The Committee deliberated on the Protection of State Information Bill that was referred back to the National Assembly by the President who had reservations about clauses 42 and 45, which rendered the Bill unconstitutional. Mr C Burgess (ANC) was elected as the Chairperson. The Committee did not discuss its programme but went straight into a briefing by the Chief State Law Adviser.
The Chief State Law Adviser spoke about the letter written by the President to the Speaker in his referral of the Bill back to the National Assembly. The letter stated that clause 42 referenced the incorrect sub clause. Secondly, clause 45(1) stopped short of creating an offence. This had questioned the constitutionality of the Bill. Possible amendments to clauses 42 and 45 were proposed, plus there were minor typographical errors in the Bill that could be fixed at the same time.
The Democratic Alliance, the African Christian Democratic Party, and the Inkatha Freedom Party opposed proceeding with the Bill. They argued that the President’s letter was vague and did not specifically state that the Committee was limited to only amending clauses 42 and 45. This was a procedural problem. They disagreed with the Chief State Law Adviser that the Committee only had to deal with clauses 42 and 45. The President’s letter clearly spelt out in terms that were inclusive and not exclusive: “In particular, sections 42 and 45”.
The DA and ACDP Members proposed that the Committee seek clarity from the President before they proceed with amending the Bill. They agreed that the Committee had to confine itself to the President’s reservations, but the question was: what were the reservations? The letter was vague and the Committee was sitting with a situation of legal uncertainty. Was it not the duty of the Chairperson of the Committee to write to the President on behalf of the Members asking him to clarify his reservations? The IFP Member proposed that the entire Bill should be deliberated on, clause by clause. ANC Members disagreed and moved to proceed with deliberations on clauses 42 and 45 arguing that the President’s instructions were clear and that they should proceed with the task at hand. A vote was taken and the Committee proceeded with deliberations on the clauses 42 and 45.
The DA and ACDP Members abstained from voting on clause 42, stating that they did not have a problem with the amendment; however, they were opposed the process. After a brief discussion on proposed amendments to clause 45, it was agreed that Members would submit their proposals to the Committee Secretary before the meeting at 2pm the following day.
Election of Chairperson
The Committee Secretary informed Members that the first item on the agenda was to elect a Chairperson to preside over this Ad Hoc Committee, which was re-established on 12 September 2013.
Mr A Maziya (ANC) nominated Mr C Burgess (ANC). Mr J Maake (ANC) seconded the nomination.
The Committee Secretary noted that this was unanimous and Mr Burgess was elected as Chairperson of the Committee.
Opening Statement by the Chairperson
The Chairperson noted that Adv Enver Daniels, Chief State Law Adviser, was present. He also welcomed the new Director-General of the State Security Agency, Ms Gladys Sonto Kudjoe.
there was considerable interest in the Bill, and there had been considerable public involvement as well. As Parliament, they should not try to hide these processes.
The Chairperson informed Members that they were there because of the President’s referral of the Protection of State Information Bill back to the National Assembly. Adv Daniels was invited to the meeting to give the Committee an opinion on the referral, and what the position was on the referral. All Members would be given a chance to have their say.
the Committee would deal with their programme once they had a better idea of what they were going to be doing.
Dr M Oriani-Ambrosini (IFP) said he would not touch on the Committee’s agenda; however, he had some reservations about whether the Committee was validly constituted. Before the Committee could start with deliberations on the Bill, it had to seek clarity on what it was constitutionally allowed to do. He was fine with listening to what Adv Daniels had to say and then commenting on the agenda.
The Chairperson stated that the Committee would move on to Adv Enver Daniels’ presentation.
Chief State Law Adviser briefing on the Referral of the Bill back to the Committee
Adv Enver Daniels informed the Committee that he had received a copy of the letter that the President had sent to the Speaker of the National Assembly. In his letter, the President had expressed reservations about the constitutionality of clauses of the Bill, in particular clauses 42 and 45. The President had stated that they lacked “meaning and coherence” and were consequently “irrational” and accordingly, “unconstitutional”.
The State Law Advisers had looked specifically at clauses 42 and 45 of the Bill. They were guided by what the Constitutional Court had to say about the responsibility of the President in regard to the constitutionality of the Liquor Bill. Judge Edwin Cameron summarised the procedure the President should follows: the President either has to assent to or sign a bill passed by Parliament, or if he has reservations about the bill’s constitutionality, he has to send it back to the National Assembly for reconsideration. Section 79(4) of the Constitution then provided that after reconsideration, once the bill had satisfied the President’s reservations, the President had to assent to and sign the bill. If not, he should refer it to the Constitutional Court for a decision on the bill’s constitutionality. Section 79(3)(a) of the Constitution provided that the National Council of Province (NCOP) should participate in the reconsideration of the Bill if the President’s reservation were of a specific kind that involved the NCOP. Those sections meant that the President had to itemise his reservations in terms of the bill.
Adv Daniels said that he looked at the President’s letter in the context of the Liquor Bill case, as well as other cases, and concluded that the Committee was confined to looking at only clauses 42 and 45 of the Protection of State Information Bill.
Clauses 42 and 45
Adv Daniels read out the sections of the Bill. He noted that clause 45(1) stopped short of creating an offence, and was therefore incomplete. An attempt was made to create the offence in sub-clause 2 but this was vague. The Office of the Chief State Law Adviser proposed that clause 45(1) be amended. At the end of the sub-clause, ending in “… within a competitive bidding process.”, the full stop would be removed and replaced with “… bidding process, is guilty of an offence and liable to the punishment contemplated in subsection 2”.
Turning to clause 42, Adv Daniels reminded the Committee that there had been a number changes where clauses were deleted and this meant the numbering of clauses had changed. Clause 42 incorrectly referred to clause 15 when it should have referred to clause 13. He proposed that this be corrected.
Adv Daniels told the Committee that his Office also had noticed a few typographical errors as well as a spelling error. He believed that these could be corrected before the Bill went to the President - without having to prepare an amendment bill.
Ms D Smuts (DA) said Adv Daniels had correctly referenced Judge Cameron's judgement that the Constitution envisaged that the President’s reservations about bills had to be specified. The President’s letter, unfortunately, lacked specificity. For the very reason that the President’s letter was vague, the Parliamentary Leader of the DA, Ms Lindiwe Mazibuko, wrote to the President on 17 September 2013 and pointed out that according to Joint Rule 203, Parliament may only consider the specified sections of the bill that are referred back to them by the President. Ms Mazibuko told the President that his letter was unclear as to whether he wanted the Committee to look only at clauses 42 and 45 of the Bill or if there were other sections of the Bill that he had constitutional reservations about. This had to be clarified so that the Committee could proceed with the Bill accordingly. She drew Adv Daniels’ attention to an article written by Pierre de Vos, after consultations with other lawyers. Prof De Vos wrote that the return of the Bill to Parliament raised fascinating constitutional issues, as the legal uncertainty of the referral stemmed largely from the vague and inept language used by the President in his referral letter to the Speaker. All constitutional law experts agreed that the President was empowered by Section 79 of the Constitution to refer the Bill back to Parliament if he had genuine reservations about the Constitutionality of the Bill. Prof de Vos also said that it was clear from the letter that the President did not give Parliament a blank check to fix the Bill. He quoted the provisions from the President’s letter asking the NA to reconsider sections of the Bill “…, in particular, sections 42 and 45, …”. He said that this lacked meaning and coherence, and consequently were irrational and unconstitutional. This could mean two things. The President could either be referring only to clauses 42 and 45.
Mr M Nchabeleng (ANC) interrupted, saying he wanted to raise a point of order. The Committee was listening to party inputs; however, they had just received a presentation from the State Law Adviser. He suggested that the Committee focus on the presentation first before they received input from parties.
Ms Smuts said that this was exactly what she was doing. She continued, saying that the de Vos article stated that the letter meant that either only sections 42 and 45 lacked meaning and coherence, and that the perceived lack of meaning and coherence is of such a nature that it rendered the Bill unconstitutional. Or it could mean that these sections, as well as other unnamed sections lacked meaning and coherence. These would also render the Bill unconstitutional. It was difficult if not impossible for Parliament to fulfil its constitutional duty to consider the concerns of the President, as the President had a duty to provide clear and detailed reasons. In the absence of such reasons, Parliament could not attend to the President’s reservations, and there were further implications for the separation of powers. It was possible that the President had in mind the letter that Ms Smuts and Mr S Swart (ACDP) had written to him about clauses 42 and 45, but then he should have said so. Instead, the President made a vague statement about the clauses in his letter. Previous presidents gave copious reasons when they referred Bills. It was that simple. If the President deemed only clauses 42 and 45 incoherent, then all he had to do was to refer Parliament to Ms Smuts and Mr Swart’s letter. However, in absence of this admission, it was the DA’s submission that the Committee should not proceed with the Bill.
Dr Oriani-Ambrosini stated that he disagreed with Adv Daniels that the Committee only had to deal with clauses 42 and 45. The President’s letter clearly spelt out in terms that were inclusive and not exclusive, “In particular, sections 42 and 45”. The statement identifies two clauses, but there might be more. In section 45, there was a subject in one sub clause, a verb in another sub clause and a complement in another sub clause. This was the same for clause 20. The President said that the clause made no sense, and therefore, the Bill was unconstitutional. these were technical issues, and had there been greater willingness to listen to some Members' inputs, the Committee would not now be back again discussing the Bill. He asked the Committee to listen to what Pierre de Vos was saying. Prof De Vos was saying that the President had the power to find an issue of constitutionality and to send the Bill back to the NA. These were not issues of unconstitutionality. Prof De Vos was saying that the President was not competent in sending the Bill back. If he was right, then this meant that the Committee was not competent either. He wanted the Committee to consider this. It would be ill advised not to consider it. The first point was that the Committee should go beyond amending only clauses 42 and 45. Surely, clause 20 was one of the clauses. The second point was about the competence of the President in handling the referral, and hence, the competence of the Committee. The third point was that section 79 of the Constitution spoke to reconsideration of the Bill. Either the Committee reconsidered the Bill, or not. This was what he wanted to do. If this were not done, it would expose the Committee to yet more flaws of constitutionality. The scope of the Committee’s purposes was dictated by section 79 of the Constitution, requiring Members to reconsider the Bill.
Mr M Sonto (ANC) stated that the President’s letter directed the Committee to sections of the Bill, not to the Bill itself. In terms of section 79(1), the President may raise concerns about the constitutionality of any bill and may refer it back to the NA for consideration. The President has therefore referred the Bill in question back to the NA. Rule 203(2)(a) and (c) of the Joint Rules of Parliament provided that the Committee must consider and confine itself to the President’s reservations, and that it must report back to the NA on those reservations. Similarly, Rule 204(2)(a) stated that the debate of the NA should be confined to the President’s reservations. All Members had to agree that the Bill was debated extensively in both Houses of Parliament. Both Houses held extensive public consultations. The President raised specific reservations with clauses 42 and 45. Due to the nature of the issues raised by the President, after deliberations, the Bill would be taken back to the President and not to the NCOP as the matters raised were not of a procedural nature. This Committee was given a responsibility by the NA to proceed with the task at hand. He asked that the Committee proceed with the Bill.
Mr S Swart (ACDP) noted that Mr Sonto said that the matter had been debated extensively. Had the Committee listened to Mr Swart's reservations about the clauses, the Committee would not have these problems. He raised the problem of clause 45 in the debate in the NA. Regrettably, it was not amended at that stage. Ms Smuts and himself had then written a letter to the President outlining their objections to clauses 42 and 45. This was a far-reaching process, and he urged the Committee not to rush into something that had far-reaching implications, and lots of public interest. He also urged the Committee to consider what Prof De Vos said. If the President had only intended the reference to clauses 42 and 45, he would not have used the comma in that sentence – he would have said “in so far as sections 42 and 45 lack meaning”. Instead, the President said “In so far as sections of the Bill, in particular sections 42 and 45”. In Mr Swart’s understanding of the English language, this referred to other sections of the Bill, including clauses 42 and 45. He joined with Ms Smuts in seeking clarity from the President as to whether he referred only to those two sections or if he meant other sections as well. He warned that the Committee had to be very mindful of the process that they were following, as this would impact on final deliberations in the Constitutional Court.
Mr D Maynier (DA) stated that it was correct that the Committee had to confine itself to the President’s reservations, but the question was: what were the reservations? The letter was vague and the Committee was sitting with a situation of legal uncertainty. Was it not the duty of the Chairperson of the Committee to write to the President on behalf of the Members asking him to clarify his reservations?
Mr Maake said that it was clear from Adv Daniels’ explanation that the President must specify his reservations. In Mr Maake's opinion, this is what the President did – he specified his reservations with clauses 42 and 45. Dr Oriani-Ambrosini said that these two clauses was "not a constitutional issue", which Mr Maake disagreed with. He suggested that the Committee start discussing the two clauses. There was no way that the whole Bill would be opened up again. Otherwise, there were people who were saying that the President, together with his legal team, was not very clever. He proposed that the Committee start dealing with the real issues.
The Chairperson asked Mr Swart, Ms Smuts and Mr Maynier if it was incorrect to assume that the President and his legal term understood the Constitution and the law and power that he had in terms of section 79 of the Constitution. Was this incorrect?
Ms Smuts wanted to know what the Chairperson was asking.
The Chairperson repeated the question, asking if it was incorrect to assume that the President and his legal team understood the law, or if they should assume that they did not understand the law.
Ms Smuts said there was no point in the question and she could not understand why the Chairperson would put the question that way.
Mr Swart interjected saying that the point was that the President could have advisers that had views that differed from other views. These views could be incorrect, just as Adv Daniels was incorrect when he certified the Bill. Adv Daniels and the DA members had different legal opinions. The Chairperson could not say that the President was legally correct. His legal advisers could have been incorrect in their interpretation of the Constitution, just as Mr Oriani-Ambrosini has argued.
Ms Smuts agreed, saying that if the Committee is saying that the President knows best, then what they were really saying was that he was above the law. The Committee could not work on this basis.
The Chairperson stated that he did not think they wanted to understand what he was asking. There was a power attributed to the President in terms of section 80 of the Constitution – this is elaborated on in section 79. According to section 80, the president can send bills back to the NA if he is not happy with the constitutionality. The question that he asked was whether it was incorrect to assume that the President did not know what this power was about. The courts would assume that the President understood this power. The Committee must assume that he understood his powers, and if he did, then the President knew what he had to say to the NA.
Mr Sonto added that if the Committee could not assume that the President was right then the same assumption should be made to any opinion given here. If the Committee could not assume that the President was right, then the Committee could not assume that Mr Swart or Ms Smuts was right. The President directed the Committee to two clauses. If they wanted the Committee to look at the entire Bill, then he would have said so.
Ms S Sithole (ANC) suggested that the Committee start with its deliberations on clauses 42 and 45, unless Members had other agendas, or they were lazy.
Mr Swart made a point of order. It was wrong to say that Members were lazy, as they were deliberating on legal issues that had far reaching consequences. He just wanted to have legal clarity about where the Committee was going. It was unfair and unjustified to call certain Members lazy.
The Chairperson stated that this was not a point of order, but Mr Swart’s point was taken into consideration.
Dr Oriani-Ambrosini said that the Chairperson’s question was both pertinent and intelligent. What the Chairperson was really asking was if the President “got it wrong”. There were times when a President got it wrong in exercising his powers. It was a fact, it has happened, and it may have happened in this case. If it did, was it the Members’ role to agree with the President or were Members not bound by parliamentary processes? What he could say was that he and the Chairperson knew that the Bill was going to the Constitutional Court. If he were the Chairperson, he would try to avoid lobbying the Bill, which showed concerns of constitutionality. This was the most controversial, and the most well-considered Bill in the history of Democratic South Africa. It was going to attract the attention of many lawyers. He suggested that the Committee “play it safe” and engage the President on these issues. They should look at the entire Bill because the Constitution required them to do so. The Bill was going to sink, but the Committee could fix it now by doing what the Constitution required of it, which was to reconsider the entire Bill. He pleaded with his colleagues to look at this as a blessing.
Mr Nchabeleng stated that the President gave the Committee an assignment to look at the Bill. He found it difficult that the Committee was discussing other matters and not doing its work.
Mr Maake proposed that the Committee close the discussion about whether to continue with the Bill. The Bill was never going to be "right" to people who did not want it. He asked the Chairperson to close this discussion and to proceed to deliberations on clauses 42 and 45.
Mr Sonto noted that when the President referred the Bill back to the NA, he spoke specifically about his reservations regarding clauses 42 and 45. Why were Members looking for other issues? The Committee was tasked with deliberating on clauses 42 and 45, not the entire Bill.
The Chairperson asked Adv Daniels to comment on what Members had said.
Adv Daniels reminded the Committee that he had quoted Judge Cameron in reference to the Liquor Bill, saying that the President’s reservations had to be specified. When the State Law Advisers read the President’s letter, they concluded that he was directing the Committee to clauses 42 and 45. The President did not specify what his reservations were in respect of other clauses in the Bill. He added that it was not the end of the matter. Section 79 of the Constitution was divided into a number of subsections. Subsection 79(4) said that after reconsideration of the Bill, if it fully satisfies the President’s reservations, the President has to assent to the Bill. Otherwise, he has to refer it to the Constitutional Court for a decision on its constitutionality. Irrespective of how the Committee dealt with the President’s letter, the President will still have to act in accordance with section 79(4). These were the only options open to the President.
The Chairperson thought that the Committee had exhausted this discussion already. It was time to decide the way forward. Adv Danielshad offered solutions in his presentation. Clause 42 had an incorrect reference to clause 15; it should have been clause 13. The Committee did not need to have a long discussion about this clause. Adv Daniels also proposed a particular remedy for clause 45 so that it had better meaning. It was a question of whether the recommendation was a good one. This meant that the process was almost complete and that the Committee programme did not have to be long and drawn out. He had heard both sides of the argument, and now it was time for the Committee to decide what to do.
Ms Smuts wanted to make it clear, especially to the majority party colleagues that she and Mr Swart had written to the President saying that clauses 42 and 45 were incoherent and they did not do what they were supposed to do, namely, to address the most contentious issue in this bill - the limitations of rights to information and free speech. She and Mr Swart were delighted that the Bill was sent back. However, they could not support the Committee incorporating Adv Daniels’ amendments in the Bill. This was because it was a real constitutional problem that the President was not clear in his letter when he referred to “sections” of the Bill. All she asked was that the Committee write to the President asking him to clarify if he meant that the Committee should deliberate only on clauses 42 and 45. The Committee should not proceed unless it received clarity on the matter.
Dr Oriani-Ambrosini wondered why the Committee did not want to fix clause 20, as it had the same problem as clause 45.
The Chairperson said that the Committee should talk about the way forward now.
Mr Nchabeleng said that the letter from the President was clear; it referred the Committee to two clauses – clauses 42 and 45. He suggested that the Chairperson make a ruling about how the Committee should proceed.
The Chairperson said that it was unfortunate that the Members had such different opinions on the way forward. The Committee had to assume that the President understood the law and that he had to be specific with his reservations and what it was that he wanted to fix. The Chairperson did not want to decide this matter himself and so he asked Committee Members for motions on the way forward.
Mr Maziya stated that it was clear that the only way forward was to go to into a vote on whether to proceed with the Bill or not. Mr Maziya wanted to proceed according to the opinion of the legal adviser – focusing only on clauses 42 and 45.
Mr Sonto seconded the proposal.
The Chairperson asked if there were any counter proposals.
Mr Oriani-Ambrosini moved for the Committee to reconsider and decide on the correctness of the timing of the Bill. Thereafter, the Committee could proceed according to section 79 of the Constitution on a clause-by-clause basis.
The Chairperson noted that the promulgation of the Ad Hoc Committee in the parliamentary Announcements, Tablings and Committee Reports (ATC), had the Honourable Member, Mr J van der Merwe, as the official IFP Member in the Committee. He was told that Mr Oriani-Ambrosini was not yet the official Member; therefore, he was entitled to participate as an ordinary Member but he did not have the authority to vote.
Mr Oriani-Ambrosini assured the Committee that this had been corrected.
The Chairperson stated that this was a matter of procedural certainty; he did not want an instance where the procedure could be questioned. He asked if there was a seconder for the proposal. The Chairperson noted that Mr Swart seconded Mr Oriani-Ambrosini’s motion. He said that this motion would stand, on condition that Mr Oriani-Ambrosini was a Member of the Committee. He noted that there was a third motion.
Mr Maynier moved that, in the light of the legal uncertainty created by the President’s letter, the Chairperson should write to the President seeking clarity on his reservations. This was surely a matter that could be cleared up in a short period of time. The Committee could then proceed with its work.
Voting on the Way Forward
The Chairperson put all three proposals before the Committee. Mr Maziya’s proposal received the most votes. The Committee would proceed with deliberations on the Bill.
Mr Swart made a point of order. He said that the dilemma the Committee was faced with was that it had a procedural problem, not with the fact of dealing with those two clauses. By voting on the issue now, the Committee was faced with a dilemma. He, the DA Members and the IFP were voting against the procedure, not the clauses that had to be amended. It seemed as if there was undue haste to complete the deliberations now; it would have been better if Members had a draft proposal to work with. Was there a draft of the proposal that the Committee could consider?
The Chairperson asked if the Committee could dispose of clause 42. Was there a general understanding that there was an incorrect reference made to clause 15 when it should have been clause 13? He wanted to move on to clause 45.
Ms Smuts stated that this was exactly why Mr Swart and herself had asked the President to send the Bill back. However, they would abstain from voting because the process was fundamentally problematic.
The Chairperson asked if Mr Swart agreed with this. It seemed that Ms Smuts did not want to vote on the matter even though this was one of the changes she wanted.
Mr Swart answered that this was the dilemma he was trying to explain to the Committee. The Committee had to address the fundamental problem with the process first.
The Chairperson stated that changing clause 42 was simple. This would allow the Committee to focus on clause 45.
Mr Swart explained that Ms Smuts had just addressed the Chairperson regarding their concerns about the procedure.
The Chairperson asked if Mr Swart was abstaining. Mr Swart answered in the affirmative. He asked if the Committee could agree to amend clause 42. He did not understand whether the Member wanted to “see the words” or not.
Mr Swart clarified that he and Ms Smuts did not object to the amendment, just the procedure that was being followed.
The Chairperson asked if Mr Swart was abstaining from voting on clause 45 as well. He did not understand that he wanted to see the wording of the clause, if he was not going to vote on it.
Mr Swart commented that he wanted to see the words very clearly, as it was his intention to improve the Bill. But, this did not stop Members from recording their objections to the process.
Ms Maake noted that clause 42 was disposed of. It was time to move on to clause 45. He suggested that clause 45 be amended to say “(iv) give undue advantage to anyone within a competitive bidding process; shall be guilty of an offence.”
The Chairperson asked Adv Daniels to take the Committee through the rearrangement that was proposed in the wording of the clause.
Adv Daniels explained that the current clause 45 stopped short of creating an offence in the sense that it did not specifically mention that an offence was created. The sentence was clearly incomplete. An attempt was made to create an offence in sub clause (2), but it was vague. The SLA tried to improve the wording of clause 45(1) as follows:
45.(1) Anyone who intentionally classifies state information as top secret, secret or confidential, in order to achieve any purpose ulterior to this Act, including the classification of state information in order to-
(a) conceal breaches of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), as well as any other unlawful act or omission, incompetence, inefficiency or administrative error;
(b) promote or further an unlawful act, inefficiency, or administrative error;
(c) prevent embarrassment to a person, organisation or the Agency; or
(d) give undue advantage to anyone within a competitive bidding process, is guilty of an offence and liable to the punishment contemplated in subsection (2).
Ms Smuts asked if Adv Daniels did not want to look at clause 45(2) as well. The offence was now created in subsection (1), it could not just be left lying around in subsection (2).
Adv Daniels stated that the main complaint was about subsection (1) but the wording for (2) was amended as well.
Dr Oriani-Ambrosini said that he would do things a little differently than Adv Daniels, so there was less repetitiveness.
Ms Smuts said she could not understand why they were doing this when they needed the proposals on paper.
The Chairperson said the Committee was just listening, not voting yet. It was fair to look at the various proposals. He suggested that the members who have proposals should put their suggestions in writing. Adv Daniels’ proposal would also be made available. He asked Members to submit their proposals by the end of the evening or early tomorrow morning so it could be circulated to the rest of the Committee.
The meeting was adjourned.
Statement by President Jacob Zuma to members of the Press Gallery Association in Parliament, Cape Town 12 September 2013
The Protection of State Information Bill was passed by Parliament and referred to me for assent and signing into law.
The Bill is intended to repeal an old apartheid law, the Protection of Information Act of 1982 which is not in line with the Constitution.
It must provide for a coherent justifiable system of regulating classification, reclassification and declassification of sensitive government information.
It is also intended to protect valuable information.
This is information relating to citizen’s personal information such as identity documents, drivers licences, birth and marriage certificates, company registration information and others. This will help to ensure that this information is not altered, lost or destroyed.
The second information that will be protected is sensitive information which relates to national security.
I have given consideration to the Bill in its entirety and the various opinions and commentaries regarding the constitutionality and tagging of the Bill.
After consideration of the Bill and having applied my mind thereto, I am of the view that the Bill as it stands does not pass constitutional muster.
The Constitution requires that the President must assent to and sign the Bill referred to him or her by the National Assembly.
However, in terms of section 79(1) of the Constitution, if the President has reservations about the constitutionality of the Bill, he or she may refer it back to the National Assembly for reconsideration.
In this regard, I have referred the Bill to the National Assembly for reconsideration insofar as sections of the Bill, in particular Sections 42 and 45, lack meaning and coherence, consequently are irrational and accordingly are unconstitutional.
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