Protection of State Information Act: deliberation on outstanding issues

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

18 September 2012
Chairperson: Mr R Tau (ANC, Northern Cape)
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Meeting Summary

The Committee Secretariat had prepared a 2-page document summarising the issues that remained outstanding from the last meeting, and the ANC commenced the meeting by taking Members through those issues, and raising some further refinements to proposals made earlier. The reference to clause numbers followed the ANC’s Working Document 5, a revised version of the Bill, which was presented in the previous week. The ANC, despite having indicated in an earlier meeting that it would propose a new definition for espionage, had decided not to proceed with that. It had withdrawn its earlier proposal to use “means” instead of “includes” for the definition of national security, so that the definition stood as it was in the original Bill. The ANC proposed the deletion of clause 1(4), to remove any reference to this Bill taking precedence over the Promotion of Access to Information Act. It felt strongly that Cabinet should be covered in the applications clause 3, but had reworded its original proposal to read simply “Cabinet”(as a body). Clause 3(1) would be moved down to become a new clause 3(4). Similar changes to the wording of “Cabinet” would be made under clause 6(3). More refinements were proposed for clauses 14(6) to (9) to clarify which members of the security services would be permitted to classify in the field, and to emphasise that the head of the organ of state would retain accountability. It was proposed that clause 19(6) be deleted, and replaced with the content of what had formerly been in clause 19(2). The ANC had recognised that its original proposal for clause 30(3) was rather complex and had simplified the reference to the report and the submission date. Because of the decision not to submit a new definition for espionage, the ANC suggested that it was no longer necessary to “park” clauses 36 to 38. In relation to clause 43, the ANC did not agree with the proposals of COPE and the DA, and remained convinced that the strengthened wording in clauses 10, 43 and 47 covered the concerns about corruption not being revealed adequately. The ANC had earlier proposed that clause 49 be deleted, and it did not agree with COPE’s alternative wording for this clause, which in effect amounted to a public interest defence. In clause 54(1) and (2) the reference to the Minister “may” make regulations was changed to “must”. The ANC remained opposed to the DA’s proposal that information classified under old legislation would not have to be returned until it had been reviewed, and was insistent that any classified information in the wrong hands must be returned immediately, and that no exceptions should apply.

Other parties were then given the opportunity to comment, although all three opposition parties took exception to comments made by various ANC members that they regarded as demeaning to them personally, or as inconsistent with their right to raise questions of clarity. Two Members of the ANC were, however, at pains to explain that they had not intended to imply that the ANC was careless of their concerns, and assured Members that all concerns had been considered, but there were clearly some points on which the parties would have to agree to disagree. The Chairperson added that when the Department of State Security (DSS) attended the next meeting, the Members, and that Department, would be given a list of the issues on which parties had agreed (which would not be liable to further debate) and that parties would be able to present their viewpoints again, hear the comments of the DSS, and possibly be persuaded to change their opinion. The ID and COPE felt strongly that “Cabinet” should not be included in clause 3, whilst the DA reminded the meeting that it too had presented an alternative. COPE and the DA welcomed the removal of clause 1(4), and the amendment of clause 30(3).  Mr Lees said that the DA welcomed the deletion of clause 1(4), which indeed removed much of the difficulty from this Bill, as well as for the amendment regarding the reporting deadline in clause 30(3). The DA reiterated that it wanted to pursue its objections to the inclusion of valuable information and the references to provincial archives in the Bill, and the parties agreed to differ. Both COPE and the DA were opposed to the definition of national security now reading “national security includes…” and agreed to disagree with the ANC. COPE was satisfied that its concerns about classification authority lying only with senior members of the SAPS had been answered, and therefore would likely not pursue its call for the deletion of clauses 14(6) to (9). The DA wanted to pursue its call for inclusion of four additional subclauses under clause 15, and a new clause 44, in relation to retention or non-return of classified documents in certain circumstances, but the ANC was opposed to this. The DA reiterated its call that clause 25 should provide for remuneration decisions to be made by an independent panel and the DA and ANC agreed to disagree. The DA and COPE wished still to present their proposals on clauses 36 to 39, related to intent, and the DA persisted in its view that there was no need to insert minimum sentences in the Bill at all. COPE’s proposal that clause 40(1) refer to “with the intention to cause harm to national security” instead of “intentionally” was not supported by other parties. The ANC did not agree with COPE’s proposal for a new clause 49 that would set out a public interest defence.

The Committee noted that only one or two more meetings would be required to complete the Bill, but since the term ended in this week, the Committee would need to apply for an extension of its lifespan.

Meeting report

Protection of State Information Act: Matters standing over from previous meetings
Mr S Mazosiwe (ANC, Eastern Cape) reminded Members that the Committee had debated some issues at a previous meeting, but had agreed to flag some issues for further debate. He indicated that since that meeting, the ANC had given further consideration to some of the issues and whilst the ANC was not reneging on anything it had said earlier, it would be proposing some refinements.

A summary had been provided of outstanding matters by the Committee Secretariat (the 2-page document) and it was very useful. He would take Members through the issues summarised on that document (see attached document). [NOTE: this document makes reference to the revised numbering, as it appears on Working Document 5, not to the original numbering of the Bill]

In relation to the definitions, he reminded Members that during the last meeting, the ANC had indicated that it would be bringing forward a revised definition for espionage. However, having considered the matter further, the ANC now believed that no such definition was needed, as the issues were in fact covered in the main body of the Bill. It would merely insert, in the definitions section, a note that espionage would have the meaning assigned to it in section 36 of the Act.

In relation to the application clause, he reiterated that the ANC was proposing that the municipalities not be permitted to opt in to be covered by the Bill and to be permitted to classify.

Mr Mazosiwe then moved on to clause 1(4), which had been the subject of serious debate. The ANC had recognised that it was representing the majority of people in the country, and had given serious consideration to the concerns. The ANC was now proposing that clause 1(4) be deleted altogether, so that there would not be any reference to this Bill trumping the Promotion of Access to Information Act (PAIA). The operation of this Bill was already adequately covered under the clauses setting out General Principles.

Mr Mazosiwe reminded Members that in relation to clause 3, dealing with the application of the Act, the DA had queried why the ANC wanted a reference to members of Cabinet. The ANC felt strongly that Cabinet, as an entity, should be included, as it did deal with classified information, and wanted to retain a reference to “Cabinet” (a revision of the wording it had originally proposed).

The ANC wanted to make further proposals under clause 3(1), which would effectively be removed from its current position and become a new clause 3(4). The clause would therefore begin with the words “Classification, reclassification and declassification apply to Cabinet, the security services…” and the sub-clauses would be renumbered.

Mr T Chaane (ANC, North West) later commented that clause 6(3) would similarly have to be amended simply to read “Cabinet”(delete “members of”, and “Deputy Ministers and”).
Mr Mazosiwe said the ANC was not proposing any changes to what it had already suggested under clauses 4 and 5(1). In relation to clause 5(2) he proposed that the phrase “certain state information” be inserted so that it would be protected. In addition, there would be a reference here to Cabinet.

The ANC was not proposing any changes in Chapter 5.

Mr Mazosiwe pointed out that the ANC had made further proposals in respect of the (newly numbered) clauses 14(6) to (9), and he read these out. Subclause (6) stated that where a person was a member of the security services, as contemplated in Chapter 11 of the Constitution, but excluding an ordinary member of the South African Police Service (SAPS) and South African National Defence Force (SANDF), then that person who, by the nature of his or her work was delegated to deal with state information that may fall within the ambit of this Act, then that person must classify the information in accordance with the classification levels set out in section 13.

Mr Mazosiwe submitted that this would answer the concerns that ordinary members of the forces would be able to classify. Reference would also be made to establishment of a proper system that would be regulated.

A revised clause 14(7) would state that the member of the security services who was authorized must submit the classified state information to the head of the organ of state, for confirmation of the classification. The revised clause 14(8) stated that the state information would have to remain classified until the head of the organ of state decided otherwise, and the revised clause 14(9) clearly set out that the head of the organ of state retained accountability for any decision taken in terms of a delegated authority under this clause.

The Chairperson noted that some Members had queried what document Mr Mazosiwe was using. He noted that Mr Mazosiwe was making reference to Working Document 5.

Mr R Lees (DA, KwaZulu Natal) questioned this, since Mr Mazosiwe had said that he was using the 2-page document.

Mr T Chaane (ANC, North West) clarified that in fact Mr Mazosiwe was working from the original Bill, the ANC Working Document and the 2-page document, but was running through the chronological order of the latter document.

Mr Mazosiwe continued that the ANC had proposed that clause 19(2) be deleted, and its content moved down to become clause 19(6). Clause 19(3)(i) would commence with the words “Any contravention …”. The proposals made earlier for clause 19(6) would be replaced by the content of the former clause 19(2).

No further changes were proposed to clauses 20 to 29

In relation to clause 30 (3) the ANC had noted the confusion around the original proposal and had suggested that the wording now refer to “prepare a report for submission to the Classification Review Panel by 31 December in each year.”

The ANC was not making any new proposals on clauses 31 to 35.

At the last meeting, the ANC had suggested that the issues raised in relation to clause 36, which dealt with espionage, should be “parked” pending discussion on the ANC’s revised definition. Now that this definition was no longer being proposed (other than a referral to the clause) it was not necessary to deal with the issues any longer.

No new proposals were being made for clauses 37 to 42.

The ANC had considered the various proposals that were made by the other parties on clause 43. However the ANC remained convinced that its earlier proposals covered the issue adequately, and that nothing further was needed. He reminded Members that additional words, referring to contractors who may come into contact with classified information, had been added in to clause 54(l) and clauses 10, 43 and 47 covered other concerns.

Mr Mazosiwe reminded Members that the ANC had proposed the deletion of clause 49 (Prohibition of Disclosure of a State Security Matter) altogether. COPE, however, had made its own proposals for a revised clause 49, which essentially set out a public defence clause. The ANC did not intend to return to this issue as it felt that the Bill already provided adequate measures in cases where disclosure related to corruption or other unlawful actions, and the ANC was not open to further discussion on this point.

He reminded Members that the ANC’s proposals under clause 54(1) were not new amendments, and 54(l) sought to cover workers contracted to government departments who may stumble across certain information.

Mr T Chaane added that under clause 54(1) the word “may” should be changed to “must” to be consistent with the revised clause 54(2), and “may” should change to “must” to be consistent with 54(2)

Mr Chaane added that the DA had made proposals around information that had been classified under prior legislation. However, this Bill required that everyone must return classified information in his or her possession and the Minister would be making regulations within 12months on this issue. The ANC felt strongly that anyone in possession of any classified information, no matter how old it was, would have to follow the procedures in this Bill, and it was not open to any further discussion on this point.

Comments by other parties and deliberations
Mr J Gunda (ID, Northern Cape) said he was not yet convinced why Cabinet should be included. There was a host of dictionary definitions relating to “Cabinet” and he wondered why the whole of Cabinet was being included, instead of “the respective Minister”, which he would have thought more appropriate.

Mr Gunda said that whilst he was interested to see the new proposals made today, he was disturbed by the ANC’s comment that it was not prepared to debate issues further, which suggested that the ANC had made up its mind, and was not open to any further debate. He urged that Members should still be referring to “proposals” and not “amendments”.

Ms D Ntwanambi (ANC, Western Cape) raised a point of order. The parties were now at the stage where they had to convince other parties of their viewpoint, and Mr Gunda’s suggestions were not taking matters any further.

The Chairperson said that he had been about to ask if there were new issues that other parties, including the ID, wanted to raise, or points that they wished to argue.

Mr Chaane assured the meeting that the ANC had indeed applied its mind thoroughly to all concerns raised by all other parties. The ideas that were now tabled, in its view, addressed all concerns of parties and members of the public, and there could be further discussion on whether some of the points had gone far enough. Some of the concerns raised in the last meeting were now reflected as changes by the ANC and it would be happy to engage on other areas.

Mr D Bloem (COPE, Free State) agreed with Mr Gunda’s concerns about the inclusion of “Cabinet” in clause 3, and similarly wondered why the clause did not simply refer to the “Minister”.  He asked that the ANC come up with a definition of “Cabinet”.

The Chairperson said that the definition given to Cabinet in the Constitution would surely apply.

Mr Gunda raised his concerns that he, as a Member of the Committee, was perfectly entitled to seek clarity on any point if he was not satisfied, and there was nothing that obliged him to simply accept the views of other parties. He did not expect to be attacked and challenged by ANC Members whenever he raised a point, otherwise he would seriously question whether it was worthwhile for him to engage on the issues at all. The Constitutional definition of “Cabinet” did not address the concerns in relation to this Bill.

Mr Bloem said that COPE was firm in its resolve that “Minister” and not “Cabinet” be included in clause 3.

Mr Lees said that the DA welcomed the deletion of clause 1(4), which indeed removed much of the difficulty from this Bill, as well as for the amendment regarding the reporting deadline in clause 30(3).

Mr Lees commented that there was still a plethora of different documents on which different proposals appeared. He asked whether the Secretariat could prepare a list stating clearly which amendments were proposed and agreed to (quoting, if possible, the clause numbers in the Bill), and a list of amendments proposed by any of the parties on which there was not agreement, as well as an indication of proposals by the DA, ID and COPE. He pointed out that whilst the 2-page document did list the “parked” issues, it did not include the DA’s earlier concerns about the provincial archives and inclusion of valuable information in the Bill. Once that was done, the DA would be in a much better position to consider what it wanted to debate further, and what issues it might be prepared to withdraw.

Mr Lees went on to say that, in relation to Cabinet, the DA agreed with concerns of COPE, but for different reasons, and he asked if he should now proceed to present its views.

Ms Ntwanambi raised a point about the procedure. She was under the impression that the Committee would only be going back to issues that were “parked” and on other issues, the Committee must agree to disagree. She did not understand why there was so much confusion.

Ms Ntwanambi did not understand the COPE and ID motivation for naming only an individual Minister, since Cabinet acted as a body.

The Chairperson again summarised the process that the Committee was trying to follow. The Department of State Security (DSS) had given an initial briefing, but the Committee had then decided to engage with issues at Committee level, and not involve the DSS in those discussions, until it had reached a point where the DSS should be called in again, presented with the areas of agreement, those where it was agreed to disagree, and be given an opportunity to respond to the alternative proposals. At that point, the parties may be convinced by what the DSS said, and that could then lead to further amendments. He agreed with Mr Lees that a summary would be useful, and this could be presented to the DSS as well.

Mr Mazosiwe felt that great strides had been made, and suggested that there were no longer any new issues to debate.

Mr Chaane said that he had wanted to respond to the point raised by Mr Gunda, and was very critical of the fact that he had left the meeting. He noted that “Cabinet” was defined in the Constitution. The Secretary of Cabinet had the responsibility to classify, and there was nothing sinister or untoward about including Cabinet as having power to classify, since it was factually in place already. The COPE concerns would be covered by the fact that individual Cabinet Ministers would in any event be able to apply to opt in. A document that was classified would find its way to Cabinet. He suggested that the parties may have to agree to disagree on clause 3.

Mr Bloem agreed with Mr Mazosiwe that these were not new concerns. He said that this Bill was essentially a security Bill and “the Minister” meant the member of Cabinet designated to assume political responsibility for the control and direction of the Security Services. He would be worried about inclusion of other Ministers who had nothing to do with security issues.

Mr L Nzimande (ANC, KwaZulu Natal) disagreed that this Bill related only to security matters. The Bill was introducing systems of managing classification. It also included reference to “valuable information” which was not limited to security sectors. The DA did not agree that valuable information had a place in the Bill, and that would probably remain as a key point on which the ANC and DA must agree to differ. He noted that engagement of the parties outside formal meetings had taken place, and this was now a formal process in which some proposals had been put forward today by the ANC. Other parties may also have other proposals. He also added that in due course the State Law Advisors would have to prepare a C-list.

Mr Chaane explained to Mr Bloem that a reference to “the Minister” in the Bill meant the Minister of Security Services. Any other Minister (such as one whose Department had opted in) would be referred to as “a relevant Minister”.

The Chairperson noted that none of the parties had made a counter-proposal to what had been put forward by the ANC. He really did not understand why there were concerns about Cabinet, as expressed both in the Application and General Principle’s clauses (clauses 3 and 6).

Mr Bloem responded that it was unlikely that the parties would agree on this, and suggested that the Committee move on.

Mr Lees reverted to his previous statement and reminded the Committee that, in the previous week, he had made the point that the DA was still unhappy about, and wanted to make proposals on valuable information and provincial archives. It was suggested at that time that the issues be “parked”. They were not listed in the 2-page document.

Mr Mazosiwe said that this was because the concerns about valuable information were not new concerns. The ANC had reflected on the DA’s submission but did not agree with them. For this reason the ANC did not see its way clear to opening up the issues again, and that was why he had suggested that the ANC was at the point where it had made its submissions, commented on other parties’ submissions and felt that the matter could move forward. In short, the ANC was not convinced that the notion of “valuable information “ should be removed from the Bill.

Ms Ntwanambi added that the ANC had also thought that the issues of provincial and local archives were not relevant. The Bill dealt with protection of state information – and that was clearly a national issue.

Mr Bloem proposed that the Committee should go through the 2-page document, top to bottom, to hear what each of the parties had to say on the ANC’s latest proposals. He wanted to comment on some. Where there was agreement to disagree that should be noted.

The Chairperson said Mr Mazosiwe had started precisely this process. He asked Members if they agreed that the DSS should attend the next meeting, when the Committee could present it with a document summarising all the issues, for comment. COPE, or any other party, could raise its concerns that a point should be inserted, and the other parties could then debate it.

Mr D Worth (DA, Free State) was concerned that if the DSS was present, and expressed disagreement on the concessions made, this might take the Committee back.

The Chairperson said that if the Committee was agreed on certain issues, the DSS could not tell the Committee that it was wrong. However, on other issues where there was not yet agreement, it was possible that the response of the Department might sway the parties to take one or the other view. 

Mr Nzimande said that he was not sure whether other parties were ready to proceed. There might be agreement on very few issues.

Mr Chaane agreed with Mr Nzimande but did not agree with the Chairperson. The ANC had presented proposals that it felt addressed the concerns. However, if other parties did not agree with this, then they should engage with the ANC. The ANC was ready to clarify issues that Mr Lees had raised, and if, after clarification, the parties still did not agree on the points, that must simply be recorded. He felt that the parties were generally satisfied with the ANC’s proposals.

Mr Bloem asked pointedly how Mr Chaane knew that he was satisfied.

The Chairperson asked Mr Bloem if COPE wanted to raise any other issues. If so, he must set them out.

Mr Bloem replied that it was not only the ANC proposals that had to be debated, but also the alternative proposals of COPE and the DA.

Ms Ntwanambi said that COPE should then raise its concerns.

Mr Bloem took as the basis of his comment, the 2-page document, and said he would proceed through each of the paragraphs.  He asked, under paragraph 1.1, why the ANC was proposing a change of the definition of “national security” to read “national security includes… (instead of “means”).

Ms M Boroto (ANC, Mpumalanga) said that this had been raised before, and reiterated that this was in line with the Constitutional definition. She asked that the process not be abused.

The Chairperson said that this was not the first time that this point had been raised and debated, and it had previously been explained that national security was an ever-evolving concern. The DSS had suggested that the use of the word “means” would limit and restrict its operations of the DSS and make it unable to exercise its responsibilities or respond to new threats that may not have been specifically defined at the time of the drafting of the Bill.

Mr Chaane added that the word “includes” was in fact the original wording, so the ANC was no longer making any proposals to amend this definition.

Mr Lees said that it was in fact the DA who had suggested that the word “means” be used, and now that the ANC had withdrawn its similar suggestion, the DA proposal must be regarded as tabled. He thought that the use of the word “includes”, because it was not finite, was inappropriate in a definition. The DA wanted to pursue its proposal to use the word “means” in relation to this definition. The parties agreed to disagree.

The Chairperson noted the agreement of parties on paragraph 1.2 of the 2-page document (deletion of clause 1(4)).

Mr Bloem noted that the deletion of clause 1(4) was in fact a proposal from COPE.

In relation to clause 3 (paragraph 1.3 of the document), Mr Lees indicated that the DA did not accept the inclusion of Cabinet in the applications clause, but suggested the meeting must move on.

Mr Lees stated, in relation to paragraph 1.4, that the DA had motivated its proposal for changes to clauses 3(3) (originally clause 4 in the Bill). He had received this document only just before the meeting and he had not had a chance to look at it properly.

There were some interjections from ANC Members at this point, and Mr Lees complained that he felt constantly abused by certain Members of this Committee. Mr Mazosiwe had made it clear that the ANC had gone as far as it wanted to go, and Mr Chaane had offered to listen to what the other parties wished to say. All of his comments were being directed to specific points, and he would appreciate it if other Members would refrain from making personal remarks against him, or questioning when he had received the document.

Mr Lees continued that clause 3 dealt with some of the issues that would constitute “good cause”. He thought that some of the limitations expressed might occasion interpretation debates, but he was not raising objections to them at this stage.

Mr Mazosiwe wanted to hear what the DA’s problem with the formulation was, but subsequently noted that the DA had said it would not object.

Mr Bloem had no comment on this point.

Mr Lees said, in relation to paragraph 1.5, that the DA had proposed that the words “certain state information” rather than a broad “state information” should be used in clause 4(2).

Mr Chaane reminded him that during the oral submission, Mr Mazosiwe had refined the ANC’s proposals to “the protection of certain state information”.

Mr Lees agreed that this would then be covered.

Mr Lees then vehemently objected to another remark from an ANC Member that “they don’t listen”.

The Chairperson asked that this remark be withdrawn, and Ms Boroto withdrew it.

Mr Lees commented that the meeting had not dealt in full with the conditions for classification (clause 10). He wanted to confirm that the word “may” in the clause 10(3) should be changed to “must”.  He could not remember why the remainder of the clause was parked.

No comment was given in response by any other party.

Mr Lees also asked if all parties had agreed to replace the word “or” with “and” in clause 12(3), as it was not noted on the 2-page document, and the Chairperson confirmed that this decision had already been taken.

Mr Bloem said, in relation to paragraph 1.7, clauses 14(6) to (9), that COPE wanted these clauses deleted.

Mr Mazosiwe countered that the ANC wanted to stand by the revised version that he had read out earlier, and reiterated that the head of the organ of state was being held accountable. He repeated the new wording.

Mr Bloem asked for a written copy, so that he could compare the former and new wording. In relation to clause 15, a number of issues were outlined in paragraph 1.8 of the 2-page document. COPE had requested that the words “senior member of the South African police station” be specified, and he noted also the change of wording in clause 14(6) to specify the rank of SAPS members.

Mr Chaane commented that clause 16(2) would cover Cope’s concerns, and he asked that this be read also with the new proposals for clauses 14(6) to (9). The authority would not be delegated to anyone other than a member of SAPS “at a sufficiently senior level”.

Mr Lees commented, in relation to clause 15, that he had motivated for the inclusion of additional subclasses (1) to (4) to allow a person to retain a copy of classified information in certain circumstances. He asked if the ANC was rejecting this.

Mr Mazosiwe confirmed that the ANC did not agree with the DA’s proposals, believing that this would create undesirable loopholes, as no doubt that information would end up with the media. The ANC wanted to stand firm on the principle.

The Chairperson was interested to know why a person would be carrying around any classified state information, and asked the DA for further motivation.

Mr Lees said his motivation was similar to the reasons why the ANC had seen fit to amend clause 43, as the information should never in fact have been classified in the first place.

Mr Mazosiwe cautioned again that the Committee should not open up too many avenues as the Bill already contained sufficient mechanisms that would allow people to reveal corruption or criminality. There were fears that information could be used for espionage purposes. He was adamant that classified information should not be allowed to remain out in the public domain.

The Chairperson said that he was presuming that the parties agreed with the ANC’s proposals for clause 19(6). He said that Mr Lees had already commented that he was appreciative of the changes to time frames effected under clause 30.

Mr Bloem asked what “a reasonable time” would be.

Mr Mazosiwe answered that essentially this would be a time that was deemed sufficient for the DSS to deal with the matter, and it would be mindful of the need to deal with matters as quickly as possible. Each case would be considered on its merits.

Mr Gunda commented that the State Law Advisors had already said that a court would decide in each case what was “reasonable”. He was worried that DSS might argue that it could be reasonable to take a year to answer requests.

Mr Mazosiwe then stated that whilst he had answered Mr Bloom’s question in the abstract, it in fact no longer applied in the context of the Bill, given the ANC’s earlier proposal to delete clause 19(6).

Mr Lees said, in relation to paragraph 1.10, which dealt with clause 25 that he had nothing to add to the DA’s earlier proposal that the remuneration should be determined by an independent panel, with no undue pressure from the Minister.

The Chairperson noted the parties’ agreement to disagree on this point.

The Chairperson then said, in relation to clauses 36 to 39, referred to in paragraph 1.11, that the ANC was no longer making proposals on espionage.

Mr Lees reminded him that since there was now no longer any new definition for espionage, the DA’s concerns around the wording of clauses  36, 37 and 38 remained. The concerns had not related to the definition, but to the question of intent. DA and COPE had both made proposals, with the same motivation, but different wording, and the DA proposals remained on the table.

Mr Bloem also confirmed that COPE wished to proceed with its proposals on clauses 36 and 37.

Mr Chaane noted that some amendments on intent had already been made, including the removal of the phrase “or ought reasonably to have known” as well as amended wording relating to the threats. Minimum sentences would remain in relation to espionage only. If other parties still wanted to maintain their proposals, then the parties must agree to disagree.

Mr Lees asked where else in the Bill the references to the minimum sentences had been removed.

Mr Mazosiwe answered that although the individual clauses were not detailed in earlier proposals, the ANC had understood that the “package” of removal of “ought reasonably to have known” and minimum sentences had been accepted. A different approach was taken to espionage, because of the very serious nature of this offence. He was worried that the Committee, in raising these issues again, was moving backwards.

Mr Lees said that since the proposals were being discussed, clause by clause, it was quite reasonable of him to ask where wording had been removed.

Mr Chaane clarified that minimum sentences in fact related only to espionage. Other clauses had in fact only outlined maximum, and not minimum sentences. He added that clause 36(4) gave the court the discretion to impose a lesser sentence than the minimum, for compelling reasons, and whether or not there was a setting out, in the Bill, of the minimum sentences, the court still retained the ultimate discretion.

Mr Lees assumed, from what Mr Chaane had now said, that there were no other places in the Bill where minimum sentences were stated. He commented that Mr Chaane had argued the point around clause 36(4) well, and this in fact supported the DA’s point. If the Court would retain discretion, then he questioned what the point was of including the minimum sentence at all.

Mr Mazosiwe argued that this was not what Mr Chaane had said.

Mr Chaane added that subclause (4) set out the very specific circumstances in which the Court could depart from a minimum sentence; it was not an overriding discretion in all cases.

Mr Lees asked about the issue of intent. He asked if it was sufficiently clear that, for instance, a member of the media could not be prosecuted under this clause.

The Chairperson noted the parties’ agreement to disagree in relation to the three clauses.

The Chairperson noted that COPE had made proposals on the deletion of “intentionally” and its replacement with “with the intention to cause harm to national security” in clause 40(1), as outlined in paragraph 1.14. This was not supported by any other parties.

Mr Lees said, in relation to paragraph 1.15, clause 43(c), that the DA’s position remained unchanged, and that the DA had also proposed the insertion of a new clause 44, as set out in paragraph 1.16.

Mr Mazosiwe confirmed that the ANC did not agree with the proposal that anyone could retain classified documents, for similar reasons as already explained in answer to the DA’s proposals under clause 15.

Mr Bloem indicated that COPE had proposed a new clause 49, which was not listed in the 2-page document.

Mr Mazosiwe said that he had earlier made reference to the ANC’s proposal to delete clause 49, and COPE’s proposal for a revised clause 49 that would set out a public defence clause. The ANC had indicated that it did not agree.

Mr Lees said that every issue not yet dealt with had been incorporated, in writing, in documents tabled at some stage to this Committee. If the Committee wanted to, the DA could present all its proposals, although it had nothing new to propose at this stage.

Mr Bloem also confirmed that COPE had nothing new to propose. It was most insistent that a public defence clause must be included in the Bill.

Mr Gunda commented that he was disappointed in the degree of intolerance shown during this session, and questioned again if there was any point in Members bringing forward issues that the ANC had already indicated it would not accept.

Prince M Zulu (IFP, KwaZulu Natal) said that if the ANC was not prepared to listen to pleas for the public defence clause, there was little point in trying to debate it further.

Mr Mazosiwe said that the ANC was satisfied that it had gone quite far to address the issues, through a number of substantial proposals, and pleaded that the time had now come for the Committee to finalise the Bill.

Mr Worth asked if the Members would be provided with a final version.

The Chairperson noted that the State Law Advisors would advise the Committee on the processes, and the tagging of the Bill would also have an influence on that.

Mr Lees clarified that the Members wanted a list of amendments that the Committee had agreed to, and those not agreed to, in order to then proceed to the vote.

The Chairperson noted that the DSS would be invited to attend the next meeting, and the Committee would then present the issues on which there had, and had not been agreement, to the DSS. Where the parties were already agreed, there would be no further debate. Where there was not agreement, COPE, ID and the DA would still be given the opportunity to present their proposals, attempt to persuade the DSS of their validity, and hear the latter’s comment. If the Committee still could not reach agreement, it would have to vote. After that meeting, a new version of the Bill would be presented that incorporated everything agreed upon, and the Committee would go through it, clause by clause.

The Chairperson pointed out that the lifespan of the Committee was to the end of September. Unfortunately, this Committee term would end this Friday, and the last sitting of the NCOP was on Thursday 20 September. Members were expected to return to their constituencies for the next two weeks. The Committee probably only needed to hold two more meetings before it was ready to present the Bill to the House.

Mr Chaane asked why it was still necessary to engage with the DSS.

The Chairperson said that this followed the normal procedure. The Bill essentially came from that Department and the Committee needed to tell the Department what it wanted to see changed.

Mr Bloem thought that it would be necessary firstly to sit with the State Law Advisors to check on the wording and legality of the amendments, before speaking to the DSS.
Ms Ntwanambi noted that the final word would rest with the Committee, not the State Law Advisors or the DSS.

The Chairperson cut short the discussion on suitable dates, which had included a suggestion by Ms Ntwanambi that the meeting could even quorate in the absence of opposition parties, and said that the Chief Whip would be asked to try to resolve the matter.

The meeting was adjourned.


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