Protection of State Information Bill: State Law Advisors' briefing, proposals for clauses 1 to 14

Meeting report

Protection of State Information Bill (the Bill): Briefing by Office of Chief State Law Advisor
The Chairperson reminded Members that at the last meeting, it was agreed that the State Law Advisors should assist the Committee by suggesting new phrasing and formulation on some of the clauses, both those which were agreed upon by the parties, and those on which some options may need to be proposed. Furthermore, the State Law Advisors were asked to comment on certain questions raised by the Committee, specifically in relation to clause 3(2), where there were concerns with double-delegation, and on the questions around South African Police Services (SAPS) receiving classified documents.

Mr Monwabisi Nguqu, State Law Advisor, Office of the Chief State Law Advisor, confirmed that his office (OCSLA) had studied all documents, including the submission that Mr S Mazosiwe (ANC, Eastern Cape) had read out at the last meeting. Some of the initial concerns in the document of 21 May 2012 were overtaken by later submissions and deliberations. The document that OCSLA had prepared also gave an indication of the import of some of the proposals by Members. He emphasised that this Committee was merely proposing amendments to the Protection of State Information Bill (the Bill) that had been agreed to at the National Assembly. He outlined the procedures for section 75 bills at some length.

Mr S Mazosiwe (ANC, Eastern Cape) said he had thought the mandate was to look at the parties’ proposals, and report back. The Members knew what processes would be followed. He would have preferred to see the proposals simply being formulated in a manner that was legally sound and was acceptable to the Committee, as the Committee must then finalise them.

Ms M Boroto (ANC, Mpumalanga) agreed with those comments.

The Chairperson thanked OCSLA for its work. He noted that the title of its document was incorrect; it was not a “report” but a “working document”. From a procedural point of view, he suggested that this Committee adopt this document, as a reference point. The Committee should then go through the Bill, chapter by chapter and decide which issues to conclude, and which to set aside, or park, for later discussion.

Mr R Lees (DA, KwaZulu Natal) appreciated the work by OCSLA, but said that he had difficulties in picking up the differences between the original Bill and the amendments. He would have expected to see highlights. He asked for confirmation whether everything underlined was to be regarded as an addition, and how deletions were marked.

The Chairperson agreed that this was the difficulty, and that was why he had suggested that this document from OCSLA not be treated the same as a Bill, but as a working document, to be noted as tabled, and then used as a reference point.

Mr T Chaane (ANC, North West) noted the Chairperson’s opening remarks about the directive to OCSLA, and said that although OCSLA was not mandated to speak about the process, he thought it would be useful to get some comments from OCSLA on the work done so far, prior to moving to the chapter-by-chapter discussions.

Mr A Matila (ANC, Gauteng) said that the Committee was surely now at a stage where it was able to identify the points of commonality, and those that had to be debated further.

Mr D Bloem (COPE, Free State) said that the reason he had proposed an adjournment last week was that there were some issues that had not been addressed. OCSLA was asked to prepare a document. He commented that some of the proposals raised by other parties still required a response from the ANC.

The Chairperson agreed that OCSLA was asked to look at re-phrasing, where required. He also confirmed that there were also outstanding issues between the political parties. This document now produced by OCSLA was not to be seen as proposals for amendments, deletions or options; it was merely a reference report. He wanted a response on clause 3(2) and the possibility of double-delegation, and the question of the systems within the South African Police Service (SAPS).

The Chairperson wanted to explain the process to the public, and noted that the Committee meetings were an extension of the House of Parliament, and the Parliamentary rules must be respected.

Continuation of briefing by OCSLA
Mr Nguqu agreed that the OCSLA document was a working document, but also noted that the same formatting had been used as for bills,  so that words in square brackets were deleted, and those underlined were to be inserted. That reflected the issues on which there was agreement. Where there was no agreement between the parties, the issues had been highlighted in footnotes, with alternative proposals set out.

In relation to clause 1, he noted the insertions and deletions, and the additional definitions as proposed by Mr Mazosiwe in the previous week. OCSLA had also proposed some additional wording. Nothing had been changed in clause 2.

Mr Mazosiwe interjected to ask why so many words had been deleted from the Long Title, especially in paragraph 1. The OCSLA had in fact changed the ANC’s proposal.

Mr J Gunda (ID, Northern Cape) said that he was not happy with the working document. All parties needed to see what the ANC had said. However, this document did not isolate the ANC proposals, by name, and only the COPE and DA amendments were named.

Mr Matila said that the Chairperson had requested that the OCSLA should, independently, compile a document, to become a working document for the Committee.

The Chairperson interrupted at this point to rule on the issue. He asked that, to avoid confusion, Members should set the OCSLA document aside for the moment. He then asked OCSLA not to proceed further with the clauses, but instead to comment on the role of SAPS, in regard to handling of information. Whilst Members agreed that SAPS was defined there were concerns as to the appropriateness of SAPS being empowered to receive classified documents that third parties had in their possession, and whether these clauses in the Bill needed to be rephrased. The second issue on which comment was needed related to concerns of double-delegation, and an opinion was needed on clause 3(2). He commented that whilst the Committee appreciated the work done, they were finding the presentation difficult to follow.

Mr Nguqu confirmed that an opinion had been drafted, and he proceeded to summarise the issues that were set out in a written opinion (not circulated). In relation to powers of delegation, he outlined that the Constitutional Court had been called upon, in a case involving the Western Cape province, to decide upon the constitutionality of certain local government legislation. He summarised that the Constitutional Court had declared invalid a section in legislation that invested considerably legislative powers in the President, which circumvented section 61 of the Interim Constitution, which had dealt with how Parliament passed legislation. The Constitutional Court expressed the view that Parliament could not be expected to deal with all matters itself, and nothing prevented it from delegating some lawmaking powers to other bodies. However, there was a difference between delegating authority to make subordinate legislation, within the framework of a statute, and assigning plenary legislative power to another body. Section 239 of the Constitution said that national legislation would include subordinate legislation. The competence of Parliament could not be determined in the abstract, and whether the delegation was valid would depend on the Constitutional instrument in question, the powers of the legislator granted under that instrument, the nature and ambit of the purported delegation, the subject mater, the degree of delegation, control and supervision retained by the delegator (in this case, Parliament) over the delegate (the Minister), the position of the delegate and the time within which the power must be exercised. Where the Constitution explicitly provided that a matter must be dealt with in national legislation, it could not be delegated to a Cabinet Minister or Executive.

Section 198 of the Constitution dealt with the concept of national security, and the requirements and aims were also set out. It was noted that national security must be pursued in compliance with international law, and it was subject to the authority of Parliament, and the national Executive.

Mr Nguqu then dealt, at some length, with the composition of the national Executive, as referred to in section 198(d). Members of the Cabinet were accountable, collectively and individually to Parliament. Section 209 of the Constitution dealt with the establishment and control of the security services, not national security, and this required that the President oversee national security. He believed that the composition of the Cabinet was consistent with what was set out in clause 3(2). Parliament could not be expected to deal with all matters relating to national security, and it could delegate functions to the executive dealing with state security services.

Mr Nguqu said that the Constitution also dealt with the security services, of which SAPS former a part. The National Commissioner of Police was appointed by the President. The Bill defined that the classifying authority was the head of the organ of state. The National Commissioner of Police, in that capacity, would be the classifying authority. Procedures and policies would have to be adopted by each organ of State to deal with information in terms of this Bill.

Discussion
Mr Mazosiwe noted that the ANC had further considered the matter, and agreed now that SAPS could not be excluded from the process of dealing with classified information. However, the ANC wanted to call for a system to be developed to regulate how that information was to be handled, at the level of police stations. Clause 54(4) and (7) referred to regulations around the administrative issues in the Bill, and he noted that the Bill required that Parliament must approve those regulations. There were several concerns expressed at the public hearings as to whether personnel at ordinary or smaller police stations would be able to properly deal with classified information that had been wrongfully released and was now required to be handed to the police. The ANC felt that the hand-over should be made not at an ordinary police station level, but at a higher level.

Mr Lees commented that whilst OCSLA had expressed an opinion on the double-delegation contained in clause 3(2), its views were still only an opinion, not an official and final ruling. The DA believed that, whether or not it was constitutionally competent, the Minister of State Security should not be allowed to have the authority contained in clause 3(2), and believed that only Parliament should approve the opt-in.

Mr Lees said that the question asked by the Committee, in relation to SAPS, was not whether SAPS should be included as one of the agencies to whom the Bill applied, but at what level classification of documents should start and finish. The OCSLA opinion did not really deal with the issues.

In relation to the handing-in of classified documents, Mr Lees agreed that there should be a system for the control of documents in circumstances envisaged in clause 15. However, it was appropriate to set this out in regulations, and he agreed with Mr Mazosiwe that Parliament would have oversight over the regulatory process. However, the DA believed that there must be alternatives to documents having to be handed in, and was intending to propose that the return of the documents would not be necessary in circumstances where the holder of the document was making an application to the State Security Agency (SSA), or for de-classification, or an application to court. This was not a simple matter of constitutionality, or the procedures to be followed, but one of principle.

Mr Bloem read out the proposals of the ANC for the (newly-numbered) clause 14, which were that whilst the members of the SSA may classify documents, ordinary members of the SAPS should not have the power to classify. The Public Protector had raised the point that not every junior police should be given powers. This was to prevent the lower rankings classifying documents in order to conceal abuse of power at their stations. He noted that there was a proposal to delete subclauses (6) to (9).

In relation to the delegations under 3(2), he pointed out that the Legal Resources Centre had suggested that it would be unconstitutional, and contrary to the principle of accountability, if power to authorise an opt-in was to be given to a Minister. There was a query as to which Minister would be accountable, and the lines of accountability and oversight. If one responsible Minister was permitted to delegate to another, the fundamental principle of accountability was weakened, and the exercise of authority would be displaced from Parliament to the Minister who had delegated the power.

Mr Bloem said that whilst he agreed with what the ANC was trying to do, he had consistently urged that the correct manner be followed.

Mr Chaane asked for clarification on what OCSLA meant by Cabinet being “collectively and individually” accountable to Parliament. The legal opinion given related to the application of clause 3(2)(b), and there was nothing specific on the other clauses. He asked that the issues not be confused, and pointed out that Mr Bloem’s comments related to other issues that would be dealt with later. He asked that Members confine themselves to questions around responsibility for making laws. He also expressed concerns about Mr Lees’ remarks as they implied that the DA would not agree with something that was clearly constitutional. He asked that, rather than making general statements, any specific problems must be fully outlined.

The Chairperson agreed that clause 54 was specific in saying what the Minister had to do when drafting regulations, particularly in 54(1)(c) and 54(8). In terms of clause 54(8), any draft regulations had to be tabled, for approval by Parliament, at least 30 days before those regulations were published. OCSLA seemed to suggest that nothing in the Bill was strengthening the role of Parliament, yet that was exactly what this clause was doing. He added that, very recently, Parliament had agreed to set up a new committee to deal specifically with delegated legislation and its implementation, to avoid the situation where departments would table a bill, but would not update committees on regulations made thereafter, which might not even be properly in line with the main Act. The NCOP had, throughout the process, been attempting to ensure that the Bill was aligned with the Constitution, and he urged that sentiment should never be put before logic by any Members.

Mr Lees asked if the Chairperson was addressing him, in which case he wanted the right to reply.

The Chairperson said that he was not addressing Mr Lees. He did not want the Committee to be driven on the basis of sentiment. He was trying to stress that the Constitution should be the main guide when processing this legislation.

Mr Less said that if something happened to be Constitutional, but was not felt to be appropriate for this legislation, the DA had every right to oppose it. He resented the implications of the remarks by Mr Chaane and the Chairperson. He believed that the power to approve an opt-in should be a Parliamentary function, to avoid any Ministerial abuse. He asked that Members desist from making subjective comments about each other.

The Chairperson asked Members to desist from the temptation of raising questions about every small point, when it suited them, and urged that instead they should remain objective and focused on the end product.

Mr Nguqu said that there was no intention, in the OCSLA opinion, to suggest that Parliament had no role to play. Section 198 of the Constitution was unambiguous in its statement that national security was subject to the authority of Parliament and the national Executive as a whole. Clause 54(8) took this into account, as the national Executive and Parliament jointly shared that authority. The question of collective and individual responsibility was stated in the Constitution. Whatever powers were delegated to the Minister would finally be subject to the approval of Parliament. The Joint Standing Committee on Intelligence would also serve as a reference point.

Mr Nguqu commented on Mr Bloem’s remarks and said that section 198 of the Constitution specified that the national security fell under the responsibility of the national executive and Parliament. That then raised the question of who the national executive was. The President and Cabinet exercised their responsibilities, but were accountable to Parliament. Section 239 was also of relevance. He had given some examples of the Public Disclosures Act in his written opinion.

The Chairperson said that this Committee had wanted a simple answer to some simple questions. Whilst the opinion was not incorrect, it could have been put more clearly, to enable the Committee to understand the points.

Mr Matila asked whether, at this point, it was necessary for Members to start discussing the content of regulations, as he would prefer not to deal with those. He repeated that he had thought that the parties were largely in agreement on the Bill, but it was premature to debate regulatory issues.

Mr Lees said that he would not address questions of regulations at this point. However, he had wanted OCSLA to comment what regulations may be required, in terms of clause 3(2)(b), if the Minister were to be given the power to allow other organs of state to opt in. There was reference to “in the prescribed manner”. OCSLA seemed to be suggesting that before the Minister could allow an opt-in, Parliament would have had to have oversight over that process. He was not sure if this was correct.

Mr Mazosiwe commented that the issues seemed to have become confused. The ANC wanted to make another proposal, to reinforce the role of Parliament, and to bring more clarity on what needed to happen. That would be circulated to the other parties.

Mr Mazosiwe agreed with Mr Matila that this Committee should not attempt to prescribe, now, what should be in the regulations. Parliament would have plenty of time to deliberate on the regulations at a later stage. He urged the other parties to give careful consideration to the proposals to amplify “on good cause shown” as mentioned in clause 3(2).

Mr Chaane said that the main issue was whether the provisions of the Bill, as set out in the proposed revisions to clause 3(2), should apply to Cabinet, (the national Executive), the security services, oversight bodies, and may also be extended to other bodies, by the Minister of State Security, to any organ of the state. The concern about double delegation related not to whether the Minister of State Security was delegating to another Minister, but whether Parliament could delegate that authority to approve the opt-in to the Minister of State Security. There had been concerns that possible abuse of power could result from this Minister having unfettered powers to extend the provisions of the Bill to departments other than those specifically mentioned in the original clause 3(2)(a). The ANC’s new proposals for a new clause 3(3) narrowed down the issues, and Members must consider whether this was sufficient to ensure that the Minister’s powers were adequately constrained. If the new clause 3(3) was sufficient, then there was no problem. However, if the Committee felt that there was still too much room for the Minister to manoevre, then further limitations must be debated. He agreed that the purely administrative points would be covered in regulations.

The Chairperson emphasised that a head of an organ of state would have to apply to the Minister of State Security so the Minister would not make the decision on his or her own, and would, furthermore, have to follow the proper procedures when making the final decision.

Mr Matila said that the head of the organ of state must be involved in that process.

Mr Nguqu emphasised again that national security was subject to the authority of the national Executive, not the Minister of State Security. The power to classify would apply to the national executive, to the security services and oversight bodies. Any fear that the Minister would be given unfettered powers was not quite correct, because the national executive had ultimate responsibility for national security. It was not correct to assume, for instance, that an application would be made to the Minister of State Security for permission to declassify (sic).

Mr Lees thought Mr Chaane’s proposal was sensible, and perhaps conditions could be set to restrict the authority of the Minister. However, what he had quoted had come out of informal discussions, and was not tabled formally. Whilst he agreed with some of the proposals on clause 3(2), the DA did not agree with the addition of Cabinet.

Mr Lees said that OCSLA had not answered his question on what kind of oversight Parliament could have in relation to the opt-in. Nobody was suggesting that the Minister would have wholesale powers in respect of national security matters, but as the Bill stood, the Minister would have unfettered powers to allow the opt-in. It was accepted that a Minister would have to work within the confines of executive power and the Constitution. The DA still wanted to have a closer look at the ANC’s amendments, but he made the point that these had not been formally tabled as yet.

The Chairperson noted that point. He suggested that the Committee should now go through the Bill, chapter by chapter, isolating issues that still needed debate.

Mr Bloem asked who had proposed that Cabinet be included in clause 3(2), and why it was included.

The Chairperson asked that this point be discussed under the relevant chapter.

Chapter by chapter deliberations
Mr Bloem said that there were many questions that would arise from this document. Mr Mazosiwe himself had asked why so many of his own proposals had been changed, and he wanted to know who had put forward each proposal.

The Chairperson asked what document Mr Bloem was using.

Mr Bloem said he had received a “Working Draft 5” from the ANC.

Mr Mazosiwe confirmed that he had read out proposals, at the last meeting, and parts of that document from which he had been reading were now included in the OCSLA’s “Working Document”, but others were excluded, and he had asked why.

The Chairperson said that the difficulty was that the ANC’s Working Draft 5 had not been officially tabled.

Mr Mazosiwe asked that the ANC document be considered as tabled, and this was agreed to by all Members. It would in future be referred to as the “ANC document”. 

Mr Bloem also noted that a one-page document had just been circulated to Members by the ANC.

Mr Lees said that at the last meeting, he had made the point that the DA’s document with proposals was not formally tabled, and added that the DA and COPE proposals, made some time ago, should also be regarded, now, as formerly tabled. Other Members agreed.

The Chairperson suggested that Members use the ANC document, dated 4 September.

Chapter 1, Long Title and Preamble
Mr Mazosiwe summarised that the ANC had made proposals in relation to the definition of State information. Having done that, it had also stated that the ANC wanted to emphasise and reinforce the constitutional principles, and the fact that the Bill conformed to democratic principles. That was the reason behind the proposals in the Preamble. Section 32 of the Constitution dealt with how access to information could be obtained, but section 36 also permitted limits on the access to information. The ANC’s new wording sought to emphasise that balance.

Mr Bloem asked for clarity.

Mr Mazosiwe said that what he had just read out, for the Preamble, was essentially an update of what he had said in the previous week.

Mr Lees said that the DA would not object to the new amendments. However, he asked to be told whether all the amendments in the original document, as outlined last week, would remain, and, if not, that the meeting be told which ones had been removed or changed.

Members agreed to the reworded Preamble.

Ms Boroto asked if the new areas would be regarded as incorporated.

The Chairperson said that they would.

Mr Lees indicated that the problem was that many parts of the original proposals were also included in the document prepared by OCSLA.

The Chairperson asked that the ANC must indicate new insertions and deletions from the previous proposals.

Contents clause
Mr Mazosiwe said that, under the contents for Chapter 5, new words of “system of “and “reclassification” had been included in the title.

Mr Bloem asked the reasons behind this.

Mr Mazosiwe responded that this Chapter basically dealt with administrative procedures within a whole classification system. He believed that the words must be included, to set out the processes.

Ms Boroto added that the issues in this chapter also referred to reclassification, and it was therefore necessary to incorporate this reference also in the title to the chapter.

Mr Lees said that headings did not constitute part of the final Act, for interpretation purposes. He thought that a system referred more to the regulations, but he would not object to this.

Chapter 1
Mr Mazosiwe said that the definitions had been set out in the previous meeting.

In the definition of “classified state information” there was insertion of the phrase “in terms of this Act”.

Mr Lees noted that the ANC had also previously proposed the deletion of subparagraph (b) of the definition for “head of an organ of state”. He asked if the ANC was still pursuing this.

The Chairperson said that the Committee had already agreed to remove this paragraph, which was the reason it no longer appeared as a proposal.

Mr Bloem pointed out that in that case (c) must move up and be renumbered as (b).

Members agreed to this.

Mr Mazosiwe said that the ANC wanted to include a definition for “espionage”.

Mr Lees raised a point of order, that the Committee had reverted to making oral proposals, and that was compounding the difficulties.

The Chairperson asked that if this was included in a document, in which case it should be formally tabled.

In respect of the definition of “national security”, Mr Mazosiwe said that initially the ANC had wanted to replace “includes” with “means”, but, following the presentation from the Department of State Security, it had decided to revert back to “includes”.

Mr Lees and Mr Bloem felt strongly that “means”, and not “includes”, must be used.

Mr Mazosiwe reminded them that the Department of State Security had said that this definition was derived from the wording of the Constitution, and the ANC had been persuaded on this point.

Mr Mazosiwe outlined the changes that were being proposed to the definition of “sensitive state information” and “state security matter”, to include “includes any matters that have been classified in terms of this Act”.

Mr Lees did not agree with the reversion to the word “includes” and maintained that the definition should read “means”.

The Chairperson pointed out that there was no longer any need to have a definition for “state security matter” because the meeting had agreed to delete clause 49, which was the clause essentially dealing with state security matters.

Mr Lees cautioned that an electronic search of the document should be made to isolate any other instances where the phrase “state security matter” appeared.

Mr Mazosiwe said that he would run this check.

Mr Mazosiwe noted that a proposal to expand the definition of ”valuable information” by including “infringe on the constitutional rights of (the public)  and by deleting the words “to deny them of a service or benefit to which they are entitled”.

Mr Lees said that he did not see any immediate problems with this but would need to put the matter to the DA, and reserved the right to revert with comment.

Clause 1(4)
Mr Bloem asked for clarity on the proposals of the ANC for clause 1(4). It had suggested that the words “notwithstanding section 5 of the Promotion of Access to Information Act” be deleted.

Mr Mazosiwe said that the Promotion of Access to Information Act (PAIA) dealt with access to information. This Bill dealt with classified state information and valuable information. He said that there was no way in which this Bill could exclude the normal operations of PAIA, but the re-wording emphasised that everything dealing with classified state information would fall under this Bill, because it went beyond what PAIA provided.

Mr Bloem said that the objects of the PAIA were to give effect to the Constitutional rights of access to information, including state information. He also stressed the portions relating to the balancing of rights.

Mr Mazosiwe said that he was pleased to hear the emphasis on achieving a balance. Section 36 of the Constitution already provided for limitations on access to information, and this was why this Bill was being discussed today. Access to information was important to a democracy. That was why the Preamble had been further reinforced, to include other principles and values, and to emphasise the balance between the necessity for confidentiality in some areas against access in others. Parliament had to deal with any excesses that may occur.

Mr Gunda understood Mr Mazosiwe’s point, but did not agree with the changes. He suggested that this issue must be flagged for later discussion. The ID wanted to obtain a legal opinion on this point.

Mr Lees said the DA believed that clause 1(4) should be removed altogether. The Bill must sit alongside PAIA, and this clause was not necessary.

The Chairperson reminded the Members about a recent case involving the disclosure of information from the Vatican, which caused serious problems. He thought it interesting that the church could have classified information.

New clauses 1(5) and 1(6)
The Chairperson He thought that Members had agreed to the proposals for new clauses 1(5) and 1(6).

Mr Lees took issue with this, and said that this was presented in oral form only, at the last meeting, and he had said that he wanted to look at the written version, but had certainly not agreed to it.

Mr Mazosiwe cautioned that the Members needed to be more clear on what they wanted. He agreed that the DA must still revert with a response on clauses 1(5) and (6). If comment was needed from the State Law Advisors, this must also be stated specifically.

Mr Chaane suggested that these new clauses should be regarded as tabled, and the Committee should move on.

Mr Lees also wanted to remind Members that, at the moment, the Committee was only considering the ANC’s and issues were not only be flagged so that the DA could look at the written proposals. It was quite likely that on those issues the DA and COPE would have alternative proposals to make.

Clause 2
The ANC had not made proposals on clause 2.

Clauses 3(1) and 3(2)
Mr Mazosiwe highlighted the exclusion of “valuable” and insertion of “state“ (information) in the first sentence.

He noted that clause 3(2)(b) dealt with the opt-in. The ANC had already set out that it wanted to exclude municipalities from the application of the Act.

Mr Lees had a problem with this wording. He thought that clause 3(1) had been written specifically to deal with valuable information, rather than with all “state” information. State information included classified information in the possession of the state security institutions, whereas valuable information was held by all departments and organs of state. The deletion of “valuable” and insertion of “state” implied that all organs of state would now be able to classify information, and he did not think that this was what the ANC intended.

The Chairperson thought that clause 3(1) was intended to apply to organs of state who had opted in.

Mr Lees was not sure how it could be corrected, but said it did not read properly. His initial reaction, particularly in view of the DA’s view that valuable information should not be dealt with at all in this Bill, was that clause 3(1) should be deleted. However, the ANC clearly did not agree on this point, and if valuable information was to be retained, then OCSLA needed to look at the wording of the clause.

Mr Mazosiwe said that 3(1) now covered all state information. He was not sure why there should be a contradiction, pointing out that this clause related to the application of the Bill.

The Chairperson asked OCSLA to consider the proposed wording and revert to the Committee. Depending on its response, it was possible that clause 3(2) may also require re-phrasing.

Mr Bloem was not in agreement with the inclusion of “Cabinet”, and pointed out that Cabinet too might be susceptible to classifying documents incorrectly.

Mr Lees commented that his own personal view (although he did not have a mandate from his party on this) was that inclusion of “the Cabinet” could automatically give opt-in to all departments, if Ministers could classify.

The Chairperson noted that currently, Cabinet documents were not open. He suggested that a distinction must be drawn between “Cabinet” as a body, and “Cabinet documents”.

Mr Mazosiwe thought that the reluctance to include Cabinet was an over-reaction. Cabinet should be able to classify information, as this was done elsewhere in the world. There had been substantial amendments under clause 43, and (renumbered) clause 10 also contained strong provisions around classifying information, with consequences for wrong classification. It was the responsibility of all South Africans to take care of State matters.

Mr Lees said that his party wanted to look carefully at the wording. Cabinet documents were already covered by another Act of Parliament, and there was not only no need to include them in this Bill, but also a danger of opening the Bill too wide.

Mr Bloem suggested that perhaps “Cabinet” should be defined. He reiterated that a particular document might contain information about a fraud,

The Chairperson thought that line functions and ministries were being confused with Cabinet. Classified information was classified to protect the country.

Mr Mazosiwe thought that it would be useful for parties to provide some reasons when they took issue with the proposals. He had made reference to international standards and practices. It would result in total anarchy if Cabinet documents were open to public scrutiny. He cited the Wiki-leaks case, which created numerous problems for the foreign affairs sector in the USA.

Mr Bloem countered that some Ministers had been sacked only because of information that was released, and he was very worried that the inclusion of “Cabinet” could protect ministers who were acting wrongly.

The Chairperson noted that there would be points on which Members must simply agree to disagree.

Mr Lees suggested that a possible way around this might be to define more clearly what the “Cabinet” classification would involve – for instance, meetings, discussions, papers. He suggested that the issue be flagged to allow the parties to consider and to discuss possible wording that would be acceptable to all.

The Chairperson emphasised that Cabinet documents must be protected against unlawful disclosure, in light of the importance of the information to the country’s wellbeing.

Mr Chaane thought that Cabinet and departments were being confused. The Cabinet could never be akin to a department, and no Minister would ever be responsible for classifying information. The Cabinet Secretary would be responsible for information. Any corruption in a separate department would be reported, by whistleblowers, and it was in this way that corrupt ministers would have action taken against them.

New Clause 3(3)
Mr Mazosiwe then outlined the new proposals for clause 3(3).

Mr Lees said that the DA wanted to check these, and reserved its rights to comment later.

Chapter 2
Clauses 4 and 5
Mr Mazosiwe noted the proposals to delete clauses 4 and 5. This would involve re-numbering. From this point on, he would refer to the revised clause numbers

Clause 4 (formerly 6)
Mr Mazosiwe noted the insertion of the heading “General principles of State Information”.

In line 46 (on his document), under subclause (g), the words “some confidentiality and secrecy” were deleted and the words “the protection and classification of state information is” were inserted

The ANC was also proposing amendments under clause 4(2). In clause 4(3) the sentence started with “state information” and continued by inserting a new phrase “ members of Cabinet Ministers, Deputy Ministers and“.

Mr Bloem was concerned about the reference to Cabinet in this clause.

Mr Lees commented that in subclause (g) the word “certain” was originally used, but was now left out. He preferred the old wording. The same also applied to the new clause 4(2), where “certain state information” should be mentioned. He was not sure, as a matter of principle, why in clause 4(3), Cabinet Ministers and Deputy Ministers should have access to all this information, and suggested that a possible compromise, on which he wanted to ponder more, might be that the Standing Committee on Intelligence might be the appropriate body.

The Chairperson wondered whether (g) was not more consistent with the definition of “state information”. If there was to be reference to “certain state information” another definition might be needed.

Mr Lees responded that not all state information would be classified. The current reading implied that the protection and classification of all state information was always vital to save lives, and that was not correct; only certain information had this status.

Mr Bloem agreed with Mr Lees’ interpretation.

Mr Gunda did not think that there were changes to the meaning of state information, but merely an emphasis that only certain of that state information could be regarded as vital.

Chapters 3 and 4
Mr Mazosiwe said that the ANC was not proposing changes in Chapters 3 and 4

Chapter 5
Mr Mazosiwe reiterated that the words “system of” were proposed, to clarify that this related to a system of classification. The headings “Part A” and “Part B” would be removed.

Clause 10: Conditions for classification
Mr Mazosiwe said that the content of the renumbered and revised clause 10 had originally appeared in clause 14.

Mr Lees noted that the DA wanted to make other amendments on this clause and asked if he should make them now.

Mr Mazosiwe thought that what he was presenting had been largely accepted by the other parties, and asked how long it would take to set those out.

Mr Lees said that this was not a proposal to change the ANC’s proposals, but in fact was a completely separate principle. The DA was proposing a replacement of the word “may”, as it applied to the subclauses (a) to (f) with “must” to emphasise that these were matters that the classifier had to take into account.

Mr Gunda pointed out that the ANC proposal contained two references to “may” in the same sentence, and agreed that “must” would make it more clear.

Mr Chaane suggested the issue be flagged.

Clause 13 Classification levels
Mr Mazosiwe said that the ANC was proposing, in relation to the definition of top secret, that the words “irreparable or exceptionally grave harm” were to be included.

Mr Lees said that the DA believed that the word “and” should replace “or” so that both considerations should apply.

Clause 14: Authority to classify state information
Mr Mazosiwe said that, after the words “information set out in section ..” the words “or other provisions of this Act” were to be inserted. He said that during discussions between the parties, it had been agreed that subclauses (6) to (9) be deleted.

The words “as confidential” should be inserted in subclause (3).

The Chairperson asked why this wording appeared in a clause that was referring to authority to classify, as it had to do with classification levels.

Mr Lees clarified that this clause was dealing with a head of an organ of state who had the authority to classify. Clause 3 was the opt-in clause. This clause did not deal with the classification levels as such, but merely said that the head of the organ of state had to use the classification levels as set out in the new clause 12.

Mr Mazosiwe also noted that the numbering would still need to be corrected.

Mr Chaane wanted to deal with the comment that subclauses (6) to (9) be deleted, and urged that if this was to be done, then a new clause must be inserted to amplify the fact that lower-ranking or ordinary members of SAPS should not be allowed to classify. These would still be formally proposed by the ANC. He asked that the Committee not yet approve the deletion of subclauses (6) to (9). 

New Clause 15: report and return of classified records 
Mr Mazosiwe outlined the changes, in line 6, saying that the ANC had proposed that a person who was in possession of a document that had been unlawfully communicated should be required to return that document to “a member of the SAPS, the Agency or the relevant classifying organ of state”

Mr Bloem said that it must be clear, in relation to the SAPS, who could receive the document. He suggested use of the phrase “any senior ranking member of the SAPS”.

The Chairperson stressed that part of the regulations must include the process of receipt, handling and processing of the information in terms of this clause. Rather than specifying a ranking in the clause, he thought that “in the prescribed manner” should be inserted.

Mr Lees agreed that the regulations must take account of Mr Bloem’s concerns, and give a surety that the matters would be properly handled once the document was returned. However, there were some practical problems, and a person should not run the risk of being arrested whilst driving from one place to another to find a sufficiently high ranking official. 

The Chairperson conceded that there could be problems if the stations were manned only by reservists, or by junior and inexperienced personnel, but the regulations must deal with this.

Mr Bloem still wanted to propose formally that the qualifying adjective “senior” must be added before “member of the SAPS” proposed, as well as “in the prescribed  manner”. The regulations would deal with the specifics but a senior official must receive the returned document.

The Chairperson made the point that “in a prescribed manner” emphasised that systems and training must be put in place.

Ms Boroto understood the concerns of Mr Bloem, but agreed with the Chairperson and Mr Lees that some stations may not have as “senior” police officers as others. Possibly the regulations could address security clearances for those who were to handle the documents.

Mr Lees said that the DA was proposing that new subclauses (1) to (4) be added, which had already been tabled. These essentially set out exceptions to the rule that a document would have to be returned. The DA’s proposal under (1) would refer to a case where the person in possession of the document had applied for declassification, as contemplated. In terms of this proposal, a person in possession of a classified document had the option to return it to the SAPS. However, it must be understood that clearly the person would read that document, and if he then decided that the document should be declassified, he should apply for the declassification, and keep the document, as he would have to present it as part of his application.

The same motivation would apply to the proposals for new subclauses (2), (3) and (4). These related to circumstances where a person applied to the Classification Review Panel, or to the Court for an urgent review of the classification, or where the document was improperly classified. If a person opted to take any of the courses of action set out in (1) to (4), or to return the document to SAPS, he should not be prosecuted. Mr Lees stressed that these amendments would not give that person any right to publish the document, only to use the document in support of his application.

Mr Mazosiwe responded that the Committee should be careful not to create loopholes; he feared that this proposal would open the Bill too wide, and run the risk that classified documents would not be re-secured as they should be. Circumspection was needed. Clause 43 dealt with the concerns around corruption and criminal activity, and he did not think that anything further was required.

Mr Chaane supported Mr Mazosiwe, and said that if a person was denied access to a document, he could either approach the Court or wait for the declassification. This principle must be extended to ensure the re-securing of improperly released classified documents.

The Chairperson drew a parallel between a person finding a classified document, and finding a batch of drugs. He noted that the person could not smoke the drugs or keep the drugs, and then tell the authorities, and so a person could not keep the document and then tell the authorities. If Mr Lees’ suggestion was accepted, there would have to be further regulations around how the document was to be handled in the period between making the application and receiving the answer.

Mr Lees said that mechanisms could be drawn to deal with that process, and he was not suggesting that they be built into the Bill.

Mr Lees also raised a concern about the current lack of linkage between clause 15 and clause 43, and proposed that clause 15 should include a sentence “except in terms of clause 43”.

The meeting was adjourned to 16:00 on Tuesday 11 September.