Protection of State Information Bill: further deliberations on ANC proposals

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

11 September 2012
Chairperson: Mr R Tau (ANC, North West)
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Meeting Summary

The Committee continued to work from the ANC’s document (Working Document 5), starting with deliberations on clause 19.  Members debated whether it would be more appropriate to mention a specific timeframe within which the head of the organ of State should deal with a matter, or merely to mention “a reasonable time” and decided to leave over the matter for further debate. Several instances were cited in Chapter 7 where the reference to “the National Assembly” was to be replaced with “Parliament”. In clause 23(e)(i) the ANC proposed insertion of the phrase “corruption, maladministration or”, and the “and” was replaced with “or” on line 40. In respect of clause 25 the DA maintained that the remuneration of the members of the Classification Review Panel (the Panel) should not be vested in the hands of the Minister of Finance and State Security, and that instead Parliament should decide on that remuneration. The ANC did not agree and thought that the current wording did not detract from the independent of the Panel. In clause 27(1), the ANC was no longer pursuing its recommendation to introduce a timeframe of 14 days, but the DA believed it should be inserted. The DA asked that the wording of clause 30, concerning timeframes, had to be clarified. In clause 31(1) the ANC proposed, and other parties accepted, the introduction of “state” before the word “information” and “classifying” before “organ of state”. NO amendments were proposed to chapter 9. The DA reiterated its proposals that valuable information be removed from the Bill, and it was noted that this would stand over for later debate. The ANC indicated that it had no proposals on clause 36, but COPE requested why the ANC was not pursuing its earlier suggestion to delete specific periods of sentences. The ANC stressed that it was proposing the removal of the words “or ought reasonably to have known” from all the offences clauses except that for espionage. The ANC proposed that, in clause 37, the qualifying phrase “to the detriment of the national security of the Republic” would be added to the end of subclauses (1) to (3). A long debate ensued around onus of proof and wording of offences clauses ensued, and it was decided that clauses 36 to 39 would be reconsidered once the ANC had tabled its further proposals for a new definition of espionage. The DA reiterated its position that it was opposed, in principle, to minimum sentences. The ANC expressed its dissatisfaction at media reports that suggested it was reneging on earlier concessions, and noted that the wording of its proposals was being refined as the process unfolded.

COPE proposed, in clause 40, that the word “intentionally” be replaced with “with the intention to cause harm to national security”. Other parties did not agree, as this changed the meaning of the clause, and placed emphasis on motive rather than the action. The State Law Advisors would be asked to brief the Committee on the implications. No amendments were proposed to clauses 41 and 42. A change was proposed to the heading of clause 43. The original subclause (b) was deleted and new subclauses (b) and (c) were inserted, with the ANC stressing that the inclusion of an exclusion where criminal activity was apparent was a major amendment. COPE proposed the replacement of “intentionally” with the phrase “and with the intention to cause harm to national security”. COPE did not believe that all whistleblowers and journalists would be protected. The DA said that these amendments represented a step forward but believed that the original wording of (b) should have been retained, as it was a vital part of the exemption. The matter stood aside for further debate. In Clause 47, the DA proposed the addition of four more paragraphs, similar to the suggestions it had raised in clause 15. The ANC had a proposal to insert a reference to the Prevention and Combating of Corrupt Activities Act under clause 47(1)(c)(i). In (iii) the words “the Agency” were being substituted for “agency”. All parties agreed to delete clause 49, but the DA and COPE made some further proposals, with COPE’s essentially being a public defence clause, and the DA’s by adding four new subparagraphs. Whilst the ANC thought the concerns were already covered, they would be prepared to debate the issues further. Other parties disagreed with COPE’s proposals to change the word “may” to “must” in clause 52. The DA finally proposed that documents classified prior to 1994 should be exempt from the Bill for two years, pending a review of their status. The matter stood over for further debate.

Meeting report

Protection of State Information Bill: ANC proposals from clause 14
The Chairperson noted that in the previous week, it was suggested that the Committee should reflect on the minutes of past meetings, but there was quite a procedure to have those before the Members.

He reminded Members that during the last week, Members had “parked” certain issues for discussion at a later stage. The meeting had adjourned when Members had debated as far as Chapter 5. He suggested that Members proceed to present issues from Chapter 6.

Chapter 6
Mr S Mazosiwe (ANC, Eastern Cape) asked that, once all the presentations had been made, the ANC be given an opportunity to address some of the matters that were “parked”.

Clauses 19(6)
Mr Mazosiwe noted that the phrase” within a reasonable time” was to be inserted. Originally there had been mention of 14 days, but the ANC considered this time frame too tight.

Mr R Lees (DA, KwaZulu Natal) asked if, in clause 19(3)(a)(i) the word “any” instead of “substantial” was being inserted

The Chairperson confirmed this.

Mr Lees noted that originally, the ANC had proposed the insertion of the words “or section 14 or 47 of this Act”. He asked why this no longer appeared.

Mr Mazosiwe said that the section reference, relating to section 14, would remain – originally it was a reference to section 14, but now it would change to section 10, in line with the amended wording. This was an omission.

Mr Lees noted, in respect of the time period, that the DA believed that the time period of 14 days should still remain.

The Chairperson asked, for purposes of clarity, that if a request for information was submitted a few hours prior to the Head of the Organ of State leaving the country for 10 days.

Mr Lees said that the responsibility to deal with this would no doubt be delegated to another person. If there was a view that 14 days was too short, the DA would consider another time period. The point was that it wanted a finite time, rather than “a reasonable time”.

The Chairperson thought that some flexibility might be required. He asked what period might be considered “unreasonable” by a court. He was raising this question in light of the fact that the Bill also allowed for an urgent application.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor (OCSLA), said that the court would take into account the individual circumstances, including the urgency of the matter. There was an obligation that the head of the organ of state must reply. It would be up to the court to decide what degree of urgency was attached.

She also agreed that the Head of an organ of State could delegate the classification or declassification to another senior person.

The Chairperson asked what would be the basis behind the 14 days.

Ms Booyse responded that the court would take into account whether 14 days would be reasonable in the circumstances, and the court would also take into account the circumstances under which the application was made. It would be considered on a reasonable period. The 14 days period was one cast on the head of the organ of state to grant declassification. This was a guideline stating that the response must be given – whether it was positive or negative – in 14 days.

Mr L Nzimande (ANC, KwaZulu Natal) agreed that a standard was needed.

Mr J Gunda (ID) did not think that it would do any harm to insert a reference to “30 days”.

Mr Mazosiwe said that the State Law Advisor’s (SLA’s) response did not change his mind. If somebody felt that the time taken was not reasonable, it was possible to approach the court, who would determine the reasonableness of the time. He did not want to put pressure on the system, and to allow flexibility. The processes of government should be allowed to run their course.

Mr Lees said that (5) dealt with courts, but (6) did not. The “reasonable time” would not apply to a court application. There was further confusion because time frames were set out in 4(a) and (b). He would be reluctant to force people to go to court to determine what a reasonable time was. He thought that the mention of the court in (6) was confusing the issue, as this subclause related to the head of the organ of states conducting a review.

Mr Gunda supported that view, and thought that it was important to bear in mind that people would not always have access to lawyers. He reiterated that he was in favour of “30 days” instead of “a reasonable time”.   


Ms M Boroto (ANC, Mpumalanga) said that there clearly was not agreement and suggested that the Committee move on.

Mr D Bloem (COPE, Free State) said that if necessary, parties could vote on it.

The Chairperson said that ideally this should not be the guiding principle.

Mr Gunda said that the question arose what would happen if the information was desperately important to the public; the public service would be likely to take its time. He pleaded that this Bill should be drawn in a way that made matters easier for the public, who were not usually able to go to court.

Mr Nzimande pointed out that the official who was supposed to do the work may be booked off work ill. He thought that further consideration needed to be given to this, to try to achieve the best position.

Mr Mazosiwe agreed that the issue would be “parked” for later deliberation.

Chapter 7
Clause 22
Mr Mazosiwe noted the substitution, in subclause (2), of the reference to “National Assembly” with “Parliament”. 

In subclause (3) there was again a reference to both the National Assembly and National Council of Provinces. This was amplifying what “Parliament” comprised. 

Clause 23(e)
Mr Mazosiwe noted the ANC’s proposal to insert the word “political” before “party”.

In (i) the words “corruption, maladministration or” would be inserted.

Mr D Worth (DA, Free State) asked what had happened to the DA’s proposal on (h) – the DA had asked that the word “and” be replaced with “or” at the end of the subclause.

Mr Lees also noted that another way to do this was merely to leave a semicolon and not have “and” or “or” on line 40.

The Chairperson asked what the implications were.

Mr Lees said that during the discussions with other political parties, it had been noted that this was a list of disqualification criteria, and the word  “or” did not appear earlier, so it seemed that the “and” was inserted instead of the semicolon. Nobody believed that it was the intention to insist that every criterion had to be met before somebody was disqualified.

Mr Mazosiwe agreed that this was discussed, and in relation to (h) there was agreement to remove the “and” and replace it with “or”.

Clause 24
Mr Mazosiwe noted ANC proposals in clause 24(1)(c). This followed the same principles. “National Assembly” was to be replaced with a reference to “Parliament”. In subclause (2) there was mention also of a majority vote from the National Council of Provinces (NCOP). In subclause (3)(a), the reference to “a committee of the National Assembly” was being substituted with a reference to the “Joint Standing Committee on Intelligence”. In subclause (3)(b) there was again a reference to “Parliament”.

Clause 25
Mr Lees noted that the DA had consistently maintained that the remuneration of the members of the Classification Review Panel (the Panel) should not be vested in the hands of the Minister of Finance and that Parliament should decide on that remuneration. He stressed that the Panel must be independent, and the involvement of the Minister detracted from that.

Mr Mazosiwe responded that the ANC was not unhappy with the current formulation. The Bill involved Parliament at several stages, including the making of regulations. He did not believe that it was reasonable to consider that the Panel could be influenced. The work of the Panel could not be overturned by anyone in a government department, and he thought it was sufficiently independent. A strong system of checks and balances was already n place and he did not think that the monetary aspects would detract.

Mr Nzimande was concerned that new regimes might be created if Parliament was to determine salaries. Although it recommended salaries for judges, there was a separate Act to deal with that.

Mr Lees said that there was confusion between remuneration and checks and balances. Money did influence people. Whilst he took Mr Nzimande’s point, it was possible to bring the determination in line with how the remuneration of judges and Parliamentarians was determined. However, he felt that the involvement of the Minister of State Security should not be involved. The Panel would, after all, be reviewing the decisions of that Minister’s departments, and it was possible to envisage the situation where the remuneration determination could be used as punishment or incentive.

The Chairperson made the point that not everyone was influenced by money, and asked that overly-broad statements be avoided. He noted the provisions of the Public Finance Management Act (PFMA), and said that if the argument was taken even further, and the Panel was required to seek donor funding, then that too could influence it. The Bill noted that there would be financial implications through the setting up of the Panel.

Mr Gunda asked (in Afrikaans) why the Panel’s salary should not be set by another body; he was concerned with the principle that the Minister was being given so many powers. 

Mr Nzimande commenced speaking in Zulu.

Mr Lees raised a point of order and said that whilst he understood Zulu, others did not, and regrettably no translation services were available.

Mr Nzimande took issue with this, making the point that Mr Gunda had spoken in Afrikaans, and no objection was raised. He repeated that the National Prosecuting Authority Act of 1998 gave the Minister of Justice and National Treasury the power to determine salaries of prosecutors. Parliament had a limited role only to “approve” determinations from the executive. The ANC believed that legislation should not be inconsistent, and there should not be uncertainty in law.

Mr T Chaane (ANC, North West) said that the South African Human Rights Commission, the Public Protector and a number of similar bodies had their remuneration determined by Ministers, in conjunction with the Minister of Finance. There was nothing inconsistent in this, and appealed to Mr Lees to accept this point.

Mr Mazosiwe said that the Panel was appointed by Parliament, and Parliament would be concerned to appoint members who had integrity. Whoever set the salary was presumed to be ethical. This was not about individuals, but systems, and Parliament already played a role. If there were suggestions that the Panel was being unduly influenced or making biased decisions, that could be reviewed and there were provisions for them to be removed.

Clause 27(1)
Mr Lees noted that the ANC had withdrawn the amendment that it had initially proposed, to insert a timeframe of 14 days, in clause 27(1). The DA believed that a time constraint should be inserted, and would be prepared to debate the correct period.

Clause 29
Mr Mazosiwe noted the substitution of “Parliament” for the “National Assembly”.

Clause 30
Mr Mazosiwe noted the ANC’s suggestion to insert the phrase “annually in line with the timeframes of financial reporting cycle of national government” in clause 30(3).

Mr Lees asked for an explanation of what this meant. National government financial years ran from April to March, and he wondered if it was not simpler simply to insert a date.

Mr Mazosiwe asked why this was seen as problematic.

The Chairperson clarified that departments were submitting their annual reports at the moment, and this required the reports to be submitted in those time frames.

Mr Lees said that he would prefer the words “in line with the timeframes for annual reports”. He did not think that the reference to “financial reporting cycle” was relevant.

Mr Chaane confirmed that the last step of the cycle related to the release of annual reports.

Chapter 8
Mr Mazosiwe noted the ANC’s proposal, in clause 31(1), that the word “state” would qualify the word “information”.

In clause 31(3) the ANC proposed the insertion of the words “classifying” (organ of state).

Mr Lees said that DA had no objections.

Chapter 8
No amendments were proposed by any parties.

Chapter 9
Clause 34
Mr Mazosiwe noted that in clause 34(1) the reference to the Promotion of Access to Information Act (PAIA) was being corrected and the words “or any other law” were used (replacing “and”).

Mr Monwabisi Nguqu, State Law Advisor, OCSLA, asked whether the State Law Advisors were expected simply to note everything that the Members had agreed upon. He pointed out that the amendment just outlined was not in line with the usual form and style of legislative drafting, and the PAIA was already defined earlier in the Bill. That also applied to what had been suggested for the Long Title and Preamble. That was the reason why the SLAs had not, in their working document, included all those changes.

Mr Bloem disagreed that there was anything objectionable to the ANC’s proposal for the reference to the PAIA.

Mr Nguqu noted that the top of page 7 of the Bill already contained a definition, commencing “Promotion of Access to Information Act means…”. He was worried about any inconsistency coming into the Bill.

Mr Mazosiwe said that the SLAs should be given authority to “tidy up” the wording.

Chapter 10
Mr Lees said that he was not quite sure how the Committee would be dealing with “valuable information”. He was not sure whether the Committee wanted him to mention every clause in which there was reference to this, or whether the Committee would simply accept the DA’s submission that valuable information would be removed, and come back to make a final decision on this point later.

The Chairperson reminded Members that a decision was taken at an earlier meeting to “park” the principle of whether or not valuable information should be included in the Bill, and he thought that this should remain for the moment.
*****
Chapter 11
Clause 37

Mr Mazosiwe reminded the Committee of the ANC’s position that the words “ought reasonably to have known” were to be removed from all clauses, except espionage. That would apply to subclauses (1), (2) and (3).

The ANC proposed the insertion, in clause 37(1) of the phrase “to the detriment of the national security of the Republic”. A similar clause would be added to the end of clauses (2) and (3).

Clause 36
Mr Bloem asked what had happened to the ANC’s original proposal on clause 36(1), namely to delete “not less than 15 years but not exceeding 25 years”.

The Chairperson reminded Mr Bloem that the ANC had indicated, last week, that whilst it agreed with the comments of other parties around the possible reversal of onus (the words “or ought reasonably to have known”) in respect of other offences, it was nonetheless of the view that the espionage offence clause should remain as originally drafted.

Mr Bloem noted COPE’s proposal, as reflected in an earlier submission, that the word “intentionally” should be replaced with “the intention to cause harm to national security” in clause 36(1)(b). The ANC had originally suggested – and COPE had agreed – that the sentences were too harsh, but it seemed now that there was nothing being said on that. That was why COPE had agreed to the deletion of “not less than 15 years” so that the clause would read “by imprisonment for a period not exceeding 25 years”.

Mr Mazosiwe indicated that in subsequent meetings, these points were discussed. Originally the ANC had decided to retain minimum sentences in respect of espionage only, in clause 36. In addition to that, it had said that the words “ought reasonably to have known” should be retained under this clause. However, the words “ought reasonably to have known” were to be removed from all other clauses. He reminded Mr Bloem that this clause was linked to a proposal to include a new definition of espionage. The ANC had refined its proposals after some further discussion. The definition of “espionage” would be circulated.

Mr Bloem noted this, but repeated that his was “to unlawfully and with the intention to cause harm to national security, make, communicate, or make available state information… “and to delete “or indirectly benefit” (a foreign state).

Mr Mazosiwe thought it would be useful to debate this issue in full once it had presented its new definition so that all matters could be discussed together. If this was discussed piecemeal, it would be difficult to find common ground.

Mr Lees wanted to put on record the fact that the DA was opposed to minimum sentences as a principle. The COPE wording dealt with the issue of intention, and the DA also had its own position on clause 36. It also wished to debate the question of intention in clauses 37 and 38, and he was not sure whether the ANC proposals would deal with that. If the definition of espionage dealt with the problems around intent, then the DA may agree, but if not, then the DA wanted to reserve its position.

Mr Mazosiwe said that his proposal really related to clause 36. He had thought that there was general agreement. The difficulty was that when there was agreement on broad principles, there still could be disagreement on the specific wording. The media had commented that the ANC had reneged on its position, although in fact it had not changed its position. The ANC found that frustrating.

The Chairperson asked for agreement from all parties to “park” clauses 36, 37 and 38 until the ANC’s proposals on espionage were produced. He had thought that certain basic agreements had been reached in the last week.

Mr Bloem asked that Members be given a chance to comment.

The Chairperson said that he had not commented on matters raised in the media, and requested all Members to refrain from engaging upon those “political side-shows”.

Mr Bloem did not think that it was correct for the ANC to be given the chance to speak but that other parties should not. He wanted a chance to speak.

The Chairperson said that he had been attempting to be fair to all parties. He asked if Mr Bloem was insinuating that he was denying Members the opportunity to speak.

The Chairperson said that he was asking Members now to come back to the Bill. The Members would be considering clauses 36 to 38 once other proposals were put. He pleaded with Members not to be sidetracked.

Mr Mazosiwe formally repeated his proposal that clause 36 to 38 be “parked” for the moment.

Mr Bloem asked whether the Chairperson wanted the COPE and DA proposals to be parked as well.

The Chairperson said that the Committee had noted the COPE proposals. The DA had put its views on record but said that it would wait for the ANC’s proposals, particularly around intention. That had then informed the Chairperson’s understanding that the Members would revert to discussing these clauses at a later stage. The impression that Mr Bloem was creating was that there should be engagement on the clauses now. He ruled that the clauses would not be discussed further, until the further proposals had been received from the ANC, at which point all the proposals would be discussed together.

 
Clause 39
Mr Mazosiwe noted the proposal to insert the words “or has reasonable grounds to believe or suspect” before “has committed”.

Mr Lees said that he did not want to open the debate again, but these were words that had originally been removed from the Bill by the ANC, and essentially the ANC was putting the words back. The DA had been in support of the removal of those words, and proposed that they should be deleted.

Mr Gunda agreed that DA, ANC, COPE and ID had originally agreed to delete he words “or has reasonable grounds to believe or suspect” and he asked why the ANC had now decided to bring the words back in.

Mr Nzimande asked that the opposition parties should indicate their views.

Mr Lees emphasised that this was exactly the problem when trying to find a way forward. The document prepared by the Secretariat, summarising all the amendments proposed, set out quite clearly the COPE and DA proposals. In an effort to find a way forward, the DA and COPE had agreed to follow the ANC’s original proposal, rather than arguing single words. His proposals had already been made and he thought there was no need to put it in again.

Mr Chaane thought that clause 39 should perhaps also be debated with clauses 37 and 38. He reminded Members of the clarification that was being given around when a person was considered to have “knowledge of a fact” in the new clauses 5 and 6

Clauses 40 to 42
No amendments were proposed by the ANC

Mr Bloem proposed an amendment to clause 40(1) to delete “intentionally” and replace with “with the intention to cause harm to national security”. 

Mr Chaane thought that this formulation was incorrect. It suggested that nobody should have access to classified information if s/he had the intention to cause harm. In fact, a person accessing classified information without proper authority would be committing an offence. The formulation placed too much emphasis on the intention to cause harm, and he asked for reconsideration.

Mr Bloem said that the current wording opened up loopholes.

The Chairperson asked if this clause could not be interpreted so that a person who knew the information was classified, would intercept the communication between authorised individuals, and sell it. That was exactly what happened with information peddling. The person selling the information knew the information was classified, had intentionally and unlawfully intercepted it, and had intentionally sold it, with the intention of being paid R2 million.

Mr Mazosiwe agreed that the new proposal was opening up another aspect. Mr Bloem’s proposal would require the prosecutors to prove the intention to cause harm. As it stood at the moment, the fact of having the information was sufficient to charge the individual wrongfully in possession of the information. The person’s intention to use that information in a certain way was not relevant; instead it was the intention to access the information that was important.

The Chairperson said that the whole question of intent was relevant to Chapter 11. He doubted that any criminal would ever admit to intent, and the prosecutors had to prove this. He suggested that this clause also stand over.

He asked the State Law Advisors, at that time, to assist the Committee with some advice on the implications of words around intent.

Mr Chaane thought that this was a slightly different matter to clauses 36 to 38. Mr Bloem was bringing in a new qualification – to cause harm. People would love to get their hands on classified documents, but only after they had seen the contents would they decide what to do with them – whether merely to read them, or whether to use them to cause harm, or to use them to make money. He stressed again that the reason for this clause was to punish a person wrongfully getting access to classified documents, and not to require that person to have a specific intention.

After a break, Mr Bloem suggested that the parties should “park” this issue as the parties had failed to reach agreement.

Clause 41and 42
No parties had any amendments to propose on this clause.

Clause 43
Mr Mazosiwe noted that the ANC proposed changes to the heading, by insertion of “and possession” of classified information. The words “or possession” would also be included in the fourth line of that clause.

The word “state” was to be inserted before “information”, and the phrase “as provided for in this Act” was to be inserted after “imprisonment”.

The original subclause (b) was deleted and a new proposal was made to insert:
”(b) is authority by an internal mechanism as may be provided for by the Minister in regulations under section 54(l); or
(c)reveals criminal activity, including criminal activity for ulterior purposes listed in section 10 (formerly 14) and 47 of this Act”

He noted that (c) was a major amendment.

Mr Bloem said that COPE also had a proposal on clause 43. It wanted to replace “intentionally” with the phrase “and with the intention to cause harm to national security”.

He noted that the ANC’s proposal meant that employees who disclosed information about their employers, namely whistleblowers in terms of the Protected Disclosures Act or Companies Act could still be liable to imprisonment.

Mr Lees noted that the original and current amendments by the ANC were a major step forward, but he was not sure why (b) had been removed and replaced. This formed an essentially part of the original breakthroughs proposed by the ANC.

Mr Mazosiwe said that certain positions had been revised. This had to do with classified information and it was necessary to remove any ambiguity in this clause. It was necessary to be very specific as to what Acts and clauses of this Bill would be included. If “any other law” was included, it was possible to have differing interpretations. He suggested that the current wording was wide enough to cover a number of people. The core concerns raised in the public hearings related to people not being allowed to reveal corruption or criminal activity. Anything that did reveal criminal activity could be exposed. This had gone a long way to alleviate the fears of the public, particularly if read with the new section 10.

Mr Lees reiterated that the DA felt that the wording of (b) must remain, although it could be amended as well. It was a vital part of this exemption.

The Chairperson asked “what other law” was contemplated, apart from the Protected Disclosures Act (PDA) or the Companies Act.

Mr Lees said that Prevention and Combating of Corrupt Activities Act of 2004 might be another example, but this clause could also refer to other legislation passed in the future.

The Chairperson said that the PDA would surely address the concerns that Mr Bloem had raised.

Mr Mazosiwe thought that clause 10 covered some of the issues. The ANC did not agree with Mr Lees, but would agree to “park” the issue.

Mr Bloem stressed that all others, including journalists, must be covered too.

Ms M Boroto raised a point of order that the media should not approach Committee Members during the meeting.

Ms Boroto said that Mr Chaane had already addressed the difficulties around the wording “with the intention to cause harm to national security”. That was entirely another matter of wrongful disclosure and possession. The intention related to the fact of disclosure, and the clause did not intend to cover the motive. If Mr Bloem’s suggestion was followed, the title of the clause would also have to be changed. She urged Mr Bloem to reconsider this wording.

Mr Gunda said that the impression was that the opposition parties always had to consider the ANC’s proposals yet the reverse did not apply.

Ms Boroto said that it was very important for the parties to keep reviewing their views. The latest amendments being proposed had resulted directly from discussions during meetings.

The Chairperson suggested that the power of persuasion should prevail. No party was precluded from trying to persuade other parties of their views and they should be permitted to pursue arguments in defence of their thinking.

Clauses 44 and 46
Mr Mazosiwe noted no changes under clauses 44 and 45

Clause 46
Mr Mazosiwe noted the ANC’s suggestion that the time period of imprisonment should be “two” instead of “three” years, in line with the Provincial Archives legislation.

Clause 47
Mr Mazosiwe noted the ANC’s proposal to insert a reference to the Prevention and Combating of Corrupt Activities Act under clause 47(1)(c)(i). In (iii) the words “the Agency” were being substituted for “agency”.

Mr Lees noted that the DA accepted these amendments. He was proposing further additional provisos to clause 44, in circumstances where the person in possession of the information had (a) within 14 days or receipt applied for declassification;  or (b) has applied to the declassification review panel; or (c) had applied to a court for urgent review of the classified records or part; or (d) where the information was improperly classified in terms of this Act.

Mr Mazosiwe said that the ANC could not agree to this. The key principle was that information improperly obtained must be returned to the proper authorities. If the information was allowed to remain in possession of an unauthorised person, this could open up many dangerous loopholes and precedents. It ran counter to clause 15 of the Bill, and this Bill would be weakened if information was allowed to be retained pending an application.

The Chairperson reminded Mr Gunda that similar issues had been raised under clause 15, and that too was being held over. The two clauses must be debated together.

Clauses 48, 50 and 51
Mr Mazosiwe noted no ANC amendments to clauses 48, 50 and 51

Clause 49
The ANC proposed, and other parties had agreed, to delete clause 49.

Mr Bloem noted that COPE supported the deletion of clause 49, but COPE wished to propose a new clause, as contained in his original submission.

Mr Mazosiwe noted that the new proposals by COPE were effectively a public defence clause, and the ANC had already indicated that whilst it would not support that, it had made amendments under clause 43 that addressed the concerns of the public about exposure of wrongdoing and corruption.
Mr Bloem agreed that this was so, but he still did not believe that his proposed new clause 49 would do anything other than strengthening the ANC amendments.

Mr Lees said that if the view was that a public defence clause was not required, then he would propose additions to clause 47(c), by adding four new subparagraphs. His proposed wording, for all of them, was phrased to cover actions that had occurred, were currently ongoing, or were likely to happen in the future. (v) would relate to concealment of a miscarriage of justice, (vi) related to concealment of a health or safety risk; (vii) related to damage to the environment and (viii) related to concealing of a public safety risk. All of them would strengthen the amendments made to clause 43 by the ANC. He thought that they were self-explanatory.

The Chairperson asked how different these proposals were from what was already under subparagraph (iii) - preventing embarrassment to an organisation or the Agency.

Mr Lees did not think they correlated.

Mr Mazosiwe thought the concerns were already covered, as the wording was actually wider than the specific areas that Mr Lees had mentioned. The wording, in clause 47(1)(c)(i), already covered unlawful act or omission, incompetence, inefficiency or administrative error”.  The Committee had already gone quite far to ensure that corrupt acts would be prevented. If there was a tender irregularity in the Defence Force or SAPS, the person revealing it would not be arrested. 

Mr Bloem said that this Bill was not only about corruption, but about the security of the state, and the corruption aspects should not be over-emphasised. He stressed that not everything could be brought down to corruption or maladministration only; there were also other aspects that could harm people.

Mr Chaane thought that Mr Bloem’s concerns may be able to be addressed in clause 43. As currently formulated (although he knew it had been parked), it sought to address those people, such as illiterate people, who may not be at fault.

Mr Mazosiwe said that perhaps the Committee also needed to revert to clause 10. That covered a whole range of issues, including the issues around the environment. A person attempting to classify wrongly would be liable to prosecution. There was reference to preventing embarrassment, delays and other matters.

The Chairperson asked if these were new amendments being proposed by the DA.

Mr Lees said that they were not, in the sense that they were incorporated in the original written proposal document from the DA, and were tabled.

Mr Mazosiwe said that clarity was needed on what was already listed under clause 10 and these new proposals. Clause 10 was even wider than what the DA was proposing, and also covered Mr Bloem’s concerns.

Mr Bloem said that Mr Chaane had made a good proposal to possibly incorporate some of the content of the COPE proposal into other clauses, and he suggested that the parties should sit down and try to thrash it out.

Mr Mazosiwe clarified that the ANC had not agreed to the DA’s proposals, but ANC would be prepared to look further at them. The matter would have to be debated more fully at a later stage.

Chapter 12
Mr Mazosiwe stated that the ANC had no proposals to make on clauses 52.

Mr Bloem noted that COPE had proposals for clause 52(6) to delete “may, if it consider it appropriate” and replace this with “must”. The effect would be that a court must seek written or oral submissions.

The Chairperson asked if this was not negating COPE’s earlier arguments to maintain respect for the independence of the judiciary, since it amounted to a direction to the court, in legislation. It may also be unconstitutional if it interfered with the independence of the judiciary.

Mr Bloem did not think that this would be the effect.

Mr Mazosiwe said the ANC would not support that proposal, for the very reasons stated by the Chairperson. The clause allowed for the court to take further steps, but the words “must” left the court with no discretion.

Mr Bloem wondered if it was not also contrary to judicial independence to attempt to instruct a magistrate what sentence to impose.

Ms Boroto raised a point that Mr Bloem appeared to be mixing two principles. The minimum sentences were very different from prescribing how the court must act.

The Chairperson noted that this was not the only place where there was a reference to “a court may…” and he wondered if Mr Bloem was suggesting that every one of these references must be changed to “must”. That would narrow the abilities of the court.

Mr Bloem said that clause 44, for instance, attempted to prescribe to the courts.

Mr Mazosiwe said that the ANC did not agree with COPE on this point, and would not think that it should be “parked” but should rather be dismissed outright. The ANC would have very serious problems with any changes to the wording as suggested by COPE.

Chapter 13
Clause 54
Mr Mazosiwe reminded the Committee that a new (l) had been discussed at length earlier. The new proposal was intended to cover a range of people who might come across classified information.

In (k) the definite article was to be inserted before word” Agency”.

Clauses 55 to 57
The ANC indicated that it had no problems with these clauses.

Memorandum
Mr Lees said the DA wanted to debate the position of people who might still be in possession of information that was classified under the prior legislation, saying that this possession would be automatically criminalised when the Bill came into force. The DA believed that any classification taking place prior to 1994 should be exempt from this Act, for a period of least two years, to allow a review of the classification to take place.

Mr Mazosiwe pointed out that the Bill currently provided for any classified information in the wrong hands to be returned. The ANC would be prepared to debate the matter further but did not at the moment agree with the DA’s view.

The Chairperson noted that the matter would be further debated, and countered some dissatisfaction made apparent by ANC Members by saying that the DA probably had strong arguments for proposing this, which the Committee needed to hear, in order to try to find a balance. Some of the public submissions had also raised concerns on this point.

Mr Nzimande raised a point of order, that this Bill was introducing a new regime and repealing the old order, and he believed that any information, no matter when it was classified, had to be dealt with in accordance with the Bill.

The Chairperson reiterated that the matter would stand over for further debate.

Future meetings
Mr Mazosiwe reminded the Committee that the new formulation for espionage would be submitted to the other political parties. He started to read out the long definition.

The Chairperson stopped him, and reminded him that every new proposal must be submitted formally to the other parties, in writing.

He added that all the areas that were “parked” for further debate should be summarised in a two or three page document, so that the Committee could move directly on them. When the parties agreed on the issues, or agreed to disagree, the SLAs and other legal advisors could be asked to assist with the final wording. The Committee would have to state its position clearly to the Department of State Security. The Committee would finally go through the Bill, clause by clause, and table its report.

The Chairperson reminded the Committee that it had thought that it would be ready with a report by 11 September, but this could not happen. The Bill would probably be finalised in the NA in the fourth term, and the Bill would only be able to leave Parliament towards the end of the year.

Ms Boroto said that the last time the Committee had requested a formal extension, it had hoped that the Bill would be passed by the end of September. She suggested that the Committee should, for the moment, continue with its work and more proposals as to time frames could be made at the appropriate time.

Mr Mazosiwe noted that another ANC document would be circulated, and asked that it be accepted as formally tabled.

The meeting was adjourned.

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