Department of State Security responses: Protection of State Information Bill proposed amendments

Meeting report

Protection of State Information Bill: proposed amendments
Chairperson’s opening remarks
The Chairperson summarised that on 12 June the political parties were asked to engage with the responses given so far by the Department of State Security (DSS or the Department) to the proposals on the Protection of State Information Bill (the Bill). Secondly, all parties were asked to reflect again on issues raised by other parties, and to raise issues on which they needed clarity.

He noted that there had been some difficulties arising from the allegations that the DSS had been arrogant and attempting to railroad the Committee. He stressed that he thought this incorrect; at no stage had he found that the DSS had shown any disrespect. Rule 160 spoke to the establishment of any ad hoc committee, set out the mandate and how the committee should function, and the relationship that should exist between committees and departments. He also noted the content of the Constitution. At no stage since establishment of this Committee had the impression been given that the DSS did not wish to attend meetings, respond to issues, listen to the Committee's views. On two occasions, at the request of the Committee, the DSS had undertaken further work and reported back to the Committee. The Minister had also displayed good participation and commitment. He wanted this to be placed on record.

Ms D Ntwanambi (ANC, Western Cape) said it was up to this Committee to say how matters should proceed.  She made further inaudible comments. The last word would of course come from members of the Committee.

Mr D Bloem (COPE, Free State) cautioned that the Committee should not depart from its objectives. He had made a comment that the Department appeared to be influencing the Committee. There had been hearings in the nine provinces, and it was up to this Committee to have consideration to all that input. If it departed from this procedure it would not be doing what it was supposed to do. If the Minister or the Department wanted to make input, they could, but the DSS should not attempt to lead the process.

Mr R Lees (DA, KwaZulu Natal) thought that this debate need not take place. His party had commented on what the Department’s role was in the past. This Committee must now deliberate and not be influenced unduly by the DSS. He thought there was a tendency. The role of the DSS was to advise the Committee on the legal aspects, not the substantive aspects of the Committee’s discussions, and that they have done.

The Chairperson thanked Members for their input. It was only fair that he should make reference again to Rule 160, which clarified the role of the Parliamentary Committee. He commented, however, that the responses on regulations and policies would surely have to come from the DSS. The job of the Members was to scrutinise legislation and ensure that it was in line with the Constitution. The Department was the correct entity to respond. Only after that response would Members be able to say that they agreed or not, and to ask for changes. For this Committee to take, from the start, an attitude that it was being “bulldozed” was self-defeating, and he cautioned against it. Internal Parliamentary processes should be respected.

Mr L Nzimande (ANC, KwaZulu Natal) suggested that Members should make it clear when they were conveying their own perceptions, and not attempt to ascribe their own views to the Committee. He thought that it must be clearly stated that whilst the DSS was participating in a process, the Committee "owned" the process. Any presentations or inputs by the Department were additional to what the Committee was doing, and were done to assist the Committee in processing applications.

The Chairperson, before proceeding further, wished to ask Members if the political parties had managed to engage with one another and reach any agreements.

Mr D Bloem (COPE) said that he had engaged with all parties, and they were agreed that there would not be mere rubber-stamping in this Committee.

Department of State Security responses: Protection of State Information Bill: continuation of comment on proposed amendments
Mr Dennis Dlomo, Acting Director General, Department of State Security, wanted to comment on three issues. He pointed out that the Minister of State Security had received a letter from the MEC of Cultural Affairs in the Western Cape, relating to perceived invalidity of certain clauses in the Bill, dealing with the issue of provincial archives. The other two issues were the definition of “for good cause shown”, in relation to the extension of application of the Bill to other state entities, and the third was the concern on the reversal of onus that had been raised during the public hearings.

He firstly addressed the issue of provincial archives, and said that the letter addressed to the Minister of State Security was advised of “unconstitutional and unlawful provisions” in the Bill and was requested to remove those offending provisions.

He read out the correspondence. This pointed out, firstly, that section 5 of Constitution set out the functional areas of exclusive provincial competence. One was "archives, other than other national archives'. He reminded Members that the Bill defined “archives” as “the national archives.. or any archives established in terms of a provincial law, and includes an archive kept by an organ of state”.

The main provision of the Bill dealing with archives provided that, subject to clause 17, on the date when the Act took effect, public records must be declassified in accordance with the Bill. Classified records held by any archives, which had been classified for less than 20 years, were subject to the provisions of the Bill.

The Western Cape Provincial Government (WCPG) was of the view that the province and provincial organs would be obliged to establish policies around alteration, destruction or loss. Those may not be inconsistent with national information prescribed. The Minister must, in terms of clause 54(1), within a reasonable period, make regulations, including regulations in relation to control measures required to effectively protect valuable information, including the responsibility of the organs of State to ensure that the information was adequately protected. The Minister was also empowered to make regulations around the protection, transfer and destruction of relevant information and make regulations dealing with national information security standards and procedures, under clause 54(4).

It was pointed out that the destruction of public records was subject to the National Archives and Records Services Act. In the Western Cape, by virtue of the exclusive legislative competence cast by the Constitution, the Provincial Archives and Records Services Act had been enacted in relation to public records held by this province. WCPG was therefore of the view that the Bill unlawfully encroached on the exclusive provincial competency for provincial archives. Most of the provisions in relation to archives had nothing to do with national security. Accordingly it was suggested that provincial archives were beyond the Minister's competence.

In addition, it was suggested that section 44(2) of the Constitution was not applicable, and the provisions of the Bill relating to provincial archives were not necessary, nor was it necessary for the Minister to regulate for minimum standards, nor to prevent unreasonable action by taken by the Province. Even if this was necessary, it was suggested that provisions dealing with provincial competence should be dealt with under section 76 of the Constitution. As they stood, the relevant provisions were beyond the scope of the national Parliament, to the extent that they applied to archives other than national archives. It was believed that the provisions were invalid, and should be removed or amended.

The WCPG warned that if the Bill was passed in its current form, and the President declined to refer this point to the National Assembly, or to the Constitutional Court, the provinces would approach the High Court for an order declaring these provisions unconstitutional.

The letter went on to detail various arguments in support of these points. Various sections of the Constitution were then set out, and reference was made to the case of Premier: Limpopo Province v Speaker, Limpopo Provincial Legislature, which described the legislative powers of provinces, and said that unless Parliament had expressly assigned a specific function to a provincial legislature, the latter was limited to functional areas set out in schedules 4 and 5, and were easily identifiable. The legislative powers of the Provinces were enumerated, but those of Parliament were not, and the contrast between the wide powers of the latter and the limited powers of the former were highlighted.

Various other cases were cited and it was reiterated that provincial archives were "exclusive provincial legislative competence". In a matter emanating in the Western Cape, the Constitutional Court had considered whether a certain proclamation dealt with a Schedule 6 matter, and here the Court considered Canadian precedents and decided that something wider than the direct legal effect of the proclamation could be examined.

It was then reiterated that most of the relevant provisions had nothing to do with national security. Provincial archives were within the exclusive provincial competence, and did not have to do with state information.

Mr Dlomo then furnished comment from Senior Counsel (who was not named) on the question of the Minister extending the operation of the Bill to departments other than those dealing with security and defence, “for good cause shown". Senior Counsel had advised that the Bill was primarily directed to information held by the security services and Parliamentary Committees that exercised oversight over those services. The Bill stated, in clause 3(2)(b) that its provisions could be made applicable to other organs of state, (after regulations were drawn to prescribe the manner in which that could happen) for “good cause shown”. However, this concept was not defined. The failure of the Bill, in its current form, to provide a definition or objective criteria, rendered the Bill vulnerable to attack, in the view of Senior Counsel. It was suggested that a number of criteria could apply when allowing a state organ to “opt in” to the Bill. That might include reviewing the information, and the effects of allowing the public to have access to information, the competence of officials to classify, declassify and reclassify the information. It was suggested therefore that wording be inserted to the effect that, in determining what constitutes “good cause”, regard may be had to one or more of the following:
a) the nature of the information handled by the organ of State, including national security, and its impact on internal relations and confidence in the state
b) the need for protection of the information
c) the desirability of conveying information to members of the public
d) the competence and ability of officials in organ of state to classify, declassify and reclassify information
e) whether limitation was necessary to protect national security

The final issu7e on which Mr Dlomo wished to comment related to the issue of reversal of onus, which it had been suggested was brought about by the words “or ought to have known” in relation to offences created in the Bill.

Senior Counsel suggested that the phrase “ought to have known" did not impose a reversal of onus. The State would still have to lead evidence and prove its case against an accused. In clause 51, it was specifically stated that no prosecution that carried a penalty of five years imprisonment or more could be instituted without written authority from the National Director of Public Prosecutions.

It was also important to note that this phrase was part of the national jurisprudence, was drawn from international best practice, and it appeared in the Financial Intelligence Centre Act (FICA), Prevention of Organised Crime Act (POCA) and Protection of Constitutional Democracies against Terrorist and Related Activities Act (the terrorism legislation). The notion referred to, in various cases (as quoted) was interpreted that in addition to circumstances where a person had actual knowledge, an obligation may be imposed where a mere suspicion was present. The ordinary meaning included the state of mind of someone who had an impression of something, without actually having adequate proof, or the notion that something was possible, although not proven in fact. South African courts had endorsed the interpretation used in English cases. The ordinary meaning referred to a state of conjecture or surmising. A court would have to draw inferences about a person's state of mind in relation to a particular set of circumstances. An element of objectivity was added by "ought reasonably to have known or suspected". The application of this phrase was explained in FICA, POCA and the terrorist legislation, and the accepted elements of the crime were summarised.

Discussion
Mr J Gunda (ID, Northern Cape) said that whilst he had heard the arguments, he had not yet had time t consider them.

Mr D Worth (DA, Free State) asked if the DSS had replied to the letter from the Western Cape Provincial Government.

The Chairperson also asked if that letter had been addressed to the DSS, or to the Committee.

Mr Dlomo said that a response had been prepared by the Minister, to whom that letter was addressed.

Mr A Matila (ANC, Gauteng) noted that the correct term was not "provincial Minister", and cautioned against using this tag.

Mr Worth also wanted to follow up on the opinion in relation to "good cause shown" and "ought reasonably to have known", asking that the opinion furnished to the DSS should be circulated to Members.

The Chairperson noted that clause by clause responses had been circulated in the last meeting (see attached document handed out on 12 June). If Members were satisfied with the process that the DSS had just concluded, it would then be up to Members to engage on the issues. He had the impression that although parties may have interacted, they had not engaged as fully as they could have done, because of the full Parliamentary programme. He therefore suggested that the DSS be thanked for these responses, as well as the opinion, and parties should independently reflect on the responses, so that in the next meeting they could decide how the issues should be taken forward. Another option might be for parties, in the next meeting, to engage again with the DSS.

Mr Gunda thought that the Committee should deal with the issues on its own.

Ms M Boroto (ANC, Mpumalanga) agreed, and thought it was not necessary to call the DSS back to the next meeting.

Mr Worth endorsed these views. He thought that there had been movement on some issues, and he wanted to try to reach further consensus between the parties.

Mr Bloem said that he had previously expressed the view that the process would not take too long. He agreed that the parties had moved closer to each other, and he said that every party had made proposals for amendments. He quoted Adv George Bizos, noting that the main criticisms of the Bill were the exclusion of the public defence clause, and the severe penalties. He endorsed this view. The ANC had come up with some proposals.

Mr Lees agreed that it was now necessary to conduct deliberations on amendments, which he suggested should take place in the public space of the Committee, so that the public was aware of where the Committee stood on each amendment. If it was possible for parties to reach agreement, that would be for the better.

Mr Nzimande said that he did not feel that a further presentation was required from the DSS. He would not like, however, to convey an impression that the DSS was not needed, or that the meeting would be closed. He stressed that consultation with parties would not deviate from the formal business of the Committee. Any party could approach another, outside the meeting.

Ms Ntwanambi agreed with these proposals but said that if the parties were to engage outside the meeting, then that would not have to involve the public. Obviously, public engagement would take place in the Committee meeting. She pleaded that this distinction be recognised.

The Chairperson summarised that the process of party-to-party engagement could continue, in an attempt of the parties to "find" each other. That was a positive development. He agreed with Mr Nzimande that Parliamentary meetings were open, and nobody could be excluded. It would be useful if the DSS could attend, to get the benefit of hearing the Members' thinking, and so the phrase "to the exclusion of the DSS" was not quite correct. The Committee would appreciate a presence from the DSS during deliberations, but did not expect any further feedback for the moment.

He pointed out that a summary of responses had been tabled, and he would like, as far as possible, to avoid new issues being raised. He would not like parties to remain with "hardened attitudes" and urged that consensus be sought, wherever possible.

The meeting was adjourned.