Protection of State Information Bill: Department of State Security Responses to Committee's proposals

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

12 June 2012
Chairperson: Mr R Tau (ANC, Northern Cape
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Meeting Summary

The Department of State Security (DSS) presented its responses to the proposals of the Committee to amend various clauses of the Protection of State Information Bill. It was emphasised that these were comments only, with supporting reasons, and that the Department fully recognised that the final decision lay with the Committee. The DSS did not agree with the proposals to change the definitions of “classified information” and “state information”, pointing out why the insertion of “valuable information, personal information and sensitive information” would cause problems when the two definitions were read together. The proposals would enlarge the scope of protection to all state information, and the proposed amendments to valuable information made the definition over-broad. In particular, it was emphasised that extending protection from non-disclosure to valuable information would affect transactions in which proof of identify must be verified, and did not fit within the systems already set up. The DSS indicated, in respect of the proposals for deletion of municipalities from “organ of state” that this definition was taken from the Constitution, that there were sufficient safeguards in relation to classifying information, and gave examples of why the opt-in provisions in clause 3 were necessary. Similarly, the definition of “national security” mirrored the definition in the Constitution, and the DSS explained why replacing “includes” with “means” would be problematic. The clauses that the DA had proposed be deleted, relating to hostile activities, espionage, economic, scientific or technological secrets, and acts directed at undermining the Republic, were all considered necessary, for reasons set out by the DSS. A legal opinion was awaited from the State Law Advisors on the definition of exposure of a state security matter, and clause 49. The DSS, the Parliamentary Legal Advisors and an official from the Joint Tagging Mechanism all gave their opinion that the Bill was correctly tagged in terms of section 75 of the Constitution. The DSS also reiterated its view that it was necessary to include protection of valuable information in this Bill, but emphasised that the protection should be limited to protection against alteration, destruction or loss, and should not include protection against disclosure. In relation to the proposal, on the one hand, to delete clause 1(4) altogether, from the DA, and to amend it, from the ANC, the DSS reiterated that it was highly unlikely that any conflicts would arise, and that it was necessary that each of the linked pieces of information was limited to dealing with matters only within their scope, which was the reason for the current wording. The DSS also explained why it was unwise to exclude “oversight bodies” from the application of the Act, in clause 3(2)(a), amplifying on this also during the question session, and confirmed that this would apply to the Joint Standing Committee on Intelligence and the closed sections of the Defence and Police committees. The DSS had originally thought that the criteria to be followed by the Minister when extending the application of the Act under clause 3(2)(b) should be set out in regulations, but conceded that some persuasive arguments had been put forward and that new wording amplifying this provision should now be included in the Bill. It had no comment to make on the replacement of “National Assembly” with “Parliament” as this was not a matter for the DSS to decide. The DSS also presented comments on Chapter 2, explaining why the proposals to improve the stylistic flow of the Chapter, by moving clauses around, would in fact have an impact on the way that they were interpreted.

Some Members felt that the DSS’s comments seemed to be attempting to justify the current wording and were not helping the Committee to move forward. Whilst the DSS reiterated that this had not been its intention, they wondered if it would not be more helpful for the parties simply to consider the DSS’s document, caucus and return at a later stage to debate issues, rather than continuing to hear the comments on each clause. ANC Members suggested that there was a need to seek an extension of time, and urged that the good work done to date should not be spoiled by rushing the final debates. The COPE Member disagreed, believed that the parties were not far from each other and could reach agreement in a day or so, but would go with the majority decision. It was finally resolved to seek an extension of time for the Committee to finalise its work, and to allow parties to consider their position over the next few days. 

Meeting report

Department of State Security Responses to Committee proposals to amend Protection of State Information Bill
Mr Dennis Dlomo, Acting Director General, Department of State Security, stressed that what he would present was a response to proposals from the Committee, and that it represented no more than an attempt to explain why certain of the proposals might cause problems, but that these were suggestions only, as it was clearly up to the Committee to make the final decision on all points.

Chapter 1:
Definitions: “classified information” and “state information”

Members had proposed that the definition of “classified information” be changes, by referring to “classified state information”.

The ANC had also proposed that the definition of “state information” be changed, by including the phrase “including valuable information, personal information and sensitive information” after the words “organs of state”.

Mr Dlomo said that when these two definitions were read together they raised a number of unintended consequences. In the first place, they enlarged the scope of protection to all state information, not only classified information. The proposed amendments to “valuable information” to include more categories could mean any information that infringed on any constitutional right, and this made the definition over-broad.

Secondly, he reminded Members that “valuable information” included documents such as ID books and drivers’ licences, which were used daily to verify identity. If these were included in the scope of state information, this would require citizens to make a judgment call, each time they presented the document, whether the disclosure of this information was lawful. He made the point that the current Bill intended to protect valuable information (which was not classified information) and sensitive information (which was classified) in different ways. Valuable information was to be protected from “unlawful alteration, destruction or loss” but not from “disclosure”. Only sensitive information should be protected from “unlawful disclosure”

Definition of “head of organ of state”
The ANC had proposed that subparagraph (b) of the definition of the head of an organ of state be deleted, that the references to municipalities in the Bill also be deleted, and that the remaining clauses be renumbered. Mr Dlomo, however, pointed out that the definition was derived from the Constitutional definition of an organ of state, which included any department of state or administration in the national, provincial or local sphere of government. He reminded Members that classification was not extended automatically to every organ of state, but only after receiving authorisation on good case shown, that they would have to apply the same procedures and comply with clauses 12 and 14, whilst the review mechanisms of clause 18 would also apply as a further safeguard.  There was a need to have the opt-in provision since national security information could be held across all organs of state – such as metropolitan police doing crime prevention, and international cooperation agreements. If subparagraph (b) was removed, it would cause problems.

Definition of “national security”
Members had suggested that the word “includes” should be substituted with the word “means” Furthermore, the DA had proposed the deletion of sub-paragraphs (b)(i), (iii), (iv), (v) and (c).

Mr Dlomo responded that the concept of national security was governed by principles set out in section 198 of the Constitution. He stressed that there was no single definition for the concept of “national security”, and he reiterated that different countries had a different approach, with some defining the threats, and others retaining a degree of flexibility, by identifying elements that may contribute to national security. He also pointed out that the Bill currently expressly excluded activities or freedoms provided for in the Constitution, being lawful political activity, advocacy, protest or dissent. The concept of national security had been defined in the Independent Newspapers case and it was also important to ensure that the definition in the Bill was aligned to the Constitution. In particular, Mr Dlomo emphasised that it should provide for all threats, including new and emerging threats. For this reason, the word “includes” was chosen as being less restrictive than “means” and allowed the clause some degree of flexibility. He pointed out that context would always be considered and “includes” did not imply that everything would be considered to be included under “national security” and the courts would have regard to the least restrictive interpretation.

Mr Dlomo said that the proposals to delete clause (b)(i) caused some serious problems. The clause on “hostile activities” was particularly important, as it referred to acts of foreign intervention. This definition recognised that non-state actors also posed a great threat, and to exclude them would expose the state to vulnerability. The deletion of clause (b)(iii) was also of concern as espionage was, across the world, a serious national security concern.

Mr Dlomo wanted to deal with the proposal to delete subparagraph (b)(iv) (exposure of a state security matter with the intention of undermining the constitutional order) when he dealt with the reasons for denying classification, as there were a number of options that could be explored, as some of the concerns raised were legitimate, and he would ask the Committee to consider some possible re-wording options.

Mr Dlomo then dealt with the proposal to delete subparagraph (b)(v), explaining that this clause was not intended to bring back the references to “commercial information”. It related directly to classified information, which would be subject to clauses 14 and 19. Economic security played a critical role in attaining national security, and this definition recognised that the state would have to engage in a number of policy choices in order to benefit the economic wellbeing of the country, and this was an important aspect of intelligence work.

In relation to the proposal to delete subparagraph (c), he explained that South Africa often had to participate in peace-keeping missions, in line with its international obligations, and this had certain consequences. The deletion of this subparagraph would undermine the capacity of the state, and detract from the responsibilities to the African Union and United Nations. He urged that this deletion be reconsidered.

Tagging of Bill
The DA had submitted that the Bill had been incorrectly tagged as a section 75 bill, and suggested that the inclusion of the provincial archives, which was a provincial competence, meant that the Bill should have been tagged as a section 76 bill. Mr Dlomo responded that the Office of the Chief State Law Advisor (OCSLA) had indicated that the Bill was correctly tagged, and that advice had been accepted.

The Chairperson asked if anyone was present from that Office. He was later informed that they had been delayed in another meeting but would attend as soon as possible. He noted Mr Dlomo’s suggestions to engage further when the state law advisors arrived. However, he later asked an official from the Joint Tagging Mechanism, as well as the Parliamentary Law Advisors, to speak to this point.

The Parliamentary official noted that tagging involved an examination of all issues in relation to schedules 4 and 5 of the Constitution, the substance of the Bill and whether the matters contained in it fell within a national or provincial competence. Despite the reference to the provincial archives, the Joint Tagging Mechanism noted that national government had a residual competence over the matters in the Bill and confirmed that a section 75 tagging was appropriate.

Mr Nthuthulezo Vanara, Parliamentary Legal Advisor, noted the test for tagging as set out in court judgments was essentially whether matters enumerated in section 76(3) of the Constitution were covered by the Bill. There was nothing in that list that would require a section 76 tagging. The substantial measures test related to matters of concurrent national and provincial competence, as set out in schedule 4, and once again, nothing was covered here that would require a section 76 tagging.  Provincial archives were an exclusive provincial competence, as set out in schedule 5, but there was nothing in the Bill that justified a section 76 tagging. He agreed that the Bill was correctly tagged.

Definition of “sensitive information”
Members had proposed that the word “state” be inserted so that the definition would commence “sensitive state information” means state information which must be protected…”. Mr Dlomo said that he had already indicated that the insertion of “state” would have unintended consequences when this definition was read with others. He wanted to contextualise the matter. He indicated that the DA had suggested that the Bill should not include valuable information at all in the Bill, but he had pointed out that this already caused difficulty since that information was not protected elsewhere. If the proposal to delete valuable information was followed, this gave rise to other consequences about the logic of the Bill. One approach was that the highest sovereignty of the country was made up of the individuals who lived in that country, and a social contract was created between the state and its people. Exclusion of valuable information from protection amounted to excluding the state and the people it defined, and without that there could not be citizenship with its consequential responsibilities. Documents formed the basis of citizenship and the social compact. If no legislation defined who must protect valuable information, then a large part of national security work was also not covered. He pointed out that challenges that came from improper access to valuable information included smuggling and trafficking, both of which were most often done using forgeries of documents that were in the category of valuable information. The Department of State Security (DSS) had to ensure, in order to do its work properly, that valuable information was protected. For this reason, the proposal to exclude valuable information could not be accepted.

Equally, the proposals that sensitive information be amended to refer to “state information” and the proposal, in clause 3, that “valuable information” be replaced with “state information”, and be protected against “unlawful disclosure”, as well as alteration, destruction or loss, would not work. He reiterated that there was a conscious decision to treat valuable information and sensitive information differently. Valuable information was information held by the state. However, if the protection measures against alteration, destruction or loss were extended to include also protection against disclosure, the system would not work, since more guidelines would be required on whether a passport or ID book may be shown, and to whom, and the current system of verifying identity would grind to a halt. To include “protection from disclosure” would go further than what the Bill and the systems in place intended and would have serious implications.

Definition of “state security matter”

Mr Dlomo noted that once again there was a proposal that the word “includes” should be replaced with “means”. He had discussed this definition with the OCSLA and there were essentially three options, which would be considered together with proposals on clause 49. One option might be to delete this clause (and the definition) altogether, provided that OCSLA believed that issues pertaining to sources and methods were adequately protected elsewhere. The second option might be to expressly remove everything that did not refer to sources and methods. The third option would be to adopt some of the proposals that had been tabled. However, he wanted OCSLA to present a legal opinion and suggested that it would be useful to let this stand over.

Definition of “valuable information”: DA proposal

The ANC had proposed an amendment of the definition, and the DA, consistent with its view that valuable information should be removed from the Bill, had proposed that the definition be deleted, and asked that the Committee consider the points raised.

Definition of “valuable information”: ANC proposal and proposals to amend clause 1(4)
In relation to the ANC’s proposal, he reminded Members that he had outlined the system under which information was managed. Essentially, the Promotion of Access to Information Act (PAIA) dealt with access to information, the Protected Disclosures Act (PDA) dealt with disclosures and how whistleblowers were protected, and the Protection of Information Act (to be replaced with this Bill), dealt with protection of information. All were also guided by the Promotion of Administrative Justice Act, which dealt with how issues of administration must be handled. The National Archives of South Africa Act dealt with how information of historical value must be kept. This overarching framework would remain in place, with the Protection of Information Act, which was not Constitutionally compliant, being replaced by this Bill. He wanted to emphasise that whatever weaknesses might be apparent in other parts of the system, it was not the intention that this Bill should correct them, as this should rather be done through amending the relevant legislation. If a piece of legislation that was meant for protection tried to take over legislation that was meant for disclosure, this would create confusion in the system. He reminded Members that PAIA already set out when information must be disclosed, may be disclosed, or must not be disclosed. PAIA did not provide for classification, because the purpose of that Act was to deal with access. The Bill must guide the process of classification and release from classification. In the unlikely event that there might be a conflict, this Bill should determine how protection must be exercised, to ensure uniformity and clarity in the systems. It was therefore not for this Bill to determine, as the ANC’s proposal suggested, whether the alteration, destruction or loss was likely to infringe on constitutional rights.

These remarks about the link between the PAIA and the Bill also applied to the two proposals, one to delete clause 1(4) altogether (from the DA) and one to delete the words “and despite section  of the Promotion of Access to Information Act” (from the ANC). Mr Dlomo had already, in the previous week, explained that it was highly unlikely that there would be any conflict between PAIA and the Bill.

Clause 2: Objects of the Act
Mr Dlomo noted that the DA had proposed that clause 2(f) be deleted, as a consequential amendment to its proposal that “valuable information” should not be dealt with in this Bill. Subclause (f) set out the nature and categories of state information that had to be protected, and he reiterated that it was to be protected against unlawful alteration, destruction or loss. He pointed out that a distinction must be made between hard and electronic copies of information. This was included so that the intelligence and law enforcement agencies could track and investigate what had been changed, and by whom, to make a distinction between lawful and unlawful changes – and he cited an example of manipulation of marriage certificate. One more protection was added for “sensitive information”, namely protection against unlawful disclosure. He reminded Members that there were circumstances when even classified information may be disclosed, if the need to keep that information secret was outweighed by the public interest in disclosing, so that a balance was required.

Clause 3: Application of the Act
Mr Dlomo said that the proposal of the DA to delete this clause was consequential upon its proposal to delete valuable information and it was not necessary for him to deal with it. He had already dealt with the ANC’s proposal in relation to replacing “valuable information” with “state information” and why there should not be any reference to “unlawful disclosure” in relation to valuable information.

The DA had proposed that in clause 3(2)(a), “the oversight bodies” should be excluded from the application of the Bill. Mr Dlomo said he had research best practice around management of information by oversight bodies. If oversight bodies were to have unlimited access to sensitive information, this must obviously be coupled with the need to keep confidentiality, and this was something that was accepted by the various Congresses in the USA, in Canada and by the International Intelligence Review Agency Conference. Exclusion of this phrase would have a negative impact. He referred Members to Occasional Paper 3, from the Geneva Centre for Democratic Controls of Armed Forces, which provided good insight as to why the oversight bodies must be included.

Clause 3(2)(b) had been deliberated by various bodies during the public hearings. Originally the drafters had felt that the criteria to be followed by the Minister, in deciding upon the conditions under which a body could opt in, should be covered in regulations. However, the arguments had been persuasive, and the DSS would support more specific criteria being included in this clause. He had drafted suggested wording, and had asked the State Law Advisors to consider it, and this could be debated later. Any other proposals as to the wording would be welcomed.

Clause 3(2)(b) and other references: “National Assembly” to be substituted with “Parliament”
Mr Bloem asked for comment on the proposal to replace the references to “National Assembly” with references to “Parliament”.

Mr Dlomo said that the DSS had taken note of this proposal, did not think that it was material to the operation of the Bill, and would be guided by the Committee.

Mr R Lees (DA, KwaZulu Natal) quipped that from what had been said it seemed that the score was nil to the Committee and 16 so far to the DSS. He wondered if the DSS was aware of the United Nations concerns around the impact of this Bill and suggested that perhaps a less adversarial approach should be adopted.

Mr Lees referred to the comments on the DA’s proposals for valuable information and pointed out that a number of illegal actions, including human trafficking, relied on forged documents. The valuable information was presently not protected in other legislation, as set out by Mr Dlomo, yet it was still possible to prosecute for forgery, and he did not see that the enactment of this Bill, including references to valuable information, would do anything to change that position.

Mr Lees wondered why a case was being made out, in relation to clause 3(2)(a), to bring oversight bodies under the scope of the Bill. The Select Committee on Finance, for instance, did oversight, and he saw no reason to classify anything that it produced from oversight reports and hearings. He agreed that where an oversight body might need access to classified information, it should not be divulged further, but that could perhaps be covered by drafting other clauses rather than giving a blanket protection, and including these oversight bodies as an organ of state capable of classifying.

Mr Lees made the point that the Committee had already gone quite far with the Bill and he questioned whether there was really a need for the DSS to deal with every clause on which the Members had consensus, unless there was a good reason why the DSS wanted to persuade Members otherwise.

Mr D Bloem (COPE, Free State) agreed that the Committee was not far from reaching agreement, and thought that since the majority of the proposals listed emanated from the ANC, it might be useful for that party to lead the discussions.

Mr J Gunda (ID, Northern Cape) questioned why some of the alternatives had not been suggested at a much earlier stage. He referred to the comments around valuable information, and questioned why the DSS was suggesting that IDs could not be protected. He suggested that, despite the emphasis on this document, a forgery or theft of an ID would not have such an impact on national security. He wondered why the DSS had not, at the outset, explained what it meant by “valuable information”.

Ms N Ntwanambi (ANC, Western Cape) was very critical of Mr Gunda’s comment and said that he “should not go through the country lying to people and suggesting that their IDs were important, if today he said that the ID was not valuable”. She asked that Members should prepare their comments more carefully before making statements, and confine themselves to specific questions. She thought forging of passports and IDs was serious.

Mr Lees raised a point of order. He thought it was inappropriate to begin a debate by one Member accusing another of lying. He requested that the Chairperson intervene.

The Chairperson commented that Members were themselves creating the problems, since they were not being consistent with their own procedures. In the previous week, the Committee had agreed on a process, namely that the DSS should respond to the proposals, yet they were now questioning that process, and even the credibility of the DSS. The DSS, as custodian of the Bill, was explaining why the Bill had been drafted in a certain way. Clearly, the officials would prefer their own version, but the Committee would finally make the decision and had the right to differ from what the DSS proposed. The whole purpose of this exercise was to allow the DSS to respond and explain,  and problems would be created if Members questioned that exercise. At some point, the parties would need to make a decision, having reflected on the points raised, but he appealed that if there were no questions of clarity, the DSS should simply be allowed to proceed with the presentation.

Mr T Chaane (ANC, Free State) thought that this was the correct direction to take, but took issue with the quip around “scoring” and urged that Members should listen very carefully to what was being proposed. If Members were to argue every point, this gave the impression of attempts to de-rail and politicise the process. Members had to think seriously about their obligations as legislators.

The Chairperson agreed that the time would come for Members to make populist political statements, but urged them, at this stage, to remain as objective as possible, in order to move forward.

Mr Dlomo started his responses by assuring the Committee that his intention was never to be adversarial. He had stressed at the outset that he was presenting comments to the proposals and the reasons for those comments, but at the end of the day it was not up to the DSS to make the final call how the Bill should be worded. He was not raising opposition to the proposals merely for the sake of doing so, but to point out the genuine concerns.

Mr Dlomo firstly dealt with concerns around the protection of information contained in personal documents. He reiterated that the purpose of the Bill was to ensure a consistent and coherent business process for the management of information. The law was one of general application, and the basic reference for protection f information would be this Bill, in which all protection of information would be referenced, even if repeated elsewhere. He pointed out that one of the most serious challenges that the intelligence services faced was around human trafficking, and information relating to identities had to be protected. Fraud was a matter for the police at the moment, and would remain so. However, human trafficking was a national security matter, and this Bill would provide additional leverage for the work of intelligence officers. He cited the example of a combatant who had been killed recently in Somalia, who was found in possession of South African IDs, drivers’ licences and passports. This showed clearly that South African documents were being used for the purpose of furthering networks of international terrorism. Some of these problems would be addressed through the systems outlined in the Bill.

Mr Dlomo added that he had attempted to explain why protection from disclosure would not be appropriate in relation to valuable information, and had stressed the specific intentions to protect valuable information only from alteration, destruction or loss. He agreed that it was clearly not possible to protect an ID document, or indeed any other “transactional document” from being disclosed, and pointed out that IDs formed the basis on which social security was paid. Their value, however, must be accepted.

In relation to concerns about oversight bodies, Mr Dlomo assured the Committee that the DSS was not intending that all oversight bodies be covered, only those with access to sensitive information, who did oversight over institutions mentioned in Chapter 11 of the Constitution. This essentially meant the Joint Standing Committee on Intelligence (JSCI), and the closed sections of the Defence and Police Parliamentary committees. The normal work of other oversight bodies, including this Committee, would not be affected by the classification provisions and there was no intention to introduce any blanket provisions. The DSS had already conceded that end-to-end security matters were not desirable, and it was for this reason that the Ministry had proposed limiting the Bill, accepting the legitimate concerns around the initial over-broad application of the Bill, and apologising for the poor definitions when the Bill was first tabled.

Chapter 2
Clauses 4, 5 and 6

The ANC had proposed that “state information”, be moved from line 21 to 23, that “protected information” be moved from clause 5(1) and (2) to become a new 4(j) and that other clauses be changed around, as more fully set out in the Committee Proposals document. The current wording of clause 6(1) should be moved up to clause 4(1), and other changes were to be made to the existing subclauses of clause 6.

Mr Dlomo said that the proposed re-ordering of clauses caused some problems. The inclusion of some clauses under general principles would have the effect of reducing them to part of the list of general principles. The intention of the changes was clearly to improve the style, but the new order did not actually speak to the norms and values being considered. The DSS therefore proposed that the clauses dealing with normative matters be retained in their current position. Subsuming them under “general principles” would confer a measure of discretion, and this was contrary to the intention of the drafters. However, there were ways in which the stylistic concerns could be accommodated.

He noted that it was also proposed that the phrase “some confidentiality and secrecy” be deleted from the existing clause 6(g). The new wording proposed brought a new discourse around the protection of information. The White Paper on Intelligence set out a balancing test, inspired by the International Covenant on Civil and Political Rights (ICCPR), which was carried over into this clause, and if it were to be changed, it would impact not only on the jurisdiction, but also on the profession and teaching that was offered in the sector. He explained that this test comprised three parts, and it would not be easy to apply the test if the ANC’s proposals for the changes to this chapter were carried. For this reason, he urged the Committee to reconsider the matter. He accepted the spirit in which the proposals were made, with the intention clearly being not to promote secrecy for the sake of secrecy alone, and to ensure that the default position was one of openness and secrecy, but urged that the test as set out in the Bill presently should not be changed in an attempt to answer the misunderstandings that had dominated the public discourse on secrecy.

Mr Dlomo commented that the DA had made proposals consequent upon its main assertion that valuable information should be deleted from the Bill, and the ANC had also made a proposal for a new clause 4(2), similar to wording previously suggested, to read that “state information may in terms of this Act be protected against unlawful disclosure”. He had already dealt with comments on these and would not repeat them.

Mr Bloem suggested that rather than stopping at the end of each Chapter, the DSS should go through all its comments now.

Mr Chaane wondered when the DSS would be able to respond to some proposals, and to present the options that Mr Dlomo had referred to earlier, which were being considered by the legal advisors.

Mr Dlomo said that he was accompanied by a team of drafters, who could also comment on possible options, but suggested that the DSS needed to be guided by the Committee how it wished to move forward.

Mr Bloem wondered if it would be correct for the DSS to address legal issues separately.

The Chairperson said that he thought that while the DSS was responding, it could also raise legal concerns on the Bill. Whilst the legal team could suggest rephrasing, it was up to the Committee to decide finally on those amendments. Nothing stopped Members now from suggesting that the DSS should start working on new wording.

Mr Bloem said that the DSS was already putting some proposals, but COPE felt quite strongly that its own proposals were preferable.

Mr Chaane noted that the Committee was faced with time constraints, if the DSS still needed to revert on some of the legal issues.

Mr L Nzimande (ANC, KwaZulu Natal) said that the DSS had indicated that it would be amenable to some of the changes suggested by Members, and he thought that the Committee would need to debate the clauses around provincial archives. He was concerned that the State Law Advisors were not present. He wondered if the Committee would be able to finish the Bill by 21 June.

The Chairperson said that Members were now raising issues that he thought would have been debated later.

Mr T Mofokeng (ANC, Free State) proposed that the Chairperson should be mandated to ask for an extension of time for the Committee to carry on deliberating and complete the matter.

Mr A Matila (ANC, Gauteng) agreed with this proposal.

Mr Bloem was disappointed, reiterating that he had already expressed his view that Members were not far from reaching agreement, that there had been substantial progress, and suggested that Members might need only a day to debate and agree on the final version. He would go along with the majority decision, but personally did not believe that more time would be needed.

Mr Gunda suggested that perhaps the Committee needed to meet on its own, without the DSS, on the following day, and then call the Department back if necessary.

Ms M Dikgale (ANC, Limpopo) disagreed with this, and thought it would not assist with the progress.

Mr Chaane suggested that DSS be allowed to continue presenting the document and the areas on which a legal opinion was required could be set aside for later debate. He also reminded Members that the Parliamentary Legal Advisors could be asked to give their input.

The Chairperson noted that once again Members seemed to be suggesting a number of changes to the process. DSS had presented a written document, and he ruled that all parties must consider the document, in depth. The DSS should be given the opportunity to finalise and present on the outstanding matters, such as the legal opinions on options mentioned earlier, which would be presented in the form of proposals. He said that this clearly had implications on the programme.

Mr Nzimande reiterated that issues around provincial archives were important, and he would need to hear the views of his provincial legislature. He pointed out that the DSS could not be excluded from attending meetings, even if the officials did not present. He, unlike Mr Bloem, would not be ready to take decisions in one day.

Ms M Boroto (ANC, Gauteng) agreed that parties would need to make observations on the DSS document. To date, Members had done excellent work on the Bill, and it would be a pity to rush the final stages. He proposed that nothing more should be presented by the DSS in this week.

The Chairperson agreed that the Committee had come far since January, and also agreed with Mr Bloem that Members were not far apart. The DSS would need to finalise its own processes, parties would need to engage independently, and Members should also engage with each other, including outside of Committee meetings, and should also phone the DSS if they needed clarity. At the same time, however, the process should not be unduly delayed. 

Ms D Rantho (ANC, Eastern Cape) suggested that the Chief Whip could be mandated to suggest a possible date for the extension, bearing the House programmes in mind.

Mr Gunda agreed and said that a programming meeting would be held on the following day.

The Chairperson confirmed Members’ agreement that the Committee seek an extension, as it would not be able to pass the Bill on 21 June. Members would no longer meet on the following day.

The meeting was adjourned.


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