntwanambi said that the two pieces of legislation would in any event have to be read together. This clause was very specific. The ANC did not agree that it was possible to classify only one page whilst leaving the rest of the document unclassified.
Mr D Worth (DA,
Mr Chaane said that clearly there was no agreement on this clause and further advice should be sought. The responsibility of this Committee was to try to avoid conflict between legislation. Mr Lees was trying to include something that was already dealt with under PAIA, and to insert this in here would be bringing in a conflict (sic).
The Chairperson said that he had the impression that Members did not agree. He reminded them that at the end of the process, the Department and legal advisors would be asked to respond to issues of disagreement. It was not necessary to try to finalise the clause now, as the parties would continue to engage on it.
Mr Bloem asked why other parties did not simply identify what the main contentions were, as he felt that this could short-circuit the procedure. He had noted, on the previous day, that COPE would be concentrating on the submissions of the Legal Resources Centre and South African National Editors Forum. One of the main points of concern related to the public interest defence...
The Chairperson interjected and said that Members were now following a process of going clause by clause through the Bill and raising their proposals for amendment. He would be unwilling to change that process, unless all Members agreed to do so.
Ms Boroto thought that the Committee was doing quite well, and that Members should confine their comments to the clauses on which they wished to comment or propose amendments.
Mr Worth supported that.
Mr Bloem said that he was not opposed to that; he had been trying to help the process.
Clause 15: Report and return of classified records
Ms Boroto proposed, on behalf of the ANC, that on line 5, after the reference to South African Police Service (SAPS), the words “or the relevant classifying organ of state” should be added.
Mr Lees said that the DA proposed a complete rewriting of clause 15 (see attached document, page 3).
The DA was opposed to automatic criminalisation of people in possession of classified documents, and believed that there should be a process by which people could seek to retain documents, under certain circumstances. He read out the proposed changes. The overriding requirement was that a person who was in possession of a classified recording, knowing that it had been unlawfully communicated, delivered or made available, contrary to correct purposes, should report the possession, and return the record to a member of SAPS or the State Security Agency (the Agency), except in circumstances that were then listed under new subclauses 15(1) to (5). These exceptions listed a person, within 14 days of receipt, applying for declassification, or applying to the Classification Review Panel for a status review of the classification, or applying to the Public Protector for a review of the classification, or applying to a court of law for an urgent review of the classification of the classified record or part of it, or where the information had been improperly classified.
The Chairperson noted that the heading of the clause was “Report and Return of classified records”. He thought this clause simply set out the basis for what happened if a person was in possession of a document. In addition, the DA proposal set out time frames, and he asked what would happen if the 14 days had passed without the person in possession of the document having followed these processes.
Mr Lees explained that whilst clause 15 did set out a process, the non-compliance with clause 15 resulted in criminalisation, and penalties would apply (although he would later be proposing amendments to penalties). There were already consequences for failing to act as set out in clause 15, and if a person failed to apply, within 14 days, but still retained those documents, then those consequences would follow.
Mr Bloem disagreed with both proposals. COPE would prefer to keep the original wording.
Mr Gunda said that the ID supported the proposals of the DA.
Mr Matila asked who would determine the 14-day period. A person may sit with a document for some time, without reading it, or may lie about the time when it was obtained, and there was nothing in the amendment to cover that situation. He did not agree with the DA's proposals.
Ms Ntwanambi proposed that the disagreement of the ANC be noted, and that the matter proceed.
Mr Chaane agreed that the Committee should proceed. He pointed out that the amendment seemed to be inconsistent, because it recognised, at the outset, that the person in possession of the record know that the information was incorrectly obtained, yet gave that person the option to keep the document in the meantime.
Mr Worth pointed out that the current wording also used the words “knowing that such record has been unlawfully communicated, delivered or made available” so that there was actually very little difference in principle, other than that this proposal was raising more options for the person in possession of the document.
Clause 19: Request for access to classified information and status review
Insertion of new subclause 19(3)
Mr Lees proposed that a new clause 19(3) be inserted (see page 4 of attached document). In circumstances where the head of the organ of state was satisfied, during the review, that the classified information did not meet the criteria for classification, the information must be immediately declassified and request for access granted. However, there was protection if that information would not have been made available in terms of PAIA. The remaining subclauses of clause 19 would then be renumbered.
Mr Gunda agreed with this proposal.
Mr Mazosiwe said that the new formulation spoke to the same issues set out in clause 14, and because it was covered fully there, it was unnecessary to introduce this new clause, with a reference to PAIA.
Mr Bloem supported the DA’s proposal, as he thought it was reasonable and sound.
Mr Gunda clarified that Mr Lees was not proposing other deletions, but was proposing a new subclause. He asked specifically why there were objections to the new subclause.
Ms Boroto stressed that the ANC did not believe it was necessary, and suggested that the Committee move on.
Proposals on existing clause 19(3) (to be renumbered)
Ms M Dikgale (ANC,
Mr Lees pointed out that already clause 19(3)(i) referred to “failure to comply with the law” and that meant that the clauses of this Bill, once brought in force, would automatically be included in “the law”. He believed that this amendment was unnecessary.
Mr Bloem asked for the motivation behind this proposal.
Mr Nzimande said that clause 14 spoke to the conditions for classification. The amendment was intended to emphasise the importance of clauses 14 and 47.
Mr Bloem did not agree with the formulation.
Mr Lees then set out the DA’s new formulation for the existing clause19(3)(a) (see page 4 of attached document). In essence, it added in the word “also” after “the had of the organ of state concerned must” and replaced the words “a substantial contravention” with “any contravention” in (i), whilst it also changed the “and” at the end of (ii) to “or”.
Mr Chaane noted that this was broadening the scope of the existing clause.
ANC Members noted their disagreement with the proposal.
Original clause 19(4)
Mr Lees noted the DA’s proposal that, in the original clause 19(4)(a), the time periods be amended. The period of 14 days under (a) should be reduced to 7 days, whilst the period of 30 days in (b) should be reduced to 14 days.
Mr Lees also said that subclause 19(5) appeared to contain an incorrect reference to section 20.
Members clarified that the “20” was in fact the line number, and Mr Lees noted the error and withdrew his submission on clause 19(5).
Ms Dikgale said that, in clause 19(6), the ANC proposed that the words “within a reasonable time” should be replaced with the words “within 14 days”.
Mr Lees concurred with inserting a specific reference to 14 days, rather than “a reasonable time”. The DA had also proposed that this clause be amended, and include a specific reference to days, but had done so in a slightly different way. After the words “ a reasonable time” there was a proposal to insert “but must, in any event, within 14 days after the request is received, either grant or refuse the request. If the request is refused, the head of the organ of state must provide adequate reasons for such refusal”. He pointed out that the Court might decide that a “reasonable time” could be six days, but his formulation suggested a maximum time. He also stressed that adequate reasons for refusal should be provided. He would be happy to debate the formulation.
Mr Chaane did not agree to the new addition proposed by Mr Lees, and reiterated that the ANC preferred its formulation.
Chapter 7: Classification Review Panel
Mr Lees proposed the insertion of a new clause 20(2), in relation to the Classification Review Panel (the Panel). Funding was an essential element of independence, and so his new proposal set out that the operations of the Panel should be financed or funded by way of a direct appropriation by Parliament, as a separate budget vote. The remainder of the subclauses would be renumbered.
Mr Mazosiwe thought it would be difficult for Parliament to prescribe to the Executive how the Panel must be funded, particularly making reference to a separate vote. The independence of the Panel would result from the electoral process, which required that people of good standing be appointed. In addition, he noted that there was already sufficient removal between Panel and the Minister as the decisions could be reviewed only by a court. The allocation of budget was a minor matter. He said that the Bill had been well-structured, and noted that the media had not commented upon these powerful and well-drafted provisions.
Mr Mazosiwe suggested that clause 21(2)(a) be deleted, as the time frames had been dealt with in the Bill, and it would not be appropriate to deal with them in rules.
Mr Mazosiwe then addressed a technical point, in relation to the references to the “National Assembly” that appeared throughout the Chapter. He proposed that wherever “National Assembly” appeared, it should be replaced with “Parliament”. This would involve amendments to clauses 22(2), 24(1)(c), 24(3)(a), 24(3)(b) and 29. He noted also that clause 24(3)(a) referred to the suspension of a member from the Panel at any time after the start of the proceedings of “a committee of the National Assembly” (NA). However, he pointed out that the Joint Standing Committee on Intelligence (JSCI) was not a committee of the NA, and there was a need to insert a specific reference to that Committee.
In addition, he noted that in clause 24(2)(a), after the words “majority of members of the Assembly” the words “and five provinces in the NCOP” should be inserted, to clarify the quorum required in that House.
Mr Worth did not think that it was necessary to include the reference to the five provinces in this Bill – he thought that it was sufficient merely to refer to the rules of the NCOP.
Mr Lees said the DA did not support the amendment to clause 24. He had already had some difficulty in understanding the sense of the clause as originally worded, and did not see how the revision now proposed would change matters.
The Chairperson thought that “at any time after the start of the proceedings” referred to a time after Parliament was in session.
Mr Lees still thought that subclause 24(3)(a) read badly. It seemed that the Minister would have the power to suspend a person even before the Parliamentary committee had deliberated on the removal, and no consultation seemed to be required. There was no reference to the Minister acting “after consultation” with the committee (presumably the JSCI) or any other interaction with that committee.
The Chairperson thought that the intention was probably to have consultation but perhaps the formulation was a problem.
Mr Nzimande thought that there were two scenarios, one relating to removal and the other to suspension.
The Chairperson noted agreement by everyone that “Parliament” should not be left out of the process.
Mr Bloem emphasised that the chapter should refer to “in consultation”.
Mr Lees then noted, in respect of Clause 21: Functions of the Classification Review Panel, that the DA believed that the concurrence of the Minister should not be required, as the Minister should have nothing to do with the rules.
Mr Mazosiwe did not agree on that that point, as he said that the Minister would have to be involved in these matters, which related to the operations of the Department.
Clause 23(h): Disqualification from membership
Mr Lees stated that the fulfilment of both subclauses should not be required; only one or the other. He proposed the replacement of “and” with “or”.
Clause 24(2): Removal from office
Mr Lees proposed that a two-thirds majority of the House, rather than a simple majority, should be required, to remove a member of the Panel.
Mr Mazosiwe said that a two-thirds majority was required only for amendment of the Constitution. This requirement could hinder the work of the Panel, as he could foresee that this provision could be used to delay processes to implement a resolution of the Panel. Service delivery should not be obstructed by political considerations.
Clause 25: Remuneration of members and staff
Mr Lees proposed that in line 11, the references to the Ministers be removed and that a reference to “Parliament” would be more appropriate. This would again deal with issues of independence.
Mr Mazosiwe reminded Members that, generally, Parliamentary Committees had an oversight role, particularly the JSCI, and that the Minister of Finance was better placed to deal with financial matters.
Mr Mazosiwe put the ANC proposal that in clause 27(1), a time period of 14 days should be inserted after “the classified information”, and the same time period should be inserted after the words “opportunity to respond” in clause 27(2).
Mr Mazosiwe noted that the ANC proposed that the words “by no later than 31 December of each year” should be inserted in clause 30(3).
Mr Bloem did not object to these amendments.
Debate on all proposals for amendment of Chapter 7
Mr Matila commented, in general, that he could not agree with the type of structure that the DA was attempting to propose for the Panel.
Mr Lees responded, in general, that the arguments on this Chapter did not deal with the importance of ensuring that there was no abuse and no interference with the independence of the Panel. This legislation was being created to keep information away from the public, for very good reasons and in the right circumstances, but Members could not ignore the possibility that some people could try to use the legislation for the wrong reasons. For this reason, the content must be made as strong as possible and all possible loopholes closed. This was a very sensitive matter, and the Committee must ensure that the possibility of abuse was limited. He was very sorry that Members could not reach agreement on those issues, but did not know what more he could add to try to convince them on his arguments.
Mr Bloem noted that COPE agreed with LRC's submissions on clause 24. The LRC had said that there could be a perception of political manipulation. COPE would prefer to see the provision around the adoption of a majority vote resolution by Parliament, calling for removal, being removed. He also agreed that the judicial review jurisdiction of the Court must be maintained.
The Chairperson said that Adv George Bizos had made that point in relation to the general review of the justice system. He reminded Members about the objective of the Bill.
Mr Nzimande thought that Mr Bloem was missing the point; that comment by Adv Bizos had, in his view, been made to support arguments, but not necessarily to propose specific amendments to the clause or chapter. Clause 24 set out on what grounds removal may take place. “Parliament” was a multi-party Parliament, and not all parties would be malicious, so he failed to understand how the perception could be created.
Mr Gunda said that Parliament had oversight over the Minister.
The Chairperson noted that this was in fact what Mr Mazosiwe had said; he had noted that a primary function of Parliament was oversight.
Mr Gunda referred to the submission of the Public Protector on these issues. Mr Mazosiwe had suggested that no separate budget vote was needed. If that was so, he asked to whom the Panel would report, and where its budget would come from. He was not intending to suggest that the Minister (or any Minister) was not trustworthy but pointed out that there was the possibility that Members of the Panel could feel intimidated by whoever controlled the budget. The Public Protector’s submissions also noted the lack of clarity on the budget and said that this could affect the Panel’s independence.
Mr Matila noted that other independent bodies, including the Chapter 9 institutions, and the Judicial Service Commission, reported to their Minister and received a budget via the Ministry. In addition, the Minister actually served on the JSC. Some Ombud bodies reported to the Minister.
Mr Mazosiwe stressed that the decisions of the Panel could be overturned only by a Court, and this, in his view, wondered how it would be possible to get greater independence than that. The Minister had no power to overturn those decisions by a court. Insofar as the provisions around removal of a Panel member were concerned, there were very specific grounds set out. The Parliamentary committee would deal with this. This Bill created a Panel that was similar to a Chapter 9 institution, to ensure that there was sufficient independence. Parliament had not, so far, removed people or interfered with the workings of any other Chapter 9 institution, and MPs had not acted irrationally and had remembered their role as elected representatives.
Mr Mazosiwe suggested that the parties note their disagreement and move on.
The Chairperson noted that, and said that Members would engage further with the Department and legal advisors on these matters.
Clause 31: Appeal Procedure
Mr Lees noted the DA’s request that an immediate appeal should lie to the Panel. This led to the proposal to rephrase clause 31(1) to state: “Any person who is refused access to information in terms of this Act may appeal to: (a) the relevant Minister of the organ of state; or (b) the Classification Review Panel”.
In respect of clause 31(2), he noted that the PAIA provided for the lodging of appeals within six months of receipt of the decision, and recommended that this provision be brought in line, by replacing the reference to “30 days” with “six months”.
Mr Nzimande thought that clause 31(1) was already broad enough, and served the purpose of access to appeal. He was not convinced of the reasoning behind the proposal on 31(2).
The Chairperson made the point that the Bill already created the space for a person to appeal to the Court directly, in urgent circumstances. He wondered if the lengthening of the period to six months was not negating this principle. In respect of the suggestion that the Panel provide another avenue for appeal, he said that the Committee had been trying to ensure that there were not linkages between the executive and Panel, and this amendment seemed to be in conflict with that principle.
Mr Bloem proposed that the Minister should not be involved, and instead appeals should lie to somebody such as a retired judge.
Ms Boroto thought that the current wording of clause 31(1) should be left as it was. The new formulation added nothing. She also questioned the rationale behind extending the period to appeal.
Mr Lees responded, in relation to the six month period, that Parliament had considered it appropriate to include a six month period in respect of PAIA applications, and reminded Members that this was the time period being given to individuals to lodge their appeals, not the time period given to officials to react. The implications of this Bill were even more serious than the documents covered by PAIA, and for this reason he was not sure why the NA had decided upon a shorter period.
Mr Lees stressed, in relation to an appeal to the Minister, that such appeal would have to be to “the relevant Minister” and clearly not to another Minister who had nothing to do with the matter in question. Members could agree to disagree on this point. He noted his concerns that the parties were not meeting each other on fundamental issues.
No amendments were proposed to Chapter 9
Clause 35: Responsibilities of Agency
Mr Lees noted that clause 35(a) currently said that the Agency was responsible for monitoring all organs of state for compliance with prescribed controls and measures to protect valuable information. This would mean that the Agency would, for example, monitor the Companies Registration Office, Department of Home Affairs and other bodies. He reiterated the DA’s “continuing refrain” that valuable information should not form any part of the Bill. However, if the Committee eventually decided that valuable information would be retained in the Bill, then he would still propose the deletion of this clause, as the Agency should not become involved in monitoring other bodies.
The Chairperson said that it was agreed, on the previous day, that the main arguments would always relate to classified state information. If so, the Agency should surely monitor compliance over valuable information that was relevant to state security.
Mr Lees said that the Chairperson seemed to be coming closer to his arguments. What the Chairperson had just said implied that valuable information should not in fact form part of this Bill, as the Bill should deal only with classified information.
The Chairperson said that there was a need foe the Committee to debate at what point valuable information was strategic in the sense that tampering with it might impinge upon state security. He thought that this discussion might persuade the DA to reconsider its stance, and therefore some of the amendments that it had proposed.
Chapter 11: Offences and Penalties
Clause 36: Espionage offences
Mr Bloem set out the changes that COPE was proposing to clauses 36(1)(a) and (b). His new formulation of clause 36(1)(a) would read: “to unlawfully and” (delete ‘intentionally’) “with the intention to cause harm to national security, communicate, deliver or make available state information classified as top secret, which the person knows” (delete ‘or ought reasonably to have known’) “would directly” (delete’ or indirectly’) benefit a foreign state”. This essentially involved the deletion of the phrases “intentionally”, “ought reasonably to have known” and “indirectly”.
He then noted that a similar wording must apply to 36(1)(b), in that the word “ intentionally” would be replaced with “with the intention to cause harm to national security”, that the phrase “or ought reasonably to have known” would be deleted, and that the word “indirectly” (benefit a foreign state) would be removed.
Mr Bloem stressed that similar amendments must also be made for clauses 36(2)(a) and (b), and 36(3)(a) and (b).
Mr Mazosiwe tabled the ANC proposals on clause 36. IN general, the ANC wanted to remove the minimum sentence time periods, and leave this entirely in the hands of the courts, although the reference to the maximum periods would remain, as “not exceeding 25 years” for clause 36(1), “not exceeding 15 years” for clauses 36(2) and “not exceeding five years” for clause 36(3).
Mr Mazosiwe said that the ANC also wanted to remove the words “or ought reasonably to have known”. However, unlike COPE, the ANC wished to retain the phrase “directly or indirectly benefit a foreign state”.
These principles were reiterated for subclauses 36 (1), (2) and (3).
Mr Bloem said he did not have problems with the essence of what the ANC had suggested in respect of the deletion of “ought reasonably to have known” but still wished to remove the reference to “indirectly” and the replacement of “intentionally” with a more specific “with the intention to cause harm to national security”.
Mr Lees noted that he agreed with some of the amendments proposed by the ANC. At the outset, he agreed with the removal of the minimum sentence in principle.
The DA’s proposals for rewording of clause 36(1)(a)were set out on page 6 of the attached document, and read: “to unlawfully and with the intention to benefit a foreign state communicate, deliver or make available state information classified top secret to a foreign state or agent, which the person communicating such information knows would directly benefit a foreign state” Clause 36 dealt with espionage offences, and should be restricted to this particular type of offence. For this reference the DA had added in the reference to making top secret information available “to a foreign state or agency” as well as the reference to “benefit a foreign state”.
In respect of clause 36(1)(b), the proposed wording was “to unlawfully and with the intention to benefit a foreign state make, obtain, collect, capture or copy a record containing state information that has been classified as top secret, which the person knows would be communicated to a foreign state or agent and would directly benefit a foreign state”.
He summarised that in respect of clauses 36(2)(a) and (b) the DA agreed with the COPE proposal to replace the word “unlawfully” with the phrase “ with the intention to cause harm to national security”, and also agreed with COPE’s proposal and the ANC proposal to delete the phrase “or ought reasonably to have known”. The DA also agreed with the COPE proposal to delete “or indirectly”.
The DA proposed different wording for clause 36(3)(a) and (b). It proposed that, after the words “and unlawfully and” the phrase “with the intention to benefit a non state actor engaged in hostile activity” should be inserted. The COPE proposals to delete “intentionally”, “ought reasonably to have known” and “or indirectly” were supported.
The Chairperson requested that Members deal with the proposals as a “package”.
Mr Matila said that all three proposals were different. The ANC felt that its own proposals should be accepted. The proposals of other parties would be rejected.
Mr Bloem said that COPE did agree with the principle for removal of the minimum sentences, as proposed by the ANC and the general in-principle opposition to minimum sentences expressed by the DA. However, COPE wished to stand by its proposals.
Mr Lees said that the DA's amendments amounted to a complete rewriting of 36(1)(a) and (b), but noted that this was not accepted by the ANC. He did, however, note that all parties were agreed on the removal of the words “or ought reasonably to have known”.
Mr Chaane said that, other than for clauses 43 and 49, the DA and COPE agreed with many of the suggestions proposed by the ANC. He suggested that perhaps the Secretariat work on the document and highlight those areas of commonality, for further debate. However, he did note that the ANC had serious disagreements with the opposition parties in respect of clause 43.
Mr Nzimande noted also that a major point of departure was that the ANC wanted to retain “intentionally” whereas COPE and the DA had a different formulation.
Mr Bloem thought that the parties were not very far apart, and made a formal proposal that all the parties should sit down together and work on a formulation acceptable to all.
Ms Dikgale said that the Secretariat had captured the differences and the points where the ANC did not agree with the other parties.
Mr Lees asked if his insertion of the phrase “and with the intention to cause harm to national security” was accepted by the ANC.
Mr Nzimande said that the ANC wished to maintain its own wording. This would apply for every clause where changes had been suggested
Clause 37: Receiving state information unlawfully
Mr Mazosiwe said that the ANC was proposing similar amendments to clauses 37(1, (2) and (3) as it had suggested in relation to clause 36, in relation to the removal of the phrase “or ought reasonably to have known”.
Mr Bloem said that in clause 37(1), COPE suggested the replacement of the word “intentionally” with the phrase “with the intention to cause harm to national security”. He also noted COPE’s desire to delete “or ought reasonably to have known” as well as deletion of the word “indirectly”
Mr Lees noted that the DA’s proposals were in line with the proposals on clause 36 (3); namely that after the word “to unlawfully and” the phrase “ with the intention to benefit a non state actor engaged in hostile activity” should be inserted. The words “intentionally”, “or ought reasonably to have known” and “or indirectly” should be deleted.
Ms Ntwanambi noted that no proposals had been made from the ID.
The Chairperson asked each party then to summarise its views.
Mr Mazosiwe noted that the notion of the assumption of guilt, as set out in the phrase “or ought reasonably to have known” was being removed. The ANC maintained that its proposals should be accepted.
The Chairperson asked how the ANC felt about the removal and substitution of “intentionally” and deletion of “indirectly”.
Mr Matila said that the proposals of other parties created a difference in meaning and would not be agreed to by the ANC.
Mr Lees said that the DA agreed with the deletion of “ought reasonably to have known”, agreed with COPE’s deletion of “or indirectly” but still wanted to propose its own insertions.
Mr Bloem said that COPE wished to stand by its wording, although it agreed with the proposals of the ANC on reduction of sentences.
Clause 38: Hostile activity offences
Mr Mazosiwe, for the ANC, said that the same principles as set out in respect of clause 36 would apply to the relevant wording in clause 38(1)(a), (b), clause 38(2)(a) and (b) and clause 38(3)(a) and (b).
Mr Bloem also repeated, for clauses 38(1), (2) and (3), similar wording as he had proposed for clauses 36 and 37; namely, to replace “intentionally” with “with the intention to cause harm to national security” and to delete “ought reasonably to have known” and “indirectly” (benefit)
[PMG note: when Mr Bloem read out the clauses, he stated that the wording read “with the intention to cause “substantial” harm to national security, although the Committee secretary, referring to a written document that had been provided to the Committee, noted this as “cause harm to national security” – the version typed up on the overhead screen was not challenged by Mr Bloem.]
Mr Lees noted that in respect of clauses 38(1)(a) and (b) the word “or” that appeared after “hostile activity” should be deleted, and replace with “that would”. This was a more peremptory statement that “or”
In addition to this, the DA had similar amendments as had been made in respect of clause 37; namely, the insertion of “with the intention to benefit a non state actor engaged in hostile activity”, the deletion of the words ‘intentionally”, “ought reasonably to have known” and “or indirectly”. There was no need to debate the issues at length, as similar motivations applied.
Clause 39: Harbouring or concealing
Mr Mazosiwe set out the ANC proposals for clause 39, saying that the words “or has reasonable grounds to believe or suspect” should be removed.
Mr Lees noted that the DA agreed with this proposal in principle.
Ms Ntwanambi said it should not be assumed that the ANC agreed with the proposals of the DA
Mr Bloem thought that there were not major differences in principle around the wording of this Chapter.
Ms Ntwanambi did not agree.
Mr Bloem suggested that the word “intentionally” should be deleted and replaced with the phrase “who, with the intention to cause harm to national security”.
He also wished to note changes to clause 40(6)(b). He suggested that after the word “wilfully”, the words “ and with the intention to gain access to information which that person is not entitled to receive”.
Mr Lees noted that the DA’s written proposal had suggested that the phrase “and, with the intention of gaining access to information which that person is not lawfully entitled to receive” be inserted in the same place.
Mr Bloem commented that it was clear that the ANC was not prepared to accept any other proposals of other parties.
Ms Ntwanambi asked that Mr Bloem should not try to redirect the meeting.
Mr Gunda noted that different parties had put their views, that they clearly had the right to state their views and that there would be opportunity for debate in the house.
The Chairperson said that she was essentially noting where parties agreed to disagree. The Committee would still be receiving feedback from the Department and the Committee would have to vote formally on all clauses of the Bill.
Ms Ntwanambi noted that all parties had expressed their mandates. It was now up to the Department to either agree with the amendments, or suggest any changes.
The Chairperson asked that Members should not belabour the point.
Mr Bloem stressed that the COPE was not opposed to amendments proposed by other parties, and in some cases had indicated agreement with points raised by the DA and ANC.
The Chairperson requested the Secretariat to compile a document over the weekend reflecting the changes proposed.
Mr Chaane noted that the ANC was also noting the areas of agreement and disagreement and hoped, from next week, that the Committee could work from one document.
No parties made submission on this clause.
No parties made submission on this clause.
Clause 43: Disclosure of classified information
Mr Bloem noted that his proposals on this clause were similar to those stated earlier. The word “intentionally” should be replaced with “and with intention to cause harm to national security”.
Mr Mazosiwe noted that the ANC was proposing an amendment in line with the principle stated earlier, that the Bill should not attempt to impose minimum sentences (sic).
In addition, the words “classified information” should be replaced by “classified state information as provided for in section 36 of this Act”.
The word “is” should be removed from the third line of clause 43 and a new subclause would be inserted under the existing (b).
The subclauses would then read;
”(a) is protected under the Protected Disclosures Act, 2000, (Act No 26 of 2000) or section 159 of the Companies Act , 2008, (Act NO 71 of 2008), or
(b) or is required in fulfilment of a responsibility assigned by any other law; or
(c) reveals criminal activity, including criminal activity for ulterior purposes listed in sections 14 and 47 of this Act.”
Mr Mazosiwe said this removed any uncertainty as to the type of information that could be classified. Clause 14 placed stringent conditions on the information that could be classified. This insertion would also make it quite clear that government did not wish to defend or cover corruption in any form.
Mr Chaane said that the ANC formulation allowed for the conditions under which disclosure would be allowed. There were a few convergences between this, and the DA's proposals for clause 49. He thought that Members should apply their minds to this submission, as this might lead to some of the proposals around clause 49 falling away. However, the ANC wished to stick by its proposals.
Clause 44: Failure to report possession of classified information
Mr Lees said that the maximum sentence should be one year, and not five years. This clause did not cover the situation where a person caused actual harm to national security. It related to a person who failed to comply with the requirements about handing in a document in the manner prescribed in clause 15.
The DA wanted to propose additions to this clause, as follows: “provided that no person may be prosecuted
(1) if that person has, within 14 days of receipt, applied for declassification as contemplated in this Act, or
(2) if that person has, within 14 days of receipt, applied to the Classification Review Panel for a review of the classification as is contemplated in this Act, or
(3) if that person has, within 14 days of receipt, applied to a court of law for an urgent review of the classification of the classified records or part thereof, or
(4) where the information or a part thereof that is contained in a classified record has been improperly classified in terms of this Act”.
The ANC and COPE indicated that they were not prepared to concede to these suggestions and would be maintaining their stance on this Chapter.
No parties proposed changes to this clause.
Clause 46: Destruction of alteration of valuable information
Mr Lees said that archives contained valuable information. The National Archives and Records Services Act prescribed a two-year penalty for the same offence as was set out in this clause, although this clause was calling for a three year penalty. In line with the DA’s requests to have valuable information deleted altogether from the Bill, its first proposal was that the whole clause should be deleted. However, if the principle was not accepted, then the DA wished to propose that the penalties be brought into line, and this clause should make provision for a two-year penalty.
An ANC Member indicated that the ANC had not made any suggestions on this clause, and did not agree with the replacement of the time period.
Mr Bloem also said that COPE did not agree with the DA’s suggestion.
Clause 47(c)(1): Improper classification
Mr Mazosiwe said that the ANC wished to propose that after the words “conceal breaches of the law” the words “corruption or any unlawful act or omission, incompetence, inefficiency or administrative error” should be added.
The other parties did not indicate any dissent on this.
Clause 48: Failure by (official) to comply with Act
Mr Lees noted that this dealt with the failure of a head of organ of state or official to comply with the Bill. The DA believed that the penalty was too light. It was expected that the head of an organ of state and officials should follow the law to the letter, and that the penalties should be severe enough to emphasise the severity of non-compliance and to persuade them to comply. For this reason, the DA proposed that the reference to “two years” be replaced with “five years”.
The ANC indicated that it did not agree.
Clauses 49: Prohibition of disclosure of state security matter
Mr Bloem set out the COPE proposal to amend this clause. In summary, his proposal was that a new subclause (2) be added, to read:
”(2) nobody should be guilty of an offence under sections 42, 43 or 44, if that person had acted in the public interest, and if the person had reason to believe that the classified information showed :
- that a criminal offence or breach of the law has been, is being or is about to be committed
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject
- that a miscarriage of justice has occurred, is occurring or is likely to occur
- that the health or safety of individuals has been, is being or is likely to be endangered
- that the environment has been, is being or is likely to be damaged
- that a public safety risk exists
- that gross incompetence, mismanagement or impropriety on the part of any person has occurred or is occurring
- that an unlawful act, inefficiency or administrative error is being promoted
- that an undue advantage is being given to anyone in a competitive bidding process and that the public is being misled by a statement
and an additional subclause (3) as follows:
” (3) no person is guilty of an offence under sections 42, 43 or 44 if the person establishes that the information, or substantially the same information as that being disclosed, was in the public domain at the time of disclosure”.
Mr Mazosiwe then put the ANC amendments to clause 49. After the word “disposal” the word “information” should be replaced with the words “classified state information”. In addition, the words “or reasonable should know” should be deleted from the second line of that clause.
Mr Lees noted that this clause dealt with the security establishment, and not the general public, as it referred to “who has in his or her possession or under his or her control” information that related to state security. Whilst the DA believed that there should be a public interest defence, it must be tailored towards employees and operatives of the state security services. Therefore the words “any person” on line 24 of the page should be replaced with “any employee and/or operative of the Agency”.
Then the DA proposed the addition of a new subclause (2), which would be a public interest defence applicable to employees or operatives of the Agency. The wording for this was set out on page 8 of the attached document. It defined acting in the public interest as including
“(b)(i) disclosing an offence under any law that he or she reasonably believes has been, is being or is about to be committed by another person in the performance of that person’s duties and functions for, or on behalf of, the government of South Africa, and:
(b)(ii) the public interest in the disclosure outweighs the public interest in non disclosure”
He explained that the court would be required to determine whether (b)(i) was satisfied, before considering (b)(ii).
The Court also “must” consider, in reaching its decision on whether the public interest in disclosure outweighed the public interest in non-disclosure, a number of factors, including whether the extent of the disclosure was no more than reasonably necessary to disclose the alleged offence, or prevent its commission or continuation, as well as the seriousness of the offence. Furthermore, consideration would be given to whether the person resorted to other reasonably accessible alternatives, including compliance with guidelines, policies or laws, whether the person had reasonable grounds to believed the disclosure would be in the public interest, the public interest that was intended to be served, the extent of the harm or risk of harm created by the disclosure, and whether there were exigent circumstances to justify the disclosure. Furthermore, as set out in (2)(e), the court may decide that public interest in disclosure outweighed the public interest in non-disclosure only if the person had complied with conditions that included firstly, bringing the concerns and providing relevant information to his superiors, and, failing a response to that within a reasonable time, then bringing the concerns and information to the Joint Standing Committee on Intelligence. These preconditions would not apply, however, if the communication was necessary to avoid grievous bodily harm or death>
The Chairperson noted that the parties did not find common ground on this clause.
New Clause 50: Public interest / domain defence
Mr Lees emphasised again that the public interest defence that he had outlined under clause 49 was geared to operatives in the security services. However, the DA also believed that there was a need for another clause to cover the general public. Therefore, the DA wished to propose a new clause 50, set out on pages 9 and 10 of the attached document.
Briefly, the clause set out that no person would be guilty of an offence in terms of any section of the Act if the person established that he was acting in the public interest by disclosing classified information. The public interest would be deemed to apply if the person had reason to believe that the classified information showed one or more instances where there was past commission, ongoing commission, or imminent commission of:
- a criminal offence or breach of the law
- failure to comply with legal obligations
- a miscarriage of justice
- something that would endanger the health of safety of an individual
- something that would endanger the environment
- a public safety risk
- gross incompetence, mismanagement or impropriety on the part of any person
- an unlawful act, inefficiency or administrative error
- something that gave undue advantage to any person involved in, or who should have been involved in, a competitive bidding process (tenders)
- an act or statement that was misleading the public
Subclause (3) set out the factors that the court may take into account when deciding whether or not this disclosure was in the public interest. These would include:
- whether the extent of the disclosure was reasonably necessary,
-the seriousness of the alleged offence,
-whether the person resorted to other reasonably accessible alternatives before making disclosure, including complying with any other relevant laws,
-whether the person had reasonable grounds to believe that the disclosure was in the public interest
-the public interest intended to be served
-the extent of the harm or risk created by the disclosure
- existence of exigent circumstances to justify the disclosure.
The new subclause (4) stated that no person would be guilty of an offence if the person established that the information, or substantially the same information, was in the public domain at the time of the disclosure.
Ms Ntwanambi said that the ANC did not believe it was the function of this Committee to rewrite the Bill, but to make proposals to improve the current Bill, where necessary. The ANC would not support the public interest defence.
Mr Worth emphasised that this was essentially the public interest defence clause that so many submissions had referred to.
Clauses 50 and 51
No proposals were made on these clauses
Clause 52: Protection of classified information before Courts
Mr Bloem said that COPE was proposing, in respect of clause 52(6) that the words “a court may, if it considers it appropriate” should be replaced with the phrase “a court must” (seek the written or oral submission..):
Mr Lees indicated that the DA agreed with COPE’s submission, but did not have any amendments of its own to propose.
The ANC indicated that it disagreed with COPE’s proposals and did not have any other submissions to make.
Ms Dikgale noted, in respect of clause 54(1)(k) that the word “the” should be inserted before the word “Agency” – this was correction of a typographical error.
Mr Lees and Mr Bloem did not oppose this proposal.
Broad proposal in respect of valuable information
Mr Lees proposed a broad amendment that fell in line with oft-repeated requests by the DA to remove references to “valuable information” from the Bill. Clauses 55(2) to (5) created a regime in which past classifications would remain in force, pending the Classification Review process. The problem was that there were no set time periods for this process, and he pointed out that all the information that had formerly been classified under the Minimum Information Security Standards would remain classified, with the strict penalties that applied. This was despite the fact that the information might not be able to be classified under the new provisions in this Bill. People might have documents in their possession – particularly documents classified under the apartheid era - that revealed serious human rights abuses, and there could be automatic criminalisation of their possession of some documents that they had held for many years. He suggested, therefore that the possession of information that had been classified under MISS and the old Acts should be removed from the ambit of clause 55.
Mr Matila heard the proposal, but noted that there was much information that was possibly kept unlawfully, but that was still valuable – for instance, relating to land issues, or defence matters. It was necessary to deal with this properly, and know what the true situation was, by following a process. The ANC did not agree with this proposal
The Chairperson thanked Members for their efforts in going through the whole Bill.
Ms Ntwanambi noted that she would, on the following Tuesday, propose that the lifespan of this Committee be extended to end June, so that enough time was allocated for proper completion of all the work. The Department was asked to consider the issues raised and work on them. She proposed that the Committee then schedule a meeting for 22 May to consider the summaries prepared by the Committee Secretariat.
All parties agreed and the meeting was adjourned to the following week.
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